Crime Lab Oversight

Errors prompt states to watch over crime labs
By Richard Willing, USA TODAY
State legislators, troubled by reports of botched DNA tests and other mistakes by forensic analysts, have begun to establish oversight commissions to improve local crime labs and coroner's offices.

Virginia and Texas, where a lab technician mistakenly implicated the wrong man in a rape case, passed laws last year that set up such commissions. Legislators in New Hampshire, Vermont and Minnesota are considering similar plans this spring.

In Illinois, legislators are considering a plan that would require state and private labs to be accredited by a professional crime lab group. Oklahoma has had such a measure in place for three years. In Massachusetts, Gov. Mitt Romney, a Republican, revived the state's dormant oversight panel after a pair of eyes critical to a murder investigation were reported missing from a lab in 2002.

Beginning today, the American Judicature Society, a non-partisan policy research group of judges, attorneys and academics, begins a three-day conference in Greensboro, N.C., to establish recommendations for crime lab practices. The conference's co-chairs include former U.S. attorney general Janet Reno and former federal judge and CIA and FBI director William Webster.
Notable errors

Recent crime lab mistakes:

TexasIn January, special investigator Michael Bromwich found "severe" problems with blood typing and DNA analysis by the Houston police crime lab from 1987 to 2002. Problems included misreading test results that could have cleared a murder suspect. Based in part on the lab's faulty report, the suspect was convicted. He later was exonerated.

Virginia In 2005, an auditor concluded that a state crime lab scientist failed to recognize that DNA tests appeared to rule out a man who had been convicted of murder. The man was cleared by further testing.

MassachusettsInvestigators in 2002 found that a pair of eyes was missing from the state medical examiner's office. Two years earlier, the family of a man who had died in police custody alleged that his body was returned with the heart missing. Gov. Mitt Romney replaced the office's director.

Source: USA TODAY research

Forensic science "is justice's best friend, but it has to not only be used right but done right," says Texas state Sen. Juan "Chuy" Hinojosa, a Democrat who co-sponsored the bill that created Texas' commission. "There needs to be a way to hold the labs accountable."

In Houston, the DNA unit of the city's police lab was closed in 2002 after a local television station, KHOU, reported several problems.

The problems included missing files, contaminated and poorly stored evidence and DNA test results that had been misinterpreted to wrongly match a suspect to a rape he had not committed.

The man, Josiah Sutton, was convicted and served 4½ years in prison. He was released after independent DNA testing revealed the lab error.

The laws and proposed laws differ from state to state. Generally, they require a crime lab's testing procedures and accuracy rates to be approved by an outside body, and they create a system for punishing misconduct.

In New York state, which established the first forensic science commission in 1995, commissioners have moved beyond checking lab standards to setting policies for collecting DNA.

Last December, the panel voted to allow about 40,000 DNA profiles to be taken from criminal parolees and probationers as a condition of plea bargains. The profiles were added to a state database of known offenders, which is linked to a national DNA database run by the FBI.

Defense lawyers generally have favored setting up forensic science commissions.

In a statement last year, the New York City-based Innocence Project said the Texas commission would improve both the "quality" of Texas' justice system and "Texans' faith in that system."



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Will we see Cameras in the Supreme Court

Thursday March 30, 2006 9:46 PM

By LAURIE KELLMAN

Associated Press Writer

WASHINGTON (AP) - Supreme Court hearings could be shown on TV under a bill approved by a Senate committee Thursday but opposed by some high court justices.

Two bills that, if they became law, would allow more federal court proceedings to be televised moved a step forward in the Judiciary Committee.

One, which passed 12-6, would require the Supreme Court to permit television coverage of all open sessions unless a majority of the justices decide that coverage in a particular case would violate the due process rights of a party before the court.

Judiciary Committee Chairman Arlen Specter said the Supreme Court becomes a ``super-legislature'' when it decides far-reaching public policy questions, and should make its proceedings more accessible.

``The public has a right to know what the Supreme Court is doing,'' Specter, R-Pa., said.

The proposal, long opposed by some justices and interest groups, gained new life last year when Chief Justice John Roberts said during his confirmation hearing that he would keep an open mind on the question of cameras in courts.

Two sitting justices, Anthony M. Kennedy and Stephen Breyer, and former Justice Sandra Day O'Connor, left no doubt about their opposition to cameras in the high court during an American Bar Association event in November.

And several justices have said they were troubled by the televised O.J. Simpson trial a decade ago.

Another sitting justice was more blunt: ``The day you see a camera come into our courtroom it's going to roll over my dead body,'' Justice David Souter told a congressional panel in 1996.

While some states allow some camera coverage of court proceedings, cameras are forbidden in federal district courts. Federal appeals courts have varying policies. Resistance has been stiffest in the Supreme Court, where reporters are prohibited from bringing any recording device into the room where the nine justices hear arguments in about 80 cases a year.

A second bill, sponsored by Judiciary Committee members Chuck Grassley, R-Iowa, and Chuck Schumer, D-N.Y., would allow federal trial and appellate judges to permit cameras in the courtroom. The measure passed the panel 10-6

Crime Returns to New Orleans

The New York Times

March 30, 2006
As Life Returns to New Orleans, So Does Crime
By ADAM NOSSITER

NEW ORLEANS, March 29 — The wail of police sirens is back, and gunfire again punctuates the night. As drug dealers move into flood-damaged houses, alarmed residents say that in the last few weeks, they have begun to sense a return to the bad old days before Hurricane Katrina, when crime was an omnipresent straitjacket on life in this city.

In a city that once led the nation in homicides per capita, crime has long been a leading indicator of New Orleans's health and prospects — an unavoidable part of the equation for a walk around the block or a trip to the grocery store.

That diminished greatly after the storm, when several hundred thousand people were evacuated. But there are signs that the past may be returning, with a new twist.

Police officials say the landscape of abandoned houses, stretching block after block, after Hurricane Katrina is being incorporated into a revived drug trade, with the empty dwellings offering an unexpected convenience to dealers returning from Houston and Atlanta.

Residents concur, pointing to this boarded-up house or that abandoned-looking shed as a place where they have seen young men congregating.

"It's coming back," said Capt. Timmy Bayard of the New Orleans police, who is in charge of narcotics investigations.

"It's not as plentiful as it was," Captain Bayard said. But, he added, "We're starting to grab some people." His men, searching abandoned houses in the Eighth Ward, have found drug stashes. He said it was like "looking for a needle in a haystack."

There are popping sounds of gunfire at night in the Central City and St. Roch neighborhoods flanking downtown — not as often as before, but enough to induce unease.

"Less, yeah, but it's started back up," said the Rev. A. P. Williby, who owns a house in Central City. "Shooting and killing — that's what we had before. It ain't going nowhere."

Two shootings, one of them fatal, occurred in January and earlier this month.

Parasol's, a classic old-line bar in the Irish Channel neighborhood, was held up at midnight recently. And a young man was killed after handing over his wallet in the Faubourg Marigny, a neighborhood of popular bars and restaurants.

On Web forums, there are reports of robberies and break-ins.

In Houston, which reported a sharp spike in killings after Hurricane Katrina, police officials say they have noticed a decline since the beginning of the year. Homicides were up 24 percent in 2005, but Houston police officials say the number would have been down 2 percent, absent cases in which either the suspect or the victim was a storm evacuee.

Last fall, there were "multiple" hurricane-related killings in Houston nearly every weekend, said Sgt. Brian Harris of the Houston police, but the violence had significantly eased, he said.

New Orleans again appears to be drawing the people who wreaked havoc on its streets before the storm. A local murder suspect wanted in Houston, for example, drifted back here and was arrested this month in Kenner, a New Orleans suburb.

In the past, even when there were lulls in crime, many residents felt as if they were living in a city under siege. Perception became part of the reality, fueling an exodus of whites and blacks to the suburbs or out of state.

The drug culture has been deeply ingrained here and never fully disappeared. A local rapper called Juvenile, in his new post-hurricane album, declaims: "E'ybody need a check from FEMA/So he can go and sco' him some co-ca-een-uh."

But crime is nowhere near its pre-storm levels. With the city's population reduced by at least three-fifths, statistics indicate that crime is down 60 percent to 70 percent over all, the department said.

There have been 16 killings this year, compared with more than 60 for the same period last year, which means quieter days for the police but still works out to an annualized rate of 32 killings per 100,000 people, ahead of Cleveland and Chicago.

A gnawing sense of vulnerability, particularly in poorer neighborhoods, is returning. On any block, it may have no more concrete basis than the sight of young men hanging out, but it is real nonetheless.

"They're beginning to surface again," said Alfred Barrow, a newspaper deliverer, painting his porch on an empty-looking block at Third and Magnolia in Center City.

"I'm out here throwing papers at 3 a.m., and I see them. What reason is there for them to be out there?" The anxiety is not helped by the Police Department's struggle to return to normal. At about 1,400 officers, the department is not far from its strength of just under 1,600 officers before Hurricane Katrina.

But the department is operating out of trailers, much of its data-gathering capability is impaired because of storm damage, and about 80 percent of its officers lost their homes in the storm.

There is evidence that the non-working poor — the population most implicated in crime, as victims and perpetrators — may be returning in higher percentages, for now, than middle-class residents washed out by the storm. A population map prepared for the city appears to suggest as much.

"It looks like the worst have come back," said Andrew Jackson, a homeowner on Villere Street in the Eighth Ward.

"That house over there," he said, pointing to an empty-looking dwelling down the block where he said youths congregate. "You don't see 'em during the day, but you see them at night."

There are a few hopeful signs. Before, this was a city virtually awash in guns, experts say. The contractor who cleaned up the city's storm drains after Hurricane Katrina said his crews had recovered at least a dozen firearms. Guns are not as prevalent, the police say.

Another aid, officers and residents say, is a new level of cooperation from citizens who had traditionally mistrusted the New Orleans police.

For years, the police here had complained that witnesses and residents refused to help, fearing retribution from gangs and drug dealers.

Killings in broad daylight on busy blocks produced few or no witnesses.

Now, "the people who are here are the people who want to be here, and they don't want that back," said Kenny Zeiger, who described his block in the St. Roch area as "one of the three worst corners in the neighborhood" for drug activity before the storm.

"The people are calling the cops more," Mr. Zeiger said.

Capt. John Bryson commands the Sixth District in Central City, a high-crime area.

"It's incredible," Captain Bryson said. "People you normally wouldn't believe would want an association with the Police Department call us up."

He is confident about keeping the lid on, even as more people return.

"We have control," he said. "We have gained this ground."

Less than a mile away, Mr. Barrow, the newspaper deliverer, is skeptical — about the present, and the future.

"It don't take much to improve what it was," he said, "because what it was, was probably the most vicious killing scene in the U.S."



* Copyright 2006The New York Times Company

Refusing to Snitch

>Rayco Saunders, an ex-drug dealer turned pro boxer, wears a STOP SNITCHING shirt to protest paid police informants.

By Jason A. Cohn for USA TODAY

Worse, he was a witness — her witness — and the intended victim in an attempted murder case that had brought him, her and the defendants to court that day last fall.

This was Rayco "War" Saunders — ex-con, pro boxer and walking billboard for a street movement that has sparked a coast-to-coast beef involving everyone from professors to rappers.

Pellegrini, thinking "witness intimidation," told Saunders to lose the hat and reverse the shirt. Saunders, crying "First Amendment," refused. He left the courthouse, shirt in place. Case dismissed. "In almost every one of my homicides, this happens: 'I don't know nothin' about nothin', " the prosecutor says. "There is that attitude, 'Don't be a snitch.' And it's condoned by the community."

Omerta, the Mafia's blood oath of silence, has been broken by turncoat after turncoat. But the call to stop snitching — on other folks in the 'hood — is getting louder.

Is it an attempt by drug dealers and gangsters to intimidate witnesses?

Is it a legitimate protest against law enforcers' over-reliance on self-serving criminal informers?

Or is it bigger than that?

Take the case of Busta Rhymes.

The hip-hop star has refused to cooperate with police investigating the slaying of his bodyguard Feb. 5 outside a Brooklyn studio where Rhymes was recording a video with performers such as Missy Elliott and Mary J. Blige. Police say that although Rhymes and as many as 50 others may have seen the shooting, no one came forward — an echo of the silence that followed the unsolved murders of rappers Tupac Shakur, the Notorious B.I.G. and Run-DMC's Jam Master Jay.

It's the code of the street: To be a credible rapper, you have to know when to shut up.

"Under pressure, I lie for ya, die for ya," Lil' Kim once rapped. Now she's in a federal jail in Philadelphia for failing to tell a grand jury what she knew about some friends involved in a shooting.

Rhymes' silence in the death of Israel Ramirez seemed to puzzle New York's seen-it-all police commissioner, Ray Kelly, an ex-Marine, career NYPD cop and U.S. Customs chief. "Your employee is murdered in front of you," he told reporters, so "you'd think he might want to talk to the police."

By Eric Jamison, AP Busta Rhymes arrives for a club opening in Las Vegas in April 2005. Less than a year later, his bodyguard was shot.

Not necessarily, says David Kennedy, director of the Center for Crime Prevention and Control at John Jay College of Criminal Justice in New York. "There's such animosity toward the police in some urban communities that even people who aren't afraid, and who hate crime, still feel cooperating is something good people don't do," Kennedy says. "That's the Busta Rhymes story. He has nothing to fear. He just doesn't want to talk. His reputation would take a dive if he did."

The code of silence, he says, "is breaking out in a way we've never seen before."

Saunders agrees: "It's a movement, that's what it is — a stop snitching movement."

From street code to slogan

The stigma against snitching is an old one, but the Mafia never took out newspaper ads to promote omerta. So why is an unwritten rule printed on thousands of T-shirts?

Start with the war on drugs. Over the past two decades, law enforcers have made more drug arrests and turned more defendants into informers than ever before. According to the U.S. Sentencing Commission, the agency that establishes federal court sentencing practices, about one-third of drug trafficking prosecutions involve informers' "substantial assistance." That makes them eligible for reduced sentences under otherwise inflexible federal sentencing guidelines.

Informers are a necessary evil, says Cmdr. Maurita Bryant, a 29-year veteran of the Pittsburgh Police Department. "We have to deal with who we have to deal with. ... If a dealer needs to make a deal, he'll tell on his mother. It may not be right, but it's all we have."

Some criminal informers who are allowed to remain free commit more crimes; some return to crime after a shortened prison sentence; some frame others, or tell prosecutors what they want to hear. Boston defense lawyer Harvey Silverglate says the system encourages defendants "not only to sing, but to compose."

According to a study by the Northwestern University Law School's Center on Wrongful Convictions, 51 of the 111 wrongful death penalty convictions since the 1970s were based in whole or in part on the testimony of witnesses who had an incentive to lie.

Alexandra Natapoff, a professor at Loyola Law School in Los Angeles, says that, based on federal statistics, one of every four black men from 20 to 29 is behind bars, on probation or on parole, and under pressure to snitch. She estimates one in 12 of all black men in the highest-crime neighborhoods are snitching.

She says informers strain the social fabric of poor minority neighborhoods, where as many as half the young men have been arrested. "Every family gathering, every party, every backyard barbecue probably has someone who's secretly working as an informer."

This is the world Rayco Saunders inhabits. It's filled, as he puts it, with "guys doin' all this crime and not doin' no time, because they're telling on the next man."

Hence a backlash — "stop snitching." The slogan appeared in Baltimore about two years ago as the title of an underground DVD featuring threatening, gun-wielding drug dealers and a brief appearance by NBA star and Baltimore native Carmelo Anthony. Anthony, who later said he didn't know the video's theme, told ESPN The Magazine that the dealer-turned-informer excoriated in the DVD "ran our neighborhood. Now he's working with the state and the feds. You can't do that. He turned his back on the 'hood."

The black community is divided. Rapper Chuck D of Public Enemy has blasted the Stop Snitching campaign on the hip-hop group's website: "The term 'snitch' was best applied to those that ratted revolutionaries like Huey P. Newton, Bobby Seale, Che Guevara. ... Let's not let stupid cats use hip-hop to again twist this meaning for the sake of some 'innerganghood' violent drug thug crime dogs, who've sacrificed the black community's women and children."

Movement prompts legal backlash

Whatever its intent, the Stop Snitching movement has galvanized officials already apoplectic about witness reluctance and witness intimidation.

States and localities spend a fraction of what the federal government devotes to witness protection, although this month Pennsylvania restored $1 million for that purpose. The move came as more than a half-dozen witnesses recanted earlier testimony in the trial of men accused in the Philadelphia street shooting death of a third-grade boy.

By Don Heupel, AP Investigative Services Chief Anthony Barba, of the Buffalo Police Department, holds one of the silk-screened shirts with the logo.

"If the word 'snitch' comes out of someone's mouth, I go insane," says Pellegrini, the Pittsburgh prosecutor. "When young men and women see rappers refuse (to cooperate), they think it's cool. How do we tell them, 'we'll support you,' when they see that?"

Especially, she says, when the slogan is blatantly used to intimidate witnesses. Last year, supporters of an accused drug dealer on trial in Pittsburgh federal court wore T-shirts around town bearing witnesses' photos and the inscription "Stop Snitching. " U.S. Attorney Mary Beth Buchanan says one, Garry Smith, had a $100,000 price on his head.

"Everybody in law enforcement is beside themselves," says Kennedy of John Jay College. "They can't investigate cases. They can't prosecute cases. The clearance rate for some serious crimes is tanking."

Stop Snitching T-shirts have been banned from a number of courthouses. Boston Mayor Thomas Menino, whose city recorded the most homicides in a decade last year, threatened to send police into stores to pull them off the shelves.

Following the furor over the Stop Snitchin' DVD, Maryland raised witness intimidation from a misdemeanor to a felony, and Baltimore police made a tape of their own, Keep Talking. "People have to snitch," says Peter Moskos, a former Baltimore street cop. "That's how criminals get caught."

Saunders' life may have been saved by a snitch.

Pellegrini says an informer told police that an ex-con had hired another man to kill Saunders because the boxer was having an affair with his girlfriend. The man and his accomplices were arrested before the hit could be carried out. They were scheduled for a court hearing the day last fall that Saunders showed up in his Stop Snitching T-shirt.

Saunders and Pellegrini agree he was there to warn the men not to testify in other pending cases. But they disagree on why: Pellegrini says Saunders, whom she calls a "thug," is in cahoots with other criminals who feared the men's testimony. Saunders says he thought the defendants would try to save themselves by selling out others.

Saunders says he hates snitching so much that he not only wears the T-shirts himself but has given them as gifts to friends and relatives. "They love the T- shirts," he says. "It's way overdue for somebody to step up and speak about these things that's going on with these informants and these guys walking around here with immunity to do whatever they want to do."

At 31, Saunders has had a hard life. He says he never knew his father; his mother died of a drug overdose when he was 11. He was stabbed in the back at 15, shot in the chest at 21. He says he shot at people himself and dealt drugs. He was arrested six times from 1994 to 1997 and served four years in prison after a shootout with a police officer. He says he was framed.

Since leaving prison, he has pursued a career as a pro boxer, compiling a record of 15-7-2. In 2004 he won the North American Boxing Council cruiserweight championship. In an interview at the gym where he trains, he outlines a stop-snitching creed:

•Don't snitch on others just to save yourself. "Stop snitching is for those guys out there ... selling more drugs than Noriega, and their only out is to tell on somebody. ... If a (criminal) wants to be a Good Samaritan, OK. But send (him) to jail. Don't give him immunity to do what he wants on the street."

•Stop Snitching doesn't mean stop talking to police. "It's always misconstrued by the public, or the powers that be, that we're trying to intimidate the regular people or the law-abiding citizens. That's not what it's about. ... If that is your only outlet, to call the police, that's what you do."

•But witnesses have no obligation to help police. "Do your job — you're the police. ... I've been wronged by the system. Do you think I would help the system? ... Do cops snitch on other cops?"

•The authorities can't protect witnesses. "What's happening to the innocent witness? They get dead or ... terrorized for life."

•Sometimes you must right wrongs yourself. "I'm a man, and I can handle my own situations like a man. ... I've done dirt. I'll admit that. So I can't run to the police."

Later, he's out on the street, wearing one of the T-shirts. Standing nearby is a woman dressed as the Statue of Liberty to advertise the services of her employer, Liberty Income Tax.

"The people who are snitching, a lot of them end up dead, a lot of them end up hurt," says Lady Liberty — Ernestine Whitaker of Wilkinsburg, whose nephew was threatened after he witnessed a crime. "So the snitching doesn't do anything for the person who's snitching."

She looks at Saunders, whose muscular chest bulges beneath the T. "I'd wear one of those," she says.

Does Court have Jurisdiction

March 27, 2006
Detainee Case Will Pose Delicate Question for Court
By LINDA GREENHOUSE
WASHINGTON, March 26 — The Supreme Court's announcement four months ago that it would rule on the validity of the military commission by which the Bush administration wants to try Osama bin Laden's former driver, on charges of conspiracy to commit terrorism, appeared to mark a resumption of a struggle for supremacy between the court and the White House.
That struggle initially played out in three cases on terrorism and civil liberties in June 2004. In accepting the new case, as in the previous ones, the justices rejected the administration's argument that the court should simply stay out and let the president conduct his fight against terrorism unconstrained by judicial oversight.
But no one foresaw back in November that the case of the driver, Salim Ahmed Hamdan, to be argued on Tuesday, would present the Supreme Court with an additional and perhaps even greater challenge.
In the face of a measure that Congress passed and President Bush signed into law in late December to strip the federal courts of jurisdiction over cases brought by detainees at the United States naval base at Guantánamo Bay, Cuba, where Mr. Hamdan has been held since 2002, the court must decide whether it retains the right to proceed with this case at all.
For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance. Not since the immediate aftermath of the Civil War, in a case that arose from the power struggles of the Reconstruction era, has the Supreme Court permitted Congress to divest it of jurisdiction over a case it has already agreed to decide.
In that case, Ex Parte McCardle, the court had already heard four days of argument in an appeal brought by a rabble-rousing Mississippi newspaper editor who had been taken into custody and charged by the military government with fomenting insurrection.
Fearful that a Supreme Court ruling in favor of the editor, William H. McCardle, could result in invalidating military control of the former Confederate states, Congress enacted a law over President Andrew Johnson's veto to deprive the court of jurisdiction. The court then dismissed the appeal, rejecting the argument by McCardle's lawyer that it was permitting Congress to usurp the judicial function.
In the new case, Hamdan v. Rumsfeld, No. 05-184, the Bush administration filed a motion with the court in early January, days after the Detainee Treatment Act was signed into law, urging immediate dismissal of Mr. Hamdan's appeal.
"It is well settled that statutes that remove jurisdiction apply to pending cases and ordinarily should be given immediate effect," the administration, citing the McCardle case, said in the brief accompanying its motion.
More than a month later, on Feb. 21, the court declined to act on the motion, announcing instead that it would take up the jurisdictional question as part of the argument on the merits of the case. It added 30 minutes to Tuesday's argument, originally scheduled for one hour, for that purpose.
The McCardle case has been seen by many modern legal scholars as problematic, a regrettable expression of judicial weakness. Mr. Hamdan's lawyers cite it as well, but for a different proposition. While Congress spoke clearly in the court-stripping amendment at issue in the McCardle case, their brief tells the court, the Detainee Treatment Act is ambiguous on its application to pending, as opposed to future, cases. The court should interpret the act as not applying to the Hamdan case to avoid the "grave constitutional questions" that would otherwise arise, they say.
A group of law professors who filed a brief on this point on Mr. Hamdan's behalf warn the court that to give up jurisdiction would be to yield to "an unconstitutional interference with access to courts and an attack on the fundamental structure of the Constitution."
The argument rests in part on the observation that according to the language of the Detainee Treatment Act, Guantánamo detainees who are tried by a military commission will have only a circumscribed right to a subsequent appeal in federal court, in which they could not raise the basic challenge to the commission's operation that Mr. Hamdan is presenting in his Supreme Court case. So if the justices cannot decide his case, or cases brought by some 150 of the other 500 Guantánamo detainees now pending in the lower courts, fundamental questions about this alternative system of justice will go unresolved.
There may be a separate obstacle in the Supreme Court's way. Only eight justices are participating in the case, raising the prospect of a 4-to-4 tie. Chief Justice John G. Roberts Jr. is recused because he was a member of the three-judge panel of the United States Court of Appeals for the District of Columbia Circuit that upheld the government's position in the Hamdan case last July, four days before Mr. Bush nominated him to the Supreme Court.
A tie vote in the Supreme Court ordinarily simply affirms the lower court decision, without issuing an opinion or setting a precedent. But in this case, there is no lower court opinion on the jurisdictional question, since there was no Detainee Treatment Act when the appeals court ruled last July.
It would require a majority, five of the eight votes, to grant the government's motion to dismiss the case, but the matter might not be as straightforward as that. Even if the government had not filed its motion, the court would still be obliged to assure itself that it has jurisdiction to proceed, in this as in any other case. Whether a tie favors jurisdiction or dismissal appears to be an open question of Supreme Court procedure.
Military commissions are not new; they were first used by Gen. Winfield Scott during the war with Mexico in the 1840's. But there have been none since the World War II era. If the court addresses the merits of the Hamdan case, it must decide whether Mr. Bush's military order of Nov. 13, 2001, establishing military commissions to try noncitizens for "acts of international terrorism," had proper authorization.
The administration argues that there were "multiple authorizations": from the Congressional resolution known as the Authorization for the Use of Military Force, adopted days after the terrorist attacks of Sept. 11, 2001; from the Uniform Code of Military Justice, which refers to military commissions and authorizes the president to prescribe rules for their operation; and from the president's inherent powers as commander in chief.
In addition, the administration argues that the Detainee Treatment Act itself ratified the establishment of military commissions when it circumscribed judicial review of their operations.
Mr. Hamdan's military and civilian lawyers, as well as the dozens of organizations and individuals supporting his appeal as "friends of the court," argue to the contrary that no Congressional enactment or inherent power authorized the president to set up what they call a "jerrybuilt tribunal" that falls short of the procedural protections offered by American military law and required by the Geneva Conventions.
In addition, they argue, conspiracy, with which Mr. Hamdan has been charged, is not a war crime and is therefore not subject to trial by military commission.
The administration argues that the Geneva Conventions do not apply to the conflict with Al Qaeda and that their protections cannot, in any event, be invoked by individual detainees. These assertions have provoked a flood of counterarguments from international law specialists, former senior diplomats and federal judges, and human rights organizations.
Copyright 2006The New York Times Company

Tie-in between Crime and Bank Mergers?

March 17, 2006

Officer Krupke, the Merger Made Me Do It

By FLOYD NORRIS

DO big bank mergers lead to more crime? And is that a reason to toughen antitrust enforcement?

The idea sounds unlikely, and admittedly the effect is a small one. But a persuasive new study published in the April issue of The Journal of Finance finds a relationship.

"This does not explain crime patterns in the United States, but it does indicate that finance matters for things you might not have expected," said Mark J. Garmaise, an assistant professor of finance at U.C.L.A.

Mr. Garmaise, who conducted the study with Tobias J. Moskowitz, a professor of finance at the University of Chicago, notes that studies around the world have shown that finance matters when it comes to economic growth, and that prosperity affects the level of property crime, such as car thefts and burglaries.

What they did was get extensive data on commercial lending — for such things as apartment buildings and stores — in 11 states. They had the exact location of each piece of property, and information on the mortgage lender, and thus could measure how competitive the lending market was by looking not at countywide data but at lending within 15 miles of each project.

Then they looked at large bank mergers, where each bank had assets of more than $1 billion, and at areas where the two banks had previously been competitors.

Here is what they found: If bank concentration increases by 10 percent, you can expect higher interest rates on loans, and smaller loans. And perhaps, although the relationship is not statistically significant, fewer loans will be made.

Property crime rates increase 1.8 percent over the rate in areas where there is no increase in banking concentration.

There is, as would be expected, no change in violent crimes. Murder and rape are not economic crimes.

The effects seem to fade away in three years, presumably because competition returns as other banks take note of the higher margins, but three years is a long time.

That can be particularly true in areas that face the risk of decline. With less lending, areas can seem older and less attractive.

Through statistical measures, the authors show that the causation does not run the other way, that declining areas do not lead to bank mergers. By excluding smaller mergers, they also tried to be certain that mergers were not caused by signs of decline in a bank's lending area.

"We're not saying that all mergers are bad," Mr. Garmaise said in a telephone interview. "But it is an implication of the paper that bank mergers have effects on construction, income levels and crime."

To make it worse, he said, "the crime effects are much larger in poor neighborhoods." The message, he added, "is that regulators should consider variables like that in deciding whether to approve a merger."

A 10 percent increase in bank concentration, measured the way antitrust regulators measure it, can occur from many mergers. Imagine a very competitive market with six lenders, four with 20 percent market shares and two with 10 percent each. If the bottom two merged, concentration would rise 11 percent. It would increase 22 percent if a larger bank bought a smaller one.

Another way to look for evidence that the pattern works is to see what happened to crime in states that allowed statewide branch banking after barring it earlier, thus making competition easier. That has led to an average 1.5 percent decline in burglaries.

That does not mean that criminals should be allowed to plead that mergers caused them to violate the law. But it does show that a lack of competition in banking can hurt even those who never seek a loan.

Bank Mergers and Crime?

March 17, 2006
Officer Krupke, the Merger Made Me Do It
By FLOYD NORRIS
DO big bank mergers lead to more crime? And is that a reason to toughen antitrust enforcement?
The idea sounds unlikely, and admittedly the effect is a small one. But a persuasive new study published in the April issue of The Journal of Finance finds a relationship.
"This does not explain crime patterns in the United States, but it does indicate that finance matters for things you might not have expected," said Mark J. Garmaise, an assistant professor of finance at U.C.L.A.
Mr. Garmaise, who conducted the study with Tobias J. Moskowitz, a professor of finance at the University of Chicago, notes that studies around the world have shown that finance matters when it comes to economic growth, and that prosperity affects the level of property crime, such as car thefts and burglaries.
What they did was get extensive data on commercial lending — for such things as apartment buildings and stores — in 11 states. They had the exact location of each piece of property, and information on the mortgage lender, and thus could measure how competitive the lending market was by looking not at countywide data but at lending within 15 miles of each project.
Then they looked at large bank mergers, where each bank had assets of more than $1 billion, and at areas where the two banks had previously been competitors.
Here is what they found: If bank concentration increases by 10 percent, you can expect higher interest rates on loans, and smaller loans. And perhaps, although the relationship is not statistically significant, fewer loans will be made.
Property crime rates increase 1.8 percent over the rate in areas where there is no increase in banking concentration.
There is, as would be expected, no change in violent crimes. Murder and rape are not economic crimes.
The effects seem to fade away in three years, presumably because competition returns as other banks take note of the higher margins, but three years is a long time.
That can be particularly true in areas that face the risk of decline. With less lending, areas can seem older and less attractive.
Through statistical measures, the authors show that the causation does not run the other way, that declining areas do not lead to bank mergers. By excluding smaller mergers, they also tried to be certain that mergers were not caused by signs of decline in a bank's lending area.
"We're not saying that all mergers are bad," Mr. Garmaise said in a telephone interview. "But it is an implication of the paper that bank mergers have effects on construction, income levels and crime."
To make it worse, he said, "the crime effects are much larger in poor neighborhoods." The message, he added, "is that regulators should consider variables like that in deciding whether to approve a merger."
A 10 percent increase in bank concentration, measured the way antitrust regulators measure it, can occur from many mergers. Imagine a very competitive market with six lenders, four with 20 percent market shares and two with 10 percent each. If the bottom two merged, concentration would rise 11 percent. It would increase 22 percent if a larger bank bought a smaller one.
Another way to look for evidence that the pattern works is to see what happened to crime in states that allowed statewide branch banking after barring it earlier, thus making competition easier. That has led to an average 1.5 percent decline in burglaries.
That does not mean that criminals should be allowed to plead that mergers caused them to violate the law. But it does show that a lack of competition in banking can hurt even those who never seek a loan.

6th Amendment Issued Considered by Ohio Supreme Court

	Posted on Wed, Mar. 15, 2006
	Justices consider evidence question Ohio's high court hears Sixth Amendment case By Dennis J. Willard Beacon Journal Columbus Bureau COLUMBUS - Dating to 1791, a fundamental right in the U.S. legal system has been that someone charged with a crime has the right to face his accuser. What if the accuser has died and the evidence that potentially could convict an alleged rapist is a statement given to a nurse who examined the victim? On Tuesday, the seven justices of the Ohio Supreme Court heard the unusual story of Ann Mazurek, a Lakewood teacher who, before she died weeks later from an unrelated epileptic seizure in 2003, had accused James Stahl of Wadsworth of kidnapping and raping her in December 2003. Normally, statements made to doctors, nurses and psychiatrists are admissible as hearsay evidence, but Mazurek's case is not typical, and a 2004 U.S. Supreme Court decision issued just weeks before Stahl was to go to trial complicated matters. That federal ruling stated a ``testimonial'' was inadmissible unless the person giving it appears in court to be cross-examined by attorneys representing the accused. Ohio Supreme Court justices now must determine if Mazurek knew the information she was telling nurse Jennifer Markowitz would be considered ``testimonial'' -- so it could be used at trial -- or if she was just providing information during a medical examination. The justices, during oral arguments, focused on a consent form Mazurek signed as she was examined at the Developing Options for Violent Emergencies (D.O.V.E.) medical unit at St. Thomas Hospital in Akron a day after the attack. Brian Pierce, Stahl's attorney, told the court the form clearly indicates the information would be used in the investigation and prosecution of a crime. Philip D. Boganoff, a Summit County assistant prosecutor, told the justices that the 9th District Court of Appeals ruled previously that Mazurek may not have known her statement to the nurse was a testimonial to be used at trial. He also said there was no evidence in the record that Mazurek read the consent form. He said patients routinely sign papers while receiving medical treatment. Boganoff said Mazurek already had given a statement to Richfield police and that the information she was giving the nurse was intended to help her with treatment. Justice Maureen O'Connor questioned Stahl's attorney about the statement, noting a patient like Mazurek may have been answering questions to aid medical personnel in making decisions about further treatment, HIV and discharge plans. Pierce agreed but said that information could not be used if Mazurek believed it also would be evidence for a trial. ``Can statements have a dual purpose?'' O'Connor asked. ``Yes,'' Pierce responded. In an interview after the hearing, Pierce said Mazurek first went to the Richfield police to report a crime. The police made the decision to send her to the D.O.V.E. medical unit. ``She's not complaining of any injuries or illness. She went to the police to report a crime,'' Pierce told the justices. He said the case may have been different if Mazurek went to the hospital for medical treatment; then her statements would have been admissible. Justice Paul Pfeifer noted the Richfield police officer who transported Mazurek to the hospital was present while the nurse examined and questioned her. ``Doesn't that undermine your argument that this is not testimonial?'' Pfeifer asked the prosecutor. ``That's a lot different than being in a private room with a doctor or a nurse. The whole confidential nature of being in an exam room seems to go out the window when you have a police officer sitting there.'' Boganoff said the police officer did not suggest questions. ``The issue is, was that statement made in anticipation of litigation, not whether the police officer was sitting there,'' he said. Stahl has yet to stand trial. Pierce told the high court his client would be deprived his Sixth Amendment right to face his accuser in court and would not receive a fair trial if the testimonial evidence is allowed. In 2004, Summit County Common Pleas Judge Marvin Shapiro ruled against allowing the nurse's statement. The 9th District Court of Appeals overturned that ruling in March 2005.

Media Distortion -Who Should We Believe

This article highlights a problem without a solution. Did the bloggers act to demonstrate media bias? How can a reader or listener determine if the "news" is factual or colored in any manner? How much of what we see and hear is intentional disinformation?


March 14, 2006

Chinese Bloggers Stage Hoax
Aimed at Censorship Debate
By GEOFFREY A. FOWLER and JUYING QIN
March 14, 2006; Page B3

Some well-known bloggers in China used an unlikely tool last week to make a point that Western news media and politicians misunderstand Chinese censorship. They shut themselves down.

Notices posted on the Chinese-language blogs Massage Milk and Milk Pig announced that "Due to unavoidable reasons with which everyone is familiar, this blog is temporarily closed."

Within hours, English-language bloggers and Western news media spread the word that the Chinese government had closed the sites. The BBC news service reported that Massage Milk was "closed down by the authorities," adding that the act had coincided with the annual session of the Chinese legislature. Picking up on that report and others from news services, French free-press group Reporters Without Borders issued a statement condemning the closure of the blogs.

China has recently stepped up its censorship of dissent and monitoring of the Internet, late last year asking Microsoft Corp. to take down the blog of journalist Michael Anti, among other acts. After the topic hit the front pages of U.S. newspapers and magazines, Congress held hearings in February about the ways in which U.S. Internet companies cooperate with Chinese censorship.

But in this case, it appears the Chinese government wasn't involved. By Thursday, a day after the shut-downs, the blogs were back up and running.

In an interview, Beijing-based journalist Wang Xiaofeng of Massage Milk says he shut his blog down to make a point about freedom of speech -- just one directed at the West instead of at Beijing. He calls the Western press "irresponsible" and says that the hoax was designed "to give foreign media a lesson that Chinese affairs are not always the way you think."

"They are not just supposed to report based on their own perceptions, without understanding the circumstances in China," he says, noting that the BBC's report was exactly what he expected. The BBC didn't call him to discuss the issue before publishing its stories, he says.


London-based BBC reporter Sebastian Usher, who wrote the original BBC report, says he did try to contact Mr. Wang but wasn't able to reach him. "There is a knee-jerk reaction amongst journalists -- including myself -- to stories that seem to show the Chinese cracking down on freedom of expression on the Internet," he wrote in an email. The BBC later corrected its story citing a government role in the shutdowns.

Reporters Without Borders issued a correction to its statement on March 9, calling the incident a "joke." But Julien Pain, who runs the organization's Internet Freedom Desk, says he doesn't think Mr. Wang understands the consequences of the incident.

"If some bloggers start crying wolf this way," Mr. Pain says, "nobody will listen to us when we try to support those who really need help. Censorship exists, as well as repression against Internet writers."

Mr. Wang says he and Milk Pig acted jointly. Milk Pig couldn't be reached for comment.

Setting an Example

Chief of Police Bratton shares neighborhood with neighborhood current crime statistics as this site.

This is an excellent example of a realistic look at crime citywide and by neighborhood. It also helps to tone down the perception of crime that is often heightened by news reports with the focus on crime as a lead story.

If all communities, most of whom aleady have web sites, posted this type of information, we would have a better informed public and be less dependent on perceptions created by the media.

Concerned citizens should begin to make requests to city councils and mayors that ask for this type of information to be posted on the city web site.

Legal System Adds to New Orleans' Woes

http://www.latimes.com/news/nationworld/nation/la-na-indigent10mar10,1,2456193.story?coll=la-headlines-nation
From the Los Angeles Times
New Orleans Legal System Increasingly on Defensive
By Henry Weinstein
Times Staff Writer

March 10, 2006

NEW ORLEANS — The controversy over this city's beleaguered public defender system escalated on three fronts Thursday.

A Tulane University Law School professor filed a suit asserting that the state's method of funding indigent defense was unconstitutional.

Louisiana is the only state to finance its public defender system primarily through traffic tickets and other court fines — a financing method criticized as unreliable and inadequate at the best of times, and only exacerbated since Hurricane Katrina.

Professor Pamela R. Metzger said Thursday that the system created "an irreconcilable conflict of interest" for the defender's office, violating defendants' state and federal constitutional rights to effective counsel.

She said indigents' defense either "could aggressively pursue the imposition and collection of fines and fees in each individual case, thereby providing its office with additional and desperately needed funding," or the office could decline to pursue such fees, which "would provide zealous representation to the individual client but forsake funds vitally necessary" to the office's other and future clients.

Burton P. Guidry, executive director of the criminal division of the Louisiana attorney general's office, said he would defend the statute's legitimacy but acknowledged that the system needed reform. "Universally, we all know that. Everyone's duking it out over how to do it and where do we start."

On the second front, a citizens group held a news conference Thursday saying that poor defendants were "paying the price because of the system's failure." Lawyer Xochitl Bervera, co-chairwoman of Safe Streets/Strong Communities, said New Orleans public defenders had not been the vigorous advocates that poor defendants needed.

Her organization issued a report based on interviews with 100 individuals arrested before the hurricane and now imprisoned around the state. The inmates said that after being appointed to represent them, Orleans Parish public defenders "by and large did not visit the crime scene, did not interview witnesses, did not check out alibis, did not procure expert assistance, did not review evidence" and otherwise failed to adequately represent their clients, Bervera said.

The Orleans Parish public defender's office laid off three-fourths of its attorneys after the hurricane because its funding from traffic tickets and court fines had dried up. But Bervera said the problems pre-dated the hurricane.

A month ago, Judge Arthur L. Hunter Jr. halted all publicly defended prosecutions in his section of the Orleans Parish Criminal District Court, ruling that defenders' excessive caseloads and funding deficiencies precluded effective representation of indigent defendants.

Since then, another criminal court judge has ruled that defendants in his courtroom were not receiving effective representation, but two judges have denied similar defendant motions. The decisions have been appealed.

Orleans Parish's chief public defender, Tilden H. Greenbaum III, said in an interview Thursday that the Legislature had "never provided adequate funds" to public defenders in the state. Studies have shown that prosecutors have about six to seven times more resources than defense lawyers.

On the third front, Orleans Parish Criminal District Court Judge Charles Elloie appointed veteran criminal defense lawyer Richard C. Teissier to investigate the operations of the seven-member Orleans Parish indigent defense board.

Teissier said the board had a conflict of interest because one of its longtime members, Frank DeSalvo, is the principal attorney for the city's police officers.

"The lawyer for all the police officers simply cannot divorce himself from all of the instances in which the conduct of police officers is called into question" in criminal cases, Teissier stated in a motion filed Thursday.

DeSalvo said he represented people from "all walks of life" and maintained that he had done nothing in his private practice that conflicted with his role on the board. "There is nothing in our policies that says a lawyer can't call a police officer a liar," DeSalvo said.

This week, in a sign that the indigent issue was gaining currency, Gov. Kathleen Babineaux Blanco, a Democrat, pledged to dedicate $10 million more to Louisiana public defense in her budget for the coming year.

Trial Consultants

3/10/2006 01:00 AM
guest commentary
Trial consultants becoming integral part of legal system
By Richard J. Crawford
Denver
DenverPost.com

If you read about a high-profile criminal trial or a big-dollar civil trial these days, you can be pretty sure that a trial-consulting firm is on the case. For example, former Enron executives Ken Lay and Jeff Skilling are fighting serious felony charges with the help of a consulting firm.

The reason for the presence of these consultants is that a jury trial is a legal event, but its dynamics also are influenced by human communication and psychology. Reaching out to and persuading a jury involves more than making a legal case; it also involves all the art and science of communication, attitude formation, decision-making and the psychology of human persuasion. Future lawyers study the law, while academic studies of the behavioral and social sciences happen on the other side of campus. As lawyers have increasingly seen the need for those skills, many professors from the social and behavioral sciences have left the campus to become trial consultants.

As trial consultants have proliferated over the past two decades, they've also expanded the kinds of services they offer. For instance, months in advance of a major jury trial, these consultants are setting up focus groups and conducting mock trials to test potential arguments on both sides. Mock jurors are asked to deliberate while being videotaped after they've heard the case argued in a shortened version. The consultants then analyze the video and offer advice on how to better argue and structure their side of the case.

It's simply a fact that the lawyer who does not learn from this kind of research or waits to argue his case for the first time in front of the actual jury is at a serious disadvantage. Like everything else, hard work and preparation pay off, and getting good advice from the non-legal side of a case is important as part of trial preparation.

Additionally, during the months before a trial, consultants are also trying to learn which kinds of jurors need to be challenged when actual jury selection starts. It is interesting to note that the jury seated for Lay and Skilling includes some pretty sophisticated financial types, but you can be sure that their trial consultants thought about that kind of juror during mock trial testing and through other research.

Actually, jury selection was the main focus when trial consultants first started getting involved with trials, but today consultants are a part of the planning for a trial, including writing trial speeches, preparation of witnesses, design of graphics and more.

Money isn't necessarily the major factor when determining the use of trial consultants. Both sides in major civil cases often have roughly similar resources and it's not usually lack of money that causes one side or the other to skip the use of consultants. In criminal cases, both prosecutors and public defenders have budgets that allow them to hire expert witnesses and other kinds of professionals, including trial consultants. Of course, there are fiscal restraints on government lawyers, and well-heeled defendants can outspend their opponents. Admittedly, it is a little troubling to most of us to think that money can influence the outcome of something so sacred as a jury trial. Yes, rich defendants have the advantage here, but it is not so pervasive as it appears on the surface.

Finally, we should remember that the facts and evidence that are a part of any case remain of primary importance when it comes to determining the outcome of any jury trial. Great trial lawyers who surround themselves with the best advice available and who work hard in preparation win more cases than those who don't. Throughout our history and long before trial consultants existed, our adversary system meant that outstanding lawyers won more cases than their less-skilled counterparts. The emergence of the modern trial consultant has not changed those fundamentals of the adversary system.

Richard J. Crawford is a former communications professor and past national president of the American Society of Trial Consultants. He's been a consultant in more than 400 trials.

Sealing Court Records

Please note that this is petit trial information and not grand jury information which is sealed under different statutes. Also this is Washington state and the article is limited to one county. Under our system of government, each state has its own rules of procedure, statutes, and court of last resort decisions. I am posting this primarily to allow you to see the type of work that is involved with good investigative journalism.


Mike Fancher
Our battle against secrecy in county's legal system


Imagine trying to find a needle in a haystack if you don't even know where the haystack is.

That challenge faced Ken Armstrong and Justin Mayo as they undertook today's Seattle Times special report, "Your Courts, Their Secrets." It is groundbreaking work that has already resulted in important changes within the King County Superior Court system. Investigative reporter Armstrong conceived the story about two years ago because he routinely heard reporters complain they couldn't get access to crucial information in court files that had been sealed. "It was a constant source of frustration for reporters here," he said.

But no one in the court system could say how many cases involved sealed records. There was no system to determine which cases had been sealed, much less to assess whether they had been sealed appropriately.

Mayo, an expert in computer-assisted reporting, developed a method of searching court databases for indicators of sealed files. The state Administrative Office of the Courts helped run computer searches of electronic court dockets for civil lawsuits, not including other types of cases such as divorces, adoptions and probate.

"It was kind of a catchall, but the state courts were great. They were very cooperative," Mayo said.

Many hours of overnight computer runs produced 10,337 cases going back to 1990. Think of those as the haystack.

Next came looking for needles, which was tedious and meticulous work. Armstrong spent months probing computer records and shelved paper files at the King County Superior Court.

The clerk's office had sealed almost 300 cases by mistake, errors the office has since corrected. Beyond that, it was clear that judges in the county have improperly sealed court files, often not even indicating why.

Our investigation found 420 civil cases since 1990 that were sealed entirely. "I never anticipated finding hundreds of cases that had been sealed completely," Armstrong said. "To seal an entire case is really an extraordinary action."

"It was completely unexpected," added James Neff, Times investigations editor.

In addition to the 420 cases where the whole file was sealed, the reporters also discovered more than a thousand that were sealed in part.

After finding the sealed cases, Armstrong and Mayo pulled the judges' sealing orders to determine whether the cases had been sealed properly. Then, with the help of Steve Miletich, a third reporter assigned to the project, they researched hundreds of cases, starting with little more than the names of the parties involved.

No one questions that there are legitimate reasons to sometimes seal parts of a judicial record, but the standard should be high. The Washington Constitution says, "Justice in all cases shall be administered openly, and without unnecessary delay."

The Washington Supreme Court has said since the 1980s that records should be sealed rarely, and only when a compelling reason exists.

In Dreiling v. Jain, a 9-0 landmark decision in 2004, the Supreme Court reaffirmed that principle while ordering records opened in a civil case. Justice Tom Chambers wrote the opinion, saying: "The open operation of our courts is of utmost public importance. Justice must be conducted openly to foster the public's understanding and trust in our judicial system and to give judges the check of public scrutiny. Secrecy fosters mistrust."

Neff puts it this way: "Judges shouldn't be able to erase history."

The high standard required by the Constitution and Supreme Court has frequently been ignored in King County Superior Court. As a result of our investigation, court leaders already are taking steps to rectify the problem. They even attempted to facilitate opening the cases that were sealed entirely, but other judges rejected that plan. Their resistance means The Times must formally pursue the records in court, one case at a time, which we will do.

"The court could have taken it upon itself to fix a mistake," Armstrong said. "Instead, they put the burden on us. Ironically, they cited the same rules they ignored in sealing all of these files in the first place."

We'll be in court tomorrow to start a long-term effort to shed light on these cases, fighting legal secrecy and protecting your right to know. We expect our efforts will lead to important stories throughout the year involving schools, hospitals, government agencies, medical malpractice and other areas of legitimate public interest.

"If things are going wrong in any of those areas, the public would like to know," Armstrong said. "The only way we can know is by opening them and reading the files.

"It's not a private dispute when it's being handled in a public courtroom," he added. "The court leadership wants more openness. Whether that is shared universally among the judges, we'll see."

Inside The Times appears in the Sunday Seattle Times.
Copyright © 2006 The Seattle Times Company

Self-Defense Outside the Home

AJC.com > Legislature > Story
Bill gives Georgians right to use deadly force in public areas

By Sonji Jacobs

The Atlanta Journal-Constitution

Published on: 03/02/06 11:42 AM

Georgians would be able to use deadly force in public areas such as parking lots under a bill approved by the state Senate on Thursday.

Senate Bill 396 passed by a vote of 40-13, and now heads to the House for approval.

“We already have a very strong law in the state of Georgia, but I felt a couple of pieces were missing from the puzzle,” said state Sen. Greg Goggans (R-Douglas), the bill’s sponsor. “This makes the law stronger for all the law-abiding citizens and victims in this state. This is about putting common sense into code.”

Goggans explained the measure would change Georgia’s current law in four key areas:

1.

It extends the ability of Georgians to use deadly force beyond their homes, vehicles, personal property and businesses into the public arena.
2.

The bill puts into the Georgia code that law-abiding citizens have no duty to retreat, a matter upon which the law is currently silent
3.

The bill grants immunity from criminal prosecution to those who use deadly force, unless they used an unlawful weapon in protecting themselves
4.

The bill also grants people who use deadly force immunity from civil actions

Several Democrats, however, expressed concerns that the bill would open the door to more violence because people would use the excuse of self-defense for their actions.

“This is a recipe for murder,” state Sen. Regina Thomas (D-Savannah) said. “We are trying so hard in this state – especially in Chatham County – to reduce crimes of any nature.” She also expressed concern that the measure could increase the number of hate crimes in Georgia. But Goggans argued there was no evidence that the bill would encourage an increase in such crimes.

State Sen. Steen Miles (D-Decatur) said that ordinary citizens may not be well-equipped to make quick life and death decisions when facing a threatening situations. She argued that law enforcement officers – who receive months of training – sometimes make the wrong decisions regarding the use of deadly force.

Several groups such as Georgians for Gun Safety, also have argued that the measure could lead to more violence in the past few months.

The National Rifle Association, which pushed the bill through the Florida Legislature last year, is lobbying hard for the bill’s passage in Georgia and other states.

Marion Hammer, who served from 1995 to 1998 as the NRA’s first female president, told a Senate committee in late January that the Georgia bill “restores self-defense and puts government back on the side of honest citizens.”

Upon release felons have huge debts

February 23, 2006
Debt to Society Is Least of Costs for Ex-Convicts
By ADAM LIPTAK
It is increasingly expensive to be a criminal.

Beverly Dubois, a 49-year-old former park ranger in Washington State, spent nine months in jail for growing and selling marijuana. She still owes the state almost $1,900 for court costs and various fees. Until she pays up, the state has taken away her right to vote.

Wilbert Rideau, 64, a convicted killer, spent 44 years in Louisiana prisons. Not long after he was released last year, he filed for bankruptcy in an effort to avoid the state's attempts to collect $127,000 in court costs.

Almost every encounter with the criminal justice system these days can give rise to a fee. There are application fees and co-payments for public defenders. Sentences include court costs, restitution and contributions to various funds. In Washington State, people convicted of certain crimes are also charged $100 so their DNA can be put in a database.

Private probation companies charge $30 to $40 a month for supervision. Halfway houses charge for staying in them. People sentenced to community service are required to buy $15 insurance policies for every week they work. Criminals on probation and parole wear global positioning devices that monitor their whereabouts — for a charge of as much as $16 a day.

The sums raised by these ever-mounting fees are intended to help offset some of the enormous costs of operating the criminal justice system. But even relatively small fees — $40 per session, say, for a court-ordered anger management class or $15 for a drug test — can have devastating consequences for people who emerge from prison with no money, credit or prospects, and who live in fear of being sent back for failing to pay.

"The difference between 30 years ago and today," said George H. Kendall, a lawyer with Holland & Knight in New York who represents Mr. Rideau, "is that people who everyone agrees are poor are leaving the courthouse significantly poorer."

Prosecutors and political leaders often say it is only fair that criminals rather than taxpayers pay for what it costs to protect the public.

But Judge James R. Thurman of the Magistrate Court in Lee County, Ga., said his state's many fees, known there as add-ons, were a backdoor way to make poor people pay for the free lawyers guaranteed to them by the United States Supreme Court's decision in Gideon v. Wainwright in 1963.

"You're asking the people who can't afford to hire an attorney to pay anyway by making them pay through add-on fees," Judge Thurman said.

Indeed, according to the American Bar Association, at least 15 states, including New Jersey and Connecticut, charge application fees to people seeking court-appointed lawyers. Washington has one of the longest lists of fees assessed to criminals, and it is diligent in trying to collect them. Ms. Dubois, disabled after a car accident, makes payments of $10 a month toward what was once a $1,610 debt — $1,000 for a county "drug enforcement fund," a $500 "victim assessment fee" and $110 in court costs.

"I still don't know who the victim was," she said.

Her efforts notwithstanding, her debt is growing because of the 12 percent interest assessed annually by the State of Washington. As of September, it stood at $1,895.69.

"I will never have it paid off in my lifetime," Ms. Dubois said.

Washington also uses an unusual tool: it denies people who have not paid such debts the right to vote.

"You have to complete all the terms of your sentence" to regain the right to vote, explained Jeffrey T. Even, a lawyer for the state. "If the monthly payment is low enough and if the debt is high enough, you can actually be going backwards."

Aaron H. Caplan, a lawyer with the American Civil Liberties Union in Washington State, which has filed a lawsuit on behalf of Ms. Dubois challenging her disenfranchisement, said that tens of thousands of people were affected and that their number would grow. "Over the last 20 to 25 years, the Legislature has been making it more and more expensive to purchase back the right to vote," Mr. Caplan said.

National figures concerning fees assessed to criminals are not available, but Washington is something of a case study. The state sends out some 79,000 bills every month, and it collected about $25 million last year. But these collection efforts are barely making a dent in the $1.2 billion owed by former offenders, much of it for the cost of prison room and board, which can reach $50 a day. The budget of the State Department of Corrections for the two-year period ending in 2007 is more than $1.4 billion.

Fees for room and board are levied in many states, and they can quickly mount to levels that are essentially uncollectible, with states not bothering, except in special cases. Even other types of fees can be unwieldy.

Mr. Rideau, for instance, has been billed $127,000 for the cost of his fourth and final trial last year.

Louisiana wants him to pay for the costs of housing, feeding and transporting his jury from across the state. The prosecution has submitted bills from more than two dozen establishments, including the Seafood Palace ($435.68), Ruby Tuesday ($312.66) and Best Suites ($16,874.33).

His trial was expensive partly because Mr. Rideau was so famous in Lake Charles, La., where he killed a bank teller in 1961. He was convicted of murder three times, in 1961, 1964 and 1970, but appeals courts threw out the verdicts, citing misconduct by the government.

A fourth jury last year rejected the murder charge and found Mr. Rideau guilty of manslaughter, which had a maximum sentence of 21 years, meaning his sentence was complete. Mr. Rideau, who was also a prison journalist during his four decades behind bars, was freed that same day.

But Louisiana was not done with Mr. Rideau. David A. Ritchie, the judge in the case, ruled that Mr. Rideau was responsible for all of the charges billed by the prosecution.

"Mr. Rideau is the one that committed this crime that led to this trial, then led to all these costs," Judge Ritchie said at a hearing in August. "That's why people are charged court costs, because it's their actions."

Mr. Rideau has filed for bankruptcy, even though it is not clear that bankruptcy can erase debts of this kind. He has also appealed the decision, saying he is puzzled by the state's efforts.

"Society's interest is in an ex-con becoming solvent and in becoming a contributing member of society," Mr. Rideau said. "They created this court-costs sham to sabotage my efforts to create a life."

John F. Derosier, the district attorney in the case, defended the charges in court papers opposing Mr. Rideau's appeal last month. "He owes a debt to society which must be paid," Mr. Derosier wrote.

The assessment of court costs is common in civil cases. Many state laws allow or require the costs to be imposed in criminal cases, too, though rarely for an amount even approaching that sought from Mr. Rideau. Vanita Gupta, a lawyer with the NAACP Legal Defense and Educational Fund, which also represents Mr. Rideau, said his case might have unintended consequences.

"The prospect of having to pay for court costs is going to dissuade some defendants from going to trial," Ms. Gupta said. Even an innocent defendant, she said, may prefer a guilty plea to a trial if the downside includes not only a longer sentence but also a crushing debt.

Georgia is also aggressive in collecting fees, and it has enlisted private probation companies to help. The companies charge a monthly fee of $30 or $40 for their services. That fee can rival the fine.

"You're basically charging an interest fee that would make a finance company blush," said Stephen B. Bright, the director of the Southern Center for Human Rights.

In 2003, for instance, Sabrina Byrd, a 27-year-old single mother, was ordered to pay $852 for failing to leash and vaccinate her dog in College Park, Ga. Too poor to pay, she was placed on probation while she made 10 monthly installments, along with a monthly fee to a probation company of $39 — about half of the fine. When she fell behind and failed to contact the company, a judge revoked her probation and sentenced her to 25 days in jail.

Though the Supreme Court has said that defendants may not be jailed for failing to pay a fine when they have no money, they can be jailed for failing to report to their probation officer. Many poor people do not appreciate that distinction and fail to report when they have no money.

Judge Thurman, who was not involved in Ms. Byrd's case, said he took pains to tell people to report no matter what. Otherwise, "I have no alternative but to issue a warrant for your arrest," he tells defendants.

But some probation companies, according to court records, effectively use the threat of arrest as a collection tool.

John Cole Vodicka, the director of Georgia's Prison and Jail Project, questioned the current system.

"A $500 fine going into probation translates into $1,500 coming out of probation," he said. "No one's really benefiting, except maybe private companies."

New technologies can also add fees. Isecuretrac, an Omaha company that sells global positioning monitors to local governments to track sex offenders and others, promotes a system that encourages offenders to pay, often on a sliding scale based on financial resources. Thomas E. Wharton Jr., the company's chief executive, said about 70 percent of county agencies that use electronic monitoring charge the offenders for them.

"I don't think the intent really is to gouge offenders," Mr. Wharton said, "because they have a difficult enough time to get back into their communities and to support themselves."



Copyright 2006The New York Times Company

Japanese Death Row

http://www.latimes.com/news/nationworld/world/la-fg-deathrow2mar02,0,7721043,full.story?coll=la-headlines-world

From the Los Angeles Times
COLUMN ONE
Awaiting Death's Footsteps
On Japan's death row, prisoners never know when the hangman will come. Harsh conditions aim to calm, but critics call them inhuman.
By Bruce Wallace
Times Staff Writer

March 2, 2006

NAGOYA, Japan — Like all prisoners on Japan's death row, Masao Akahori knew that his execution would come without warning. The fear made him stiffen at the sound of the guards' approaching footsteps, wondering if the clack of boots was a countdown to death or would pass by, fading into the silence of another reprieve.

One morning in the early 1970s, the march stopped outside Akahori's cell and a key turned the lock.

"We have come to fetch you," the guards told him.

Akahori remembers his legs collapsing under him, that five guards had to drag him from his cell. He remembers the nervous whispering when the guards suddenly realized they had come to hang the wrong man.

It was Yamamoto they wanted. In the next cell.

"They put me back, no apology, and went for Yamamoto," Akahori recalls. He is 75 now, with watery eyes, a ghost of the 24-year-old who was living under bridges in 1954 when he says police beat a false confession out of him that he had raped and murdered a schoolgirl. "They closed the small window in my cell so I couldn't see what was going on with Yamamoto.

"But I could hear them," he says, in a voice that still trembles with the telling.

Akahori says he was so traumatized by his near-death experience that, for several years, he could not speak. But he did eventually win a retrial, and in 1989, after 31 years on death row, he was declared not guilty and released.

Yet his story remains precious. Not simply because he survived to tell it, but because it offers a rare peek into the mists of Japan's death row, where prisoners live in conditions designed to induce submission and where executions, all by hanging, are carried out in secret.

The Japanese government says 75 inmates await execution, living under rules set out in a 1908 prison law and tightened by directives in 1963:

They are prohibited from talking to other prisoners. Their contact with the outside world is limited to infrequent, supervised visits from family or their lawyers. They are not allowed hobbies or television, and may own only three books, though more can be borrowed with the warden's permission as long as the content is not deemed to preach "subversion of authority." Exercise is limited to two short sessions a week outside their cells, four solid walls and one small window. Some rely on sleeping pills, bought with money provided by their families, to survive the isolation.

Many prisoners live in this purgatory for more than two decades while appeals against their sentences churn through Japan's notoriously sluggish legal system. But once appeals are exhausted, executions will come without notice, on the whim and with the stamp of the justice minister.

There are no last meals. Hangings are carried out without witnesses, and the inmate's family members aren't informed until the prisoner is dead and they are told to collect the body.

Japan's bar associations and human rights groups have long protested — to a public that shows little inclination to listen — that conditions on death row are an "affront to human decency." But corrections officials argue that the system is designed to ensure prisoners on death row remain calm, do not become suicidal and do not try to escape.

"We want to maintain the mental stability of those waiting for death," says Kenichi Matsumura, a specialist at the Adult Correction Section of the Justice Ministry. "Emotionally, everybody wants them to face their last moments in peace."

Whether that works is an open question. During his years on death row, Akahori often heard those footsteps stop at other cells. Some prisoners went compliantly, he says. Others fought vigorously.

"Of course, some people don't want to die," Akahori says. "They shout. And the guards would try to cover their mouths and tie their hands with towels to take them away."

The gag extends to a clampdown on public information from death row. The executed prisoner's name is never released, becoming known only if the family chooses. There are no Stanley Tookie Williams-style media frenzies in Japan, no debates about the sincerity of a prisoner's remorse or the merits of redemption. You don't see candlelight vigils outside Japanese prisons on the night of scheduled executions, because only the authorities know one is coming.

Even Japanese lawmakers have difficulty seeing conditions for themselves. In 2003, nine lawmakers fought for and won the right to visit an execution chamber, though not witness an execution. It was the first time legislators had been allowed inside since 1973, according to Amnesty International, which says Japan's death row violates the country's signed pledges on human rights protection. (Corrections officials refused the Los Angeles Times permission to visit any of the seven penitentiaries that hold death row units.)

What little the world knows about conditions inside comes from the few prisoners, such as Akahori, who have survived to tell their stories — four prisoners were released from death row in the 1980s when their convictions were overturned — or from the rare writings from prison that get past censors.

"We have to sleep under a bright light," Masashi Daidoji complained in his prison diary, "Being Convicted for Execution." "I asked for an eye mask but it was turned down as it covers our face. No wonder not a few people take sleeping pills."

Daidoji is on death row for his role in the bombing of a Mitsubishi Heavy Industries building by left-wing radicals in 1974 that killed eight people and wounded 380 others. His diary, passed outside in letters to his family and published by a small Tokyo publishing house owned by his cousin Masakuni Ota, is a compendium of complaints about "smelly rice" eaten next to the toilet, and cells that were freezing cold in winter and suffocatingly hot in summer.

The book was published in 1997. Daidoji is still on death row.

Indeed, the number of executions in Japan is low, and the pace slow. For one thing, Japan's murder rate is among the lowest in the world. And despite overwhelming popular support for the death penalty in Japan, most justice ministers in recent years have been reluctant to sign death warrants; they often delay.

Only one prisoner was hanged last year, and two the year before. The majority of those condemned to die are, in fact, being condemned to years of solitary confinement — poised on the brink for a death that could call at any moment.

"It's hard to wait," says Akahori, who lives in a small apartment in Nagoya on the proceeds from a modest settlement he received for his wrongful conviction. He rarely goes out, but lends his voice to campaigns on behalf of two death row prisoners still claiming their innocence. One has been on death row since 1966, the other since 1961.

"I sometimes thought: The sooner, the better. In 1974, I talked to my supporters and said, 'Maybe it is better I go,' " he says. "I wanted to die, but I'm not strong-willed enough to kill myself. And I had no weapon."

Prison officials defend their treatment of the condemned as necessary security steps. Matsumura says lights are left on in the cells 24 hours a day to "allow the guards to watch so they won't run away." Sleep masks are not allowed because they could be used to fashion a cord that prisoners might use to kill themselves.

Daidoji's diary records his being alarmed at the "swollen, expressionless faces" all around him — ill from the mental strain of isolation and lack of exercise — and he vows to exercise to maintain his health. But the guards prevent him from even doing push-ups or stretching exercises in his cell.

"Moving your arms around would be OK, but push-ups or something that makes noise is not allowed — it would disturb others," Matsumura says. Prisoners are calmer if they are prevented "from getting unnecessary information or stimulation from the outside world," he says.

So there is no TV. Radio is allowed, but the prisoners have no say over the station. Some prisons allow videos, but that is at the discretion of prison wardens.

Any prisoner unhappy with his treatment can take it up with a Justice Ministry representative who must, by law, visit every two years.

Critics say the sedated atmosphere on death row leads to a numbed despair, even among those still trying to prove their innocence. Last fall, Tomoaki Takanezawa, 38, abandoned his appeals against his death sentence despite insisting he is innocent of murdering two men in 2003, contending that the system is so weighted against the condemned prisoner that "the results are obvious."

Takanezawa's lawyer said his client had become emotionally unstable under the strain of living on death row.

Yet there is very little public debate in Japan about the death penalty, let alone death row conditions. Polls show about four in five Japanese support capital punishment, a consensus reinforced by a lingering national trauma from the 1995 sarin nerve gas attacks carried out by the Aum Supreme Truth cult, which killed 12 Tokyo subway commuters and sickened thousands.

Thirteen Aum members are on death row, although only one has exhausted all his appeals. Lawyers for the cult's leader, Shoko Asahara, 50, have refused to appeal his death sentence, claiming that their client does not speak other than to groan, and is therefore incapable of preparing a defense.

But last week, a court decided that Asahara was feigning dementia and is capable of speech. The Japanese media have cited reports that, in November, Asahara yelled, "Go home, idiots!" at family members who came to visit him.

The latest ruling brings Asahara closer to execution, reopening the emotional wounds from that terrorist attack. It also comes at a time when Japan has been shocked by an unusual spate of child killings, leaving many here wondering if their country is sliding toward Western levels of violence.

All of this undermines the tiny political constituency for abolishing the death penalty or improving prison conditions.

In the fall, Justice Minister Seiken Sugiura announced just hours after taking office that he would not sign any more execution warrants because of his opposition to capital punishment. By the next day, a rebellious Justice Ministry bureaucracy had forced him to "correct" himself. He promised to carry out his duties with "careful consideration."

"The bureaucrats don't want people to talk about it; they want to continue going about it in secret," said Ota, the Tokyo book publisher and cousin of Daidoji. "And the general public tends to be indifferent. This is a society without much debate, very conformist, very cold toward people who are different.

"Instead of thinking about this issue, they prefer to push it aside, not to see it. If we don't see it, we don't have to think about it."

Akahori said the hardest part of his incarceration, next to the fear of dying, was the ban on talking to other prisoners.

"We were not allowed to communicate, but we would knock on the walls at the back of the cell to make sure the other guy was OK," Akahori says. "Sometimes they would bring entertainers into the prison, but those of us on death row were not allowed to attend the show. We had to listen to a tape of it later."

Matsumura, the Justice Ministry official, explains the rationale: "They have to be separated. I don't think any prison warden would allow them to gather. The basic idea is we don't want them to communicate to plan to escape together.

"If we give them more freedom, then there is a risk of them escaping," he says. "If you limit freedom, we can keep control."

Naoko Nishiwaki of The Times' Tokyo Bureau contributed to this report.

Copyright 2006 Los Angeles Times