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Exoneration Inflation

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This issue usually comes up in capital cases, and I have shamelessly pirated the title of this post from Ward Campbell's article demolishing the so-called Innocence List.

It happens in noncapital cases, too, though.  A conviction is set aside, and no new conviction is obtained against the defendant.  There are many reasons consistent with guilt why this can happen.  Essential witnesses may be dead.  Evidence may be suppressed for reasons other than its reliability.  In noncapital cases, the defendant may have already served most or all of the prison sentence that could be obtained, so no additional criminal sanction is available or needed, so the prosecutor may just drop it.

Despite all this, there is frequently a PR campaign declaring the defendant "exonerated" with the implication that he has been proved innocent and scathing condemnation of the criminal justice system.  Sometime, to be sure, actually innocent people are convicted, and sometimes condemnation of actual misconduct is warranted.  But sometimes the "exonerated" defendant actually committed the crime.  Sometimes the defendant actually committed part of the crime.  Michael Armstrong, former Queens DA, has an article in the WSJ, Persistent Myths in the Central Park Jogger Case.

The panel's report to Police Commissioner Kelly in 2003 suggested that it was "probable" that the defendants participated only in a preliminary "hit and run" attack on the jogger, similar to the other assaults for which they had been convicted. If that theory is correct, it seems clear that they served excessive prison terms. Others, pleading guilty to such offenses occurring on the same night, served two to three years, not six or 13.

Perhaps it is fair, though not required as a matter of law, to compensate the defendants for their extra prison time. But some thought should also be given to the blameless police officers and assistant district attorneys who, as a result of a well-orchestrated publicity campaign, have been subjected to public vilification, anonymous death threats and petitions calling for them to be fired.

The Bergdahl Non-Pardon

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Early last month, on Sgt. Bowe Bergdahl's return to American forces in Afghanistan, I wrote the following:  

In recent days, the Administration has justified releasing five top terrorist commanders to return to the battlefield (after a fig-leaf stopover in Qatar) on the grounds that Bergdahl was still an American soldier, and America does not leave its people behind.  The President's supporters tell us that, if Bergdahl deserted  -- or even became a collaborator  --  we have the military justice system that will, at the right time, fully investigate the matter, put the facts on the table, and, if warranted, impose punishment.

Ladies and gentlemen, it's not gonna happen.  There isn't going to be any honest investigation, and there isn't going to be any punishment.  The President is going to issue a preemptive pardon to make sure the process never gets off the ground.

It may be time for me to confess error.  I overestimated the President's willingness to act directly and take responsibility for letting Bergdahl off the hook.  It now appears more likely that, while I was correct in saying there isn't going to be any honest investigation, there may not be any pardon as such, either.  Why should there be? Why should there be, that is, when the President can just believe  --  not unintelligently  -- that, if dragged out for long enough, the whole thing will disappear into the fog of even more prominent scandals?

Bonds En Banc

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Last September, a three-judge panel of the Ninth Circuit upheld the obstruction-of-justice conviction of Barry Bonds. From the court's summary:

The panel affirmed Barry Bonds's conviction of one count of obstruction of justice, in violation of 18 U.S.C. § 1503, arising from Bonds's testimony before a grand jury investigating whether the proceeds of the sales of performance enhancing drugs were being laundered.

The panel held that § 1503 applies to factually true statements that are evasive or misleading.

The panel held that there was sufficient evidence to convict Bonds because his statement describing his life as a celebrity child - in response to a question asking whether his trainer ever gave him any self-injectable substances - was evasive, misleading, and capable of influencing the grand jury to minimize the trainer's role in the distribution of performance enhancing drugs.
Yesterday the Ninth Circuit granted rehearing en banc.  Because of its size, the Ninth does not generally sit truly "en banc," with all its judges participating, like the other circuits.  The Ninth's pseudo-en-banc procedure is to make an 11-judge panel consisting of the chief judge and 10 others chosen at random.

What To Do About Corrupt Prosecutors?

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Gun them down, what else?

P.S.  They don't have to be corrupt, either, not in the slightest.  You just have to dislike them because they convicted you for being a thief.

The NYT reports  --  amazingly without detectable snark  --  that Texas will seek the death penalty for Eric L. Williams, a former "neutral" judicial officer who got caught and convicted for stealing computer equipment from a county building.  Not caring for this outcome, Williams shot the two prosecutors who brought the case.  For good measure, he shot the wife of the senior prosecutor.  Can't have those witnesses!

I am strongly tempted to lay into the poisonous, sneering websites and commentators who relentlessly trash prosecutors as thugs and thus build up the "atmosphere of hate" that is said to "lead to" atrocious episodes like this.  But I'm going to refrain.  These murders were not the product of an "atmosphere."  They were a product of a malevolent criminal bent on cold-blooded revenge. Texas is well-advised to seek the only punishment that fits the crime.
USAToday has an article reporting that the defense team for the Boston Marathon killer wants a change of venue:

Attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev are expected to ask a judge to move their client's November trial.

Judge George A. O'Toole Jr. last week denied a motion that would have given attorneys Miriam Conrad and Judith Clarke until August to make their case for changing venues. At issue is whether Tsarnaev can receive a fair trial in the city where two bombs went off near the Marathon finish line on April 15, 2013, leaving three dead and more than 260 wounded.

At SL&P, my old pal Doug Berman wonders whether the prosecution would be well advised to go along with a change of venue.  As sometimes happens, I agree with him.

First, I have my doubts about the federal district bench in Boston, one of the most flagrantly liberal in the country.  Second, Boston itself, and Massachusetts in general, are way off to the left on the national political spectrum, and the state has no death penalty.

I would suggest moving the trial to the Eastern District of Virginia.  It's not a hotbed of the Left, but it's not off to the Right, either.  Virginia has a Democratic governor, two Democratic senators, and it just booted out Republican House Majority Leader Eric Cantor.  In addition, it voted for President Obama twice, with margins both times that mirrored national voting.  And a jury in the EDVA considered, but ultimately rejected, the death penalty for Zacarias Moussaoui.

The big advantage of bringing the case to EDVA, from my point of view, is easy to summarize.  It would allow me to offer my services to my country, gratis.  I truly relish writing Eric Holder volunteering to resume my former post as Senior Litigation Counsel for the USAO in order to do battle with well-respected arch rival, Judy Clarke.  And to help give Mr. Tsarnaev the punishment he has earned.

The Coming Bergdahl Pardon

Most reliable reports suggest that five years ago, as the battle against the Taliban was fully underway, Sgt. Bowe  Bergdahl voluntarily left his post after becoming disillusioned with what he viewed as the enormous damage the United States had done to Afghanistan.  In other words, he deserted.  He may have defected; that is unknown for the moment.

In recent days, the Administration has justified releasing five top terrorist commanders to return to the battlefield (after a fig-leaf stopover in Qatar) on the grounds that Bergdahl was still an American soldier, and America does not leave its people behind.  The President's supporters tell us that, if Bergdahl deserted  -- or even became a collaborator  --  we have the military justice system that will, at the right time, fully investigate the matter, put the facts on the table, and, if warranted, impose punishment.

Ladies and gentlemen, it's not gonna happen.  There isn't going to be any honest investigation, and there isn't going to be any punishment.  The President is going to issue a preemptive pardon to make sure the process never gets off the ground.

This is not just because the entire episode has turned into a P.R. disaster for the White  House, one that started when Bergdahl's  father showed up arm-in-arm with Obama wearing a Taliban-style beard and praising Allah in Arabic, although that's a good deal of it.  It's because, among other things, Obama doesn't see that much wrong with Sgt. Bergdahl's view of the matter.

AP reports:

LAS VEGAS (AP) -- O.J. Simpson's lawyers submitted a supersized appeal to the Nevada Supreme Court, seeking the former football star's release from prison and a new trial in his 2007 Las Vegas armed-robbery case.

The lawyers met a midnight Wednesday deadline to submit a request for the court to review Simpson's claim that 2008 trial in Las Vegas was tainted by his fame and notoriety following his 1995 acquittal in Los Angeles in the deaths of his ex-wife and her friend.
*                                      *                                  *
The appeal stems from arguments rejected last year by Clark County District Judge Linda Marie Bell that Simpson's trial attorney botched Simpson's trial and first appeal to the state Supreme Court, the only appeals court in Nevada.
The case is Simpson v. State, No. 64529.  It is an appeal from the District Court's denial of postconviction relief.  It goes to the Nevada Supreme Court because Nevada has no intermediate appellate court.  The direct appeal was No. 53080, affirmed in 2010.

Obama's Tuskegee

Once upon a time in America, a select group of people were invited to depend on the federal government for medical treatment for vaguely described but serious symptoms. These people were not in the best of health to start with, and they trusted the good faith and truthfulness of their solicitors.  History told them the federal government was on their side.  Several hundred signed up. And, indeed, they did receive some kinds of medical care  --  in many instances more than they otherwise would have  --  plus hot meals.

When this started in 1932, the government withheld a key fact:  The new "patients" had syphilis, and the program they entered was designed, not to cure it, but simply to track its progression, which would be examined in autopsies. These goals did not change after penicillin was shown to be an effective cure in 1947. The "patients" (actually subjects) were never told about penicillin.  Deceit was not a barrier in administering this program; indeed it was essential to its administration.

When the Tuskegee experiment on black sharecroppers ended in 1972, 28 of the men had died directly of syphilis, 100 were dead of related complications, 40 of their wives had been infected, and 19 of their children had been born with congenital syphilis.  To my knowledge, no one ever went to jail for it  --  a national disgrace. 

Today, from the head of the federal government, the Commander-in-Chief, the man who wears compassion on his sleeve, do we hear an echo? Well, actually, we don't hear much of anything but tardy, forced, standard-issue indignation, although occasionally we get Veterans Administration updates from the ever-chipper Jay Carney.

Wrong Poster Boy, No Kidding

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Alan Dershowitz is on the wrong side of the death penalty, but he knows something about litigation strategy.  I like to think that I do too, having been a decently successful lawyer in the USAO for a few years.

As Kent points out, Prof. Dershowitz is correct in thinking that the Boston Marathon bomber prosecution might be the worst case to try to get the death penalty ruled unconstitutional since Timmy McVeigh.

About a year ago, roughly three weeks after the bombing, Prof. Dershowitz and I, appearing on the Piers Morgan show, debated whether the death penalty was an apt punishment for the killer.  A tape (unfortunately in annoying one-minute segments) is here.  As I pointed out, echoing the points Kent makes, the surviving bomber, Dzhokhar Tsarnaev, is actually a case study on why we should retain capital punishment.  I noted that Dzhokhar committed: terrorist murder, multiple murder, murder of a police officer, and child murder, blowing to bits an eight year-old boy. (His mother and younger sister had so much shrapnel in them that they were unable to attend the boy's funeral a week later).

Of course, his lawyers know something about litigation strategy too.  That they're throwing this Hail Mary so soon in the case tends to confirm something I've suspected for a long time:  They can't find a shrink dishonest enough to testify that Dzhokhar is nuts, so they're headed into this trial holding a handful of nothing.

The Forgotten Scapegoat Defendant

It's a  staple of the defense bar that an accused should not wind up in prison in the service of a political agenda.  Although I often disagree with the defense, in this they are 100% correct.  Putting people in the slammer because of the political needs of those in power is odious to American justice.  It's the stuff of banana republics  -- banana republics and tyrannies.

In all the recent talk of mass clemency for hundreds or thousands of drug pushers, I have yet to hear anyone in DOJ or elsewhere in the Administration mention giving consideration of clemency to the one non-violent federal defendant who, more obviously than any other I can remember, wound up behind bars (now in a halfway house) in the service of political expediency.  That would be Nakoula Nakoula.

And who, you ask, is Nakoula Nakoula?

He's the fellow who produced the famous Internet video, "Innocence of Muslims," that the Administration ubiquitously, immediately and aggressively  --  but falsely  -- blamed for the Benghazi attack, saying that it whipped up a frenzy among random Islamic passers-by.  

This was a point-blank lie.  It was  a pre-planned terrorist attack, something the CIA and the State Department knew almost immediately, and that is now no longer questioned by anyone.

Jail for Contempt of Congress?

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Congress has held former IRS official Lois Lerner in contempt for refusing to testify about the IRS scandal involving greater and more taxing (as it were) scrutiny of conservative advocacy groups than of liberal ones.  It has referred the contempt citation to the Justice Department for prosecution.

This raises a question:  What is the realistic likelihood of a prosecution's being undertaken? Let me put that another way:  What is the realistic likelihood of Obama's naming Kent Scheidegger to the Ninth Circuit?

But here's the really interesting issue:  Can Congress on its own imprison Ms. Lerner?

Darned if I know, but Roll Call has a notable article about it.
Did Dzhokhar Tsarnaev know what he was doing, and intend to do it, when he planted the bomb that killed three people and grievously injured dozens more?

Well, read his own words

When asked to comment, one of his numerous defense lawyers refused, but was willing to say, "If the government's indictment is true, this [case] is about a family...a story of this family and the relationships between the people in [it]."

Well, not really.  It's a story about a Jihadist whose response to the generous welcome this country gave him was to hate it and kill its people with a home made, shrapnel-packed bomb.

Justice Not Mush

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Much of what we hear about the Boston Marathon murders is  --  excuse me  -- unadulterated mush.  Have we had enough yet of teddy bears, plastic flowers and yellow ribbons? Have we had enough of the vapid talk that seems inevitably to follow them?  Take this, for example, from yesterday's Washington Post article commemorating the bombing:

Boston and its surroundings braced for an emotional week that begins Tuesday...It will be a chance to mourn the dead and remember the bloodshed, but marvel at the way events have brought this community together.

"We're going to turn it into a moment of unity and perseverance and [strength] as a city," said Alison Beliveau, 25, of South Boston, who finished a run Monday morning outside Marathon Sports, where the first bomb went off one year ago. "We made it through. We're going to make it."

Did anyone ever doubt that they were "going to make it?"  I know this will be attacked as unfeeling, but it's time to say it out loud:  Is there anything here but trendy, empty sentiment? All these commemorative talks, especially by politicians, are just so much hot air.  That by itself wouldn't be too awful  --  hot air is what politicians do  --  but I think there's something more subversive going on:  It distracts us from the central reality, and from what we need to do.

Why We Have the Death Penalty

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Today is the one year anniversary of the Boston Marathon bombing.  Dozens of people received life-long, disfiguring injuries.  Three died: Krystle Campbell, 29; Chinese national Lu Lingzi, 23; and  Martin Richard, 8.  The latter was  to have started his first season in Little League in a few weeks.

The bombing was undertaken by two Jihadist brothers.  The older one was  killed after a shootout with police four days later.  The younger, Dzhokhar Tsarnaev, was captured and is awaiting trial in November.

No serious person is claiming there is doubt of his guilt, or that he's mentally or emotionally disabled, or that he acted other than intentionally, knowing full well what he was doing.  The defense, if you want to call it that, is that he was following his brother.

The New York Daily News has this retrospective.  The pictures are graphic, as they should be. The picture of Dzhokhar's sworn enemy, the scourge of the earth, the Great Satan, follows the break.

Some Crime Victims Count...

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...and some don't.

President Obama met at the White House with the families of the victims of the Newtown, Conn. school massacre.  Nothing wrong with that; it was a shocking national tragedy.  I have some misgivings that the meeting was enlisted in a political cause, but that's how it goes with this Administration.

The President has refused to meet, however, with the families of the victims of  another mass shooting, even though (unlike the case with Newtown), he was  the Commander-in-Chief of the people ambushed, and even though they were killed, not by a lunatic, but by a "soldier" of the same Jihad that has attacked America before.

What difference does it make, really, whether the federal government has some paltry financial interest in pretending, absurdly, that the Ft. Hood massacre five years ago was just "workplace violence" instead of a terrorist attack?  For my money, what compels the President to meet with Major Hasan's victims does not depend on how they are categorized.  What compels it is basic decency. 

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