No Comment

Around the Seattle area the arrest of Seattle native and UW study abroad student Amanda Knox in connection with the grisly slaying of her British roommate Meredith Kercher in Perugia, Italy on November 2nd is getting major international press coverage. Recently it was reported that one of the lawyers for Ms. Knox, Luciano Ghirga, said that because his client had given many different versions of what had happened, "it is difficult to evaluate which one is true."

I don't know the circumstances under which Mr. Ghirga made this statement or whether it was even quoted accurately. One of the reasons jurors are told not to read accounts of the trial in the newspaper or listen to coverage of the trial on radio or television, is because statements about the case can be taken out of context. That having been said, other than an outright confession of guilt, it is hard to image a more damning statement about the accused's account of the crime. Usually its the police who infer guilt because the accused has given conflicting accounts; not the accused's own lawyer.

Although you would think otherwise, prejudical pretrial statements such as this are not that uncommon. Under the glare of the media, while being peppered with questions, many a defense attorney has become dumbstuck with a microphone or a tape recorder stuck in their face. While it's nice to see your name in print, hear your voice on the radio, or see yourself on television, damaging remarks by a defense attorney in an interview gone wrong can do untold damage to the accused in the court of public opinion.

While there are attorneys who have mastered the art of manipulating the press to their client's advantage, they are rare. One should never forget that speaking to the press is like swinging a two edged sword - it can cut both ways. Even the best attorneys will sometimes have their word come back to haunt them.

It is far safer and wiser when approached for a case comment by the media for the defense attorney to forego the opportunity to have his or her name in the morning paper, or their voice or image on radio or television, and simply say, "We'll present our case in the courtroom, not in the press."

A Policeman's Job Is Only Easy In A Police State

I read in today's news that a top intelligence official says its time that people in the United States changed their definition of privacy.

To those who would agree I say bullshit. Our Constitution guarantees to each the right to areas of our life that are private and which are no business of the government.

Our freedoms are a cherished gift from our ancestors. Each of us bears the responsibility to resist the temptation to give up our personal and societal freedoms in the name of expediency and state security. When government officials start talking about the need to give up privacy in the name of security, it is wise to bear in mind the sagely advice of Benjamin Franklin. "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."

There are no freedoms and there is no right of privacy in a Facist state. Law enforcement in a free society is always faced with difficult challenges. Let's keep it that way.

UGA 45 Auburn 20

'Nuff said!

Mark 8:36

In announcing his intention to vote no on the nomination of Judge Michael Mukasey for Attorney General, Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, had these words to say:

The United States and its Attorney General must stand for the rule of law – and stand in the breach, if need be. There is no question in my mind that waterboarding is torture and is illegal under our laws and treaty obligations. ...

There are fundamental issues that require moral and legal clarity, and the willingness to act on our convictions -- and this is one of them. The United States does not torture. The United States does not inflict cruel, inhuman, and degrading treatment. This is part of the moral fiber of our country and our historical place as a world leader on human rights, and it has long been fixed in our laws, our constitution, and our values. ...

There may be interrogation techniques that require close examination and extensive briefings. Waterboarding is not among them. No American should need a classified briefing to determine whether waterboarding is torture. Waterboarding was used at least as long ago as the Spanish Inquisition. We prosecuted Japanese war criminals for waterboarding after World War II.

As Rear Admiral John Hutson, former Judge Advocate General of the Navy, testified this year before the Judiciary Committee: "Other than perhaps the rack and thumbscrews, water-boarding is the most iconic example of torture in history.... It has been repudiated for centuries. It's a little disconcerting to hear now that we're not quite sure where water-boarding fits in the scheme of things. I think we have to be very sure where it fits in the scheme of things."

Judge Mukasey was not asked to evaluate any secret "facts and circumstances." He was asked whether waterboarding is illegal. Our law makes torture illegal, and waterboarding is torture, and it is illegal. It is frankly not dependent on any, "relevant facts and circumstances of the technique’s past or proposed use."

When it comes to our core values - the things that make our country great and that define America's place in the world - these values do not waiver from president to president. America should continue to stand against torture.

I agree with Senator John McCain, who sadly knows too much about the issue of torture. He said recently: "Anyone who knows what waterboarding is could not be unsure. It is a horrible torture technique used by Pol Pot and being used on Buddhist monks as we speak." No presidential signing statement or secret Administration memo can be allowed to change our laws' prohibitions against waterboarding. ...

I am eager to restore strong leadership and independence to the Department of Justice. I like Michael Mukasey. I wish that I could support his nomination. But I cannot. America needs to be certain and confident of the bedrock principle - deeply embedded in our laws and our values - that no one, not even the President, is above the law.

I heartily agree. How do I respond to those who think that our core values, like the rule of law, are a luxury we can no longer afford in today's frightening world? To borrow from the words of Mark 8:36 - For what shall it profit our country, if we shall gain the whole world, and lose our soul?

Oh Canada!

Canada High Court Disregards Canadian Charter of Rights and Freedoms' Right To Remain Silent

A sharply divided Canadian Supreme Court affirmed in a 5-4 decision the murder conviction of a British Columbia man widely seen as a test of the right to remain silent guaranteed in the Canadian Charter of Rights and Freedoms.

Jagrup Singh established that the police continued to question him after arrest and while in custody in relation to a murder investigation, even after repeatedly asserting his right to remain silent and not be questioned further about the murder. Until Mr. Singh's case suspects in Canada, like custodial suspects in the United States who have this right under the Fifth Amendment, were thought to have the right to remain silent in the face of custodial interrogation and not to be compelled to be a witness against themselves in criminal proceedings.

That is until the Canadian Court held that the trial judge had been aware of the dangers of coercion in Mr. Singh's case but had made the right decision in allowing the confession into evidence.

Dissenting Justice Morris Fish wrote that:

The interrogator understood very well that the accused had chosen not to speak with the police but nonetheless disregarded the accused’s repeated assertions of his right to silence. In his relentless pursuit of a confession “no matter what”, the interrogator urged the accused, subtly but unmistakably, to forsake his counsel’s advice. The accused was thus deprived not only of his right to silence, but also, collaterally, of the intended benefit of his right to counsel. Detainees left alone to face interrogators who persistently ignore their assertions of the right to silence and their pleas for respite are bound to feel that their constitutional right to silence has no practical effect and that they in fact have no choice but to answer.

During the past decade Justices Scalia and Thomas have decried their liberal brethern's reference to foreign Courts and law to support modern socially developing constitutional principles not found in the words and text of the Constitution. Let us hope in that in regards to the Fifth Amendment, at least, the conservative wing of the Court harken to their own words.

What Do The Terms "Presumption Of Innocence" and "Reasonable Doubt" Mean?

Recently I came across a jury instruction given in a criminal case presided over by the Hon. Robert H. Whaley, Chief Judge, United States District Court for the Eastern District of Washington, that explains better than any jury instruction I have ever seen what the terms "presumption of innocence" and "proof beyond a reasonable doubt" really mean.

The law presumes a Defendant to be innocent of a crime. This is not an idle presumption or one that we merely give lip service to. The presumption of innocence is a basic and most important part of our criminal justice system. It is a true presumption of innocence that exists at the start of the trial and that continues throughout the trial. The presumption of innocence alone is a proper basis for a finding of not guilty unless all twelve jurors are convinced that the prosecution has established the guilt of the Defendant by proof beyond a reasonable doubt.

The burden of proof beyond a reasonable doubt is always upon the prosecution. There is no burden what-so-ever on a Defendant to prove his or her innocence or to call any witnesses or to produce any evidence.

Proof beyond a reasonable doubt must be proof of such a convincing nature that you would not hesitate to rely and act upon such evidence in making the most important decisions in your own life. It is not necessary, however, for the Government to establish guilt beyond all possible doubt. Proof beyond a reasonable doubt is the highest burden of proof in our justice system.

The scale of burdens in our justice system starts with a preponderance of the evidence. That means "more likely than not." Obviously, proof that is more likely than not does not constitute proof beyond a reasonable doubt. The next highest burden of proof in our system is by "clear and convincing evidence," which is much higher than the preponderance of the evidence. "Clear and convincing evidence" means that the evidence meets a "highly probable" standard. Even "highly probable" clear and convincing evidence does not establish proof beyond a reasonable doubt.

A reasonable doubt may arise not only from the evidence, but also from a lack of evidence. If you, as a jury, after careful and impartial consideration of all the evidence, finds that the prosecution has not met its burden of proving a Defendant is guilty of a charge by proof beyond a reasonable doubt, it is your duty and obligation to return a Not Guilty ("Not Proven Beyond a Reasonable Doubt") verdict to that charge. On the other hand, if the prosecution has established the guilt of the Defendant on a charge by proof beyond a reasonable doubt, it is your duty and obligation to return a guilty ("Proven Beyond a Reasonable Doubt") verdict to that charge.

Because this instruction gives real meaning to these important concepts, the government always opposes it. There would be fewer wrongful convictions at trial if other judges would give juries this instruction of law.

Innocent!

In 1970 Congress enacted the first federal criminal forfeiture law in the form of the Racketeer Influenced and Corrupt Organizations (RICO) Act. The purported justification for criminal forfeiture was that it was a criminal punishment for the guilty; a punishment imposed through a criminal proceeding directed against an individual for his criminal acts. Since 1970 Congress has steadily increased the types of criminal offenses for which criminal forfeiture is a sanction.

Forfeiture laws, both criminal and civil, have become increasingly popular with state and federal law enforcement officials. A subject that was once relegated to obscure passages in the musty recesses of law books, and rarely invoked in practice, has become the darling of law enforcement. Over the past 20 years, criminal and civil forfeiture have become a major weapon in both the states’ and the federal government's "war on drugs." In many jurisdictions local police rely on seized and forfeited property to significantly finance their operational budgets. Forfeitures have truly become a monetary tail wagging the law enforcement dog.

I just finished reading a book by Sam Harris entitled The End of Faith. Mr. Harris makes many intelligent and well reasoned arguments pointing out the dangers and absurdities of organized religion. But when Mr. Harris recounts for his readers the horrors of the 12th and 13th century Holy Inquisition, it occured to me that it is from this dark period in human history from whence our modern day forfeiture laws have sprung. According to Mr. Harris, although The Holy Inquisition formally began under Pope Lucius III in 1184, it really hit its stride in 1199, when Pope Innocent III decreed that all property belonging to a convicted heretic would be forfeited to the Church and shared with local officials as a reward for their candor in exposing a heretic.

Drug dealer? Heretic? Both alleged miscreants engaged in victimless crimes with local officials only too happy to share in the plunder of their worldly goods. How ironic. The man to whom we can trace our morally bankrupt practice of criminal forfeiture was a religious man named Innocent!