Issue 311
October 5, 2004
v Forget Bush-Kerry. What About Scott-Laci? by William Booth and Kimberly Edds
v Prosecutor Tells Jury Peterson Killed Wife to Live a Fantasy by The Associated Press
v Deathbed Statement led to conviction by Mac Daniel
v Justices to Mull Rights of Those Seeking Police Protection by Linda Greenhouse
v On the Stand, Lawyer for a Terrorist Sheik Shows Strain by Julia Preston
v Stewart Adjusts With Chef’s Touch by Brooke A. Masters
v After Terror, a Secret Rewriting of Military Law by Tim Golden
v Murder Case That Transfixed Las Vegas Provides a Sequel by Amy Argetsinger
The following article appeared on washingtonpost.com on
November 2, 2004:
Forget
Bush-Kerry. What About Scott-Laci?
A Trial
Galvanizes, and Polarizes, the Media
By William
Booth and Kimberly Edds
REDWOOD
CITY, Calif., Nov. 1 -- The story has dominated cable television, employed an
army of talking heads and gone on for what seems like an eternity. And this
week it is coming to a close.
Not the
election -- the Scott Peterson trial.
The story of
how the pretty and pregnant Laci Peterson went missing on Christmas Eve 2002
and her fertilizer salesman husband was charged with murder after her body and
that of her unborn son, Conner, were found in San Francisco Bay is probably
known to every sentient being in America. As is the fact that Scott Peterson's
phone conversations with his former lover were recorded.
For almost
two years, the buildup and the trial have been followed relentlessly by such
cable talkers as Larry King, Greta Van Susteren and Dan Abrams and their
interchangeable panels of legal analysts. The story has made the cover of
People magazine and has been a constant fixture on talk radio, cable and some
network newscasts, and in the tabloids. There were segments today on "Good
Morning America" and the "Today" show. A Google search spits out
more than 141,000 hits in 0.14 seconds. There's been a TV movie, "Perfect
Husband: The Laci Peterson Story" on USA Network, which garnered more than
5 million viewers, the biggest audience for a USA telefilm in two years.
But if ever
there was a story that divided the media into two camps, it's the Peterson
case, which is expected to go to the jury this week after a trial now in its
23rd week. "Serious" news organizations generally stayed away from
the story. Even in television, there was a division.
Andrew
Tyndall, who tracks network news coverage on his Tyndallreport.com Web site,
said the Peterson case has been one of the most heavily covered stories the last
two years on daytime cable and the morning network shows -- but has received
relatively light coverage on TV's evening news hours.
"What
is quite apparent is the enormous difference between the network morning shows
and their evening news shows," Tyndall said. "It's black and
white."
Why have
Laci and Scott created such interest -- and such a divide?
Here's what
the news directors and media critics say: The victim was young, female,
middle-class and pregnant -- and her husband appears to be the villain (or at
least a cad; that he cheated on her is not in dispute). And once the public
seized on the case, embraced the families' pain and the did-he-do-it aspects,
it was a ratings boost that cost relatively little to cover and produced the
endless back-and-forth of trial dissection by proxy that can keep a story
running for months.
"Laci
Peterson was the all-American girl," said Jim Hammer, a Fox News legal
analyst and former prosecutor doing instant commentary on the Monday morning
proceedings outside the courtroom. Hammer and a half-dozen other reporters
stood ready to face the pool cameras that have made it easy for any media
outlet to grab a quick sound bite or two.
After his
moment was over, Hammer stepped away and said, "You know, there could be dozens
of dead, poor African American women and nobody's ever heard of them, and I can
understand how this trial says if you're white and pretty, you get more
attention."
Marty
Kaplan, associate dean of the University of Southern California's Annenberg School
for Communication, decried the trial coverage as "pure white sugar,
addictive and without nutrition."
"It's a
sign of the times," Kaplan said. "There is no redeeming value. No
morality play. No public policy fig leaf. It only goes to our most prurient
interests. The trashiest novelists could not have come up with this. But we
can't seem to help ourselves. It's our lizard brains."
The media
critics say the Peterson trial has as its most immediate progenitor O.J.
Simpson, whose capture and criminal and civil trials were a national obsession
for more than 2 1/2 years. And after O.J., Kaplan said, there has been a
long-running string of sensational stories: JonBenet Ramsey, Chandra Levy,
Elizabeth Smart, Martha Stewart and, of course, the biggest tabloid story of
all, Monica Lewinsky and Bill Clinton.
"The
Peterson trial has everything a tabloid outlet would want," Kaplan said,
"except the blue dress."
"The
first time I heard about this story, I said forget about it, it's
nothing," said Chris Little, news director of KFI radio in Los Angles, the
most popular AM talk station in Southern California. The station's Peterson
correspondent, Laura Ingle, has been a constant presence on the Fox News
Channel. "People have just been sucked into it. It's sort of turned into a
whodunit novel, and people are just fascinated by that."
And, Little
said, "we give the listeners what they want to hear as opposed to the
stories that we think they should be interested in. If we don't sell what they
want to buy, they're not going to come back. In radio you're in business to
make money, not save the world. It is, so we cover it."
Abrams,
anchor of "The Abrams Report" on MSNBC, began covering the case when
Laci Peterson was still missing. Since the trial began, Abrams has dedicated at
least one of the six segments on his hour-long weeknight legal show to the
Peterson case.
"I
think anyone who says this is one of the most important cases of our day is
either lying or fooling themselves," Abrams said, "but I think you
can certainly justify coverage of this case because it's interesting. I think
anytime we cover a trial, we allow people to see how the criminal justice
system works or doesn't work."
Abrams
added: "We get people calling in all the time asking, 'Why do we spend so
much time on the Laci Peterson trial?' I get that question. I think that's a
fair question. My answer to that is it is an interesting case."
And he has a
few words for what he calls "intellectual snobs":
"The
intellectual snobs want to blame the media for covering stories that aren't
'important.' But you just don't find many cases where a 7 1/2-month pregnant
woman is killed on Christmas Eve and her husband goes to trial. People can say
it happens all the time but it doesn't."
Tom
Rosenstiel, director of the Project for Excellence in Journalism, said the
attention a case like Peterson's draws actually changes the event itself.
Defense lawyer Mark Geragos took the case only after it received significant
media attention, knowing the case would be fodder for talk shows and cable news
networks. That media attention allows Peterson to have a much higher-profile
attorney than he would have been able to hire without all of the hoopla,
Rosenstiel said.
"It has
all the elements of a murder tabloid top story," Rosenstiel said.
"The morning network shows and cable television have a need for a certain
kind tabloid story where the facts of the story are very simple and don't
change very much. It's like a soap opera: You can go away for months at a time
and you can come back and plug right back into the plot."
Marlene
Dann, senior vice president of daytime programming at Court TV, said the
network's decision to preempt regular prime-time programming to cover the
Peterson closing arguments is a first for a trial that has not allowed cameras
in the courtroom. The channel is also offering free text-messaging when the
verdict comes in.
"I
think the media coverage is a reaction to what viewers want," Dann said.
"I don't think we are creating the interest. We are reacting to the
interest."
*
* * * *
The following article appeared on nytimes.com on
November 2, 2004:
Prosecutor
Tells Jury Peterson Killed Wife to Live a Fantasy
By The
Associated Press
REDWOOD
CITY, Calif. Nov. 1 - After nearly five months of testimony, the prosecution in the Scott Peterson trial
tried to connect all of the dots
for jurors in closing arguments on Monday, saying that Mr. Peterson had killed his wife to achieve freedom and
his fantasy of a jet-set lifestyle that he would never see as a married
father living in Modesto.
In a
summation that relied heavily on photographs and audio tapes, Rick Distaso, the
senior deputy district attorney of Stanislaus County, urged jurors to use
common sense in analyzing the mostly circumstantial evidence against Mr.
Peterson, who has been charged with the murder of his wife, Laci Peterson, and
her fetus, whom the couple had planned to name Conner.
He could
face the death penalty if convicted.
Mr. Distaso
outlined Mr. Peterson's motive for murder and suggested that the defendant had
the murder in mind at least a month before Ms. Peterson disappeared.
"He
didn't want that dull married life," Mr. Distaso said. "He did not
want that baby. The reason he killed Laci Peterson was because Conner was on
the way."
Mr. Distaso
presented a pictorial account of how he believed Mr. Peterson killed his wife
in December 2002. To start, he projected a large photograph of Ms. Peterson on
the wall across from the jury box.
"The defendant
strangled or smothered Laci Peterson on the night of Dec. 23 or in the morning
when she was getting dressed," Mr. Distaso said.
Mr. Peterson
then wrapped his wife's body in a blue tarp, placed it in his truck, then
weighted the body and dumped it into San Francisco Bay, the prosecutor told the
jury.
Mr. Distaso
showed jurors aerial photographs of the spot where Mr. Peterson said he went
fishing on Dec. 24, 2002, an area so far offshore no one could have seen a body
being dumped, he said. Then jurors were shown a photograph of a spot not far
away where the remains washed ashore in April 2003.
Mr. Peterson
is the only person "we know without any doubt that was in the exact
location in the exact spot where Laci and Conner washed ashore," the
prosecutor said.
"That
alone is proof beyond a reasonable doubt in this case," Mr. Distaso said.
"You can take that fact to the bank and you can convict this man of
murder."
Much of Mr.
Distaso's closing argument centered around tying up loose ends, giving details
of what he called a long list of lies the defendant told to friends, family
members, the police and his girlfriend, Amber Frey.
Mr. Distaso
suggested that Ms. Frey represented the life of freedom Mr. Peterson so
coveted.
Citing
photographs, taped telephone conversations and other evidence, he argued that
Mr. Peterson was living a double life: the life of the devoted and grieving
husband and that of a carefree playboy.
The defense,
which is scheduled to deliver its closing argument Tuesday, has argued that Ms.
Peterson was abducted by strangers, possibly for money, and then killed.
* * * * *
The
following article appeared on boston.com on November 2, 2004:
Deathbed
statement led to conviction
By Mac
Daniel
David Allen
Jones was living in Georgia with his wife and children, seemingly safe from
scrutiny after a botched autopsy said the death of his 14-year-old neighbor two
decades earlier in Reading was the result of heart disease, not homicide.
Then, his
mother, dying of colon cancer, confided in her sister what had been tormenting
her for 21 years: She suspected her son had killed Robin Gilbert.
With that
single statement in 1996, the sister called Reading police, the case was
reopened, and Gilbert's remains were exhumed. A second autopsy found that she
had been strangled.
Suddenly,
Gilbert's mysterious death on July 2, 1975, was now a homicide, and David Jones
was the prime suspect.
Yesterday,
as prosecutors revealed his mother's deathbed statement for the first time,
Jones, now 45, received the maximum sentence of 19 to 20 years in prison for
voluntary manslaughter.
The balding
Jones, who sat emotionless in a gray T-shirt and sweat pants, was led away from
the Middlesex County courtroom in handcuffs, headed for MCI-Cedar Junction.
A dozen of
Gilbert's relatives and friends, sitting in two groups on the wooden benches,
sighed and hugged, witnessing a delayed form of justice 29 years after Gilbert
was found face down under a shallow pile of branches, pine needles, and dirt.
"We've
been waiting so long for this," her brother David said during the
sentencing hearing, "and now, it's here."
But they
still wondered why Jones's mother kept her secret so long.
"On her
deathbed, she gave David up," Susan Lusk, Gilbert's best friend and one of
the last people to see her alive, said afterwards. "We feel that she knew
for 22 years that he did it. And they just never said anything, for whatever
reason."
Gilbert
disappeared on the night of July 1, 1975, after watching a horror movie at home
with Lusk, then 15. With her parents asleep upstairs and, authorities say,
after receiving a call from Jones, then 16, Gilbert sneaked out of the house in
her socks to have a cigarette at a nearby teen hangout on Meadowbrook Golf
Course. A walker found her body the next morning.
The medical
examiner at the time ruled her death was due to heart disease, ignoring her
torn blouse and the scrapes on her back and chest.
David
Gilbert, who was 12 when his sister was killed, told Middlesex Superior Court
Judge Elizabeth Donovan at the sentencing hearing yesterday that he worried for
years about "spontaneously dying" of a heart attack.
"For 22
years, the dreams I had, the nightmares, it's just very hard to describe,"
he said. "The pain is just so hard to describe."
Eight months
after Gilbert's death, David Jones -- immediately suspected as the killer by
family and friends -- broke into the Gilbert home and hit her sister over the
head with a flashlight, injuring her. He pleaded guilty to assaulting Gail
Gilbert.
Despite
this, investigators did little, as friends and family tried to come to grips
with Robin Gilbert's strange demise.
"We
just accepted that that's the way it was," Lusk told reporters, including
a crew from the CBS show "48 Hours," after sentencing. "And the
police didn't seem to believe that she was murdered at the time, which to us
seemed unbelievable, that a girl, 14 years old, could die of a heart attack in
the middle of a golf course and bury herself and drag herself 100 yards? It's
just unbelievable. A 5-year-old could figure that out. Why the Reading police
didn't, still we have questions about, and they'll have to answer for
that."
In 1987, 12
years after Gilbert's death, Jones moved to Georgia. For nine years, he held
menial jobs and landed in jail nearly a dozen times on charges including
battery, driving under the influence, and failing to pay child support. By
1996, he was living with his second wife and children in a mobile home in the
Atlanta suburb of Loganville and working as a cook at a seafood restaurant.
Then,
Jones's mother, Marjorie, implicated him to her sister.
Prosecutor
Rick Grundy said yesterday that Marjorie Jones apparently had caught her son
returning home late on the night of Gilbert's death. David Jones was close
friends with Gilbert's brother, and David had earlier told his mother that
Robin Gilbert was an old girlfriend, Grundy said.
Later, after
learning of Gilbert's death, Marjorie Jones apparently confronted her son,
Grundy said. "He wasn't where he said he was, and it caught him in a
lie," he said after the sentencing hearing.
After
Marjorie Jones made her deathbed statement, Jones's aunt called Reading police,
setting in motion a seven-year process. Before yesterday, authorities had never
talked in detail about Marjorie Jones's statement, saying only that a diary and
a phone tip helped reopen the case. Grundy said that Marjorie Jones hinted at
her suspicions in the diary and that the tip came from her sister.
After
Jones's 1997 arrest in Georgia, he fought extradition and then sought to be
tried as a juvenile. On Thursday, after a two-week trial and 4 days of
deliberations, a Middlesex jury convicted Jones of voluntary manslaughter. The
jury had also been given the option of finding him guilty of first- or
second-degree murder.
Gilbert's
family said yesterday they were satisfied with the outcome. The only drawback,
they said, was that Jones could be out of prison in as soon as 4 years. Because
the crime occurred before mandatory truth-in-sentencing guidelines, he has to
serve only two-thirds of the sentence before becoming eligible for parole.
Jones was held in jail without bail for seven years awaiting trial.
Kevin
Patterson, a Reading police detective who along with State Police Major Mark
Delaney helped reopen the case, was a patrolman when Gilbert was killed.
Yesterday's
sentence helps right two wrongs: Gilbert's death and the initial local
investigation, he said. "I do think to some degree it corrects some
shortcomings that came about in the past."
* * * * *
The
following article appeared on nytimes.com on November 2, 2004:
Justices
to Mull Rights of Those Seeking Police Protection
By Linda
Greenhouse
WASHINGTON,
Nov. 1 - The Supreme Court agreed Monday to decide an important case about the rights of those who turn
to the police for protection against a violent family member or acquaintance.
The
question, framed in a lawsuit brought by a woman whose estranged husband
murdered their three young daughters, is whether the failure by the police to
enforce a protective court order she had obtained violated her constitutional
right to due process.
The lower
courts have confronted the question numerous times in recent years and have
produced conflicting answers. In the case the justices accepted, the United
States Court of Appeals for the 10th Circuit, in Denver, voted 6 to 5 to permit
the woman's lawsuit, against the town of Castle Rock, Colo., to proceed to
trial. The federal district court in
Denver had
dismissed the suit, in which the plaintiff, Jessica Gonzales, is seeking $30
million in compensatory damages and millions more in punitive damages.
Colorado law
makes it mandatory for the police to provide protection once a protective order
is issued. "A peace officer shall use every reasonable means to enforce a
protection order," the state law provides. In addition, the law requires
the police to make an arrest if they have probable cause to believe that such
an order has been violated. Many other states have similar laws.
The appeals
court's majority reasoned that the law gave Colorado residents a vested right
to receive a particular government service, police protection, that cannot be
withheld without procedural safeguards intended to prevent the government from
acting in an arbitrary way.
The case
will require the Supreme Court to revisit a doctrine articulated by Chief
Justice William H. Rehnquist in a well-known case from 1989, in which a county
social services department in Wisconsin was found not to have breached a
constitutional duty when it returned a young boy to an abusive father and then
failed to monitor his safety. That decision, DeShaney v. Winnebago County,
established the rule that the government is
not ordinarily
obliged to protect people from harm at the hands of their fellow private
citizens.
The DeShaney
opinion was based on a branch of constitutional analysis known as
"substantive due process." The 14th Amendment bars the states from
depriving "any person of life, liberty, or property" without due
process, and the substantive due process question asks whether the challenged
government action has violated any of those three guarantees.
"Nothing
in the language of the Due Process Clause itself requires the State to protect
the life, liberty, and property of its citizens against invasion by private
actors," Chief Justice Rehnquist said in his opinion.
The 14th
Amendment also has a procedural component: even if the state has a permissible
reason for impinging on the amendment's substantive protections, it must use
due process proper procedures in doing so. In the DeShaney case, Chief Justice
Rehnquist said the question of whether the county had used proper procedures in
its care for the child had not been properly presented to the court.
Consequently, the ruling has been interpreted by some lower courts as not
foreclosing a procedural ruling in a future case.
That was the
approach the 10th Circuit took in the new case, Town of Castle Rock v.
Gonzales, No. 04-278. The majority said Ms. Gonzales had presented a plausible
case that the police had failed to follow proper procedure in disregarding her
repeated requests for help after her husband had kidnapped the three girls -
ages 7, 9 and 10 - from the yard of their house on the afternoon of June 22,
1999.
Ms. Gonzales
reported the girls missing, telling the officers who arrived at her house that
she suspected her husband and feared that he might be violent. She showed the
officers a copy of the restraining order she had obtained a month earlier in
connection with their divorce case.
But the
police failed to take any action, even when Ms. Gonzales learned that her
husband, Simon Gonzales, was with the girls at a local amusement park. She
called the police repeatedly and went to the police station herself after
midnight. At 3:20 in the morning, Mr. Gonzales arrived at the police station in
a truck, opened fire with a semiautomatic handgun he had bought the previous
day and was shot dead at the scene. The bodies of the three girls were in the
cab of the truck.
In its
Supreme Court appeal, the town's lawyer argued that by permitting the lawsuit
to proceed, the 10th Circuit's decision threatened to "convert hundreds of
procedural mandates into constitutional claims" and could
"bankrupt" municipal governments for their inevitable instances of
"less than perfect" law enforcement.
"Federal
courts should not lay such a heavy hand on evolving state efforts to address
such quintessentially local issues of crime and violence," the brief said.
The town is
supported in its appeal by the National League of Cities and the International
Municipal Lawyers Association.
On
the Stand, Lawyer for a Terrorist Sheik Shows Strain
by Julia
Preston
In the final
minutes of a long day on the stand yesterday, Lynne F. Stewart lost her
lawyerly calm and began to cry, showing a moment of doubt about the unorthodox
defense of a client that led to charges of terrorist conspiracy against her.
Ms. Stewart
suddenly struggled to speak after her lawyer, Michael E. Tigar, asked if she
would "do it the same way" again, referring to her defense of Sheik
Omar Abdel Rahman, a fundamentalist Islamic cleric who is serving a life
sentence in federal prison for a thwarted bombing plot in New York City.
"Sitting
here today," she said in halting words, "it's a very difficult
question. I am diminished by the loss of my clientele. My family has suffered
tremendously. I don't know if I would. . . ." Her voice trailed off.
Encouraged
by Mr. Tigar to complete her thought, Ms. Stewart changed tone, recovering her composure. "I like to
think that I would do it," she said, "because it was a duty owed to
the client." She insisted that her actions did not "violate any
command, any restriction of the United States of America." As she stepped
down from the stand, she wiped away tears with her fingers.
It was the
third day of Ms. Stewart's testimony in Federal District Court in Manhattan,
and the first time she gave the jury a glimpse of the toll the terror trial,
now in its fifth month, has taken on her.
It was also
a day when Ms. Stewart laid out her legal rationale for conveying a message
from Mr. Abdel Rahman to the international news media, even though she had agreed
in writing to special prison rules that barred the sheik from communicating
with reporters.
Ms. Stewart
and her two co-defendants are facing one of the most extensively documented and
ambitious terror prosecutions brought by the Justice Department since the Sept.
11 attacks.
Mr. Tigar's
line of questioning yesterday centered on Ms. Stewart's decision, after a
prison visit with the sheik on May 19 and 20, 2000, to telephone a Reuters
correspondent in Cairo and release a statement in which the sheik withdrew his
support for a three-year-old cease-fire by his militant followers in Egypt.
Prosecutors have charged that Ms. Stewart relayed an order for terrorist war
from her client when he was supposed to
be
incommunicado.
On the
stand, Ms. Stewart acknowledged that her decision had been a "close
call." But she said that continuing to represent Mr. Abdel Rahman while he
was in prison and after he had lost all his appeals had been "a team
effort" she shared with Ramsey Clark, a former United States attorney
general, and Abdeen Jabara, a lawyer who specializes in Arab clients. She said
the lawyers believed that the special prison restrictions imposed on
the sheik
included a "bubble" that allowed the lawyers to continue to develop
their own defense strategy and exercise their attorney-client privileges.
She said she
had "an expansive view" of the prison rules, which she signed on to
repeatedly after they were imposed in 1997. "I understood this meant we
were permitted to do the necessary legal work to vigorously defend Sheik Omar
Abdel Rahman, who was incommunicado," she said.
Her
approach, she said, was to do whatever she could to keep the sheik "in the
public eye," with the goal of building political support to eventually
send him back to Egypt to serve out his sentence, she said. Although she does
not speak Arabic, she said she understood that the sheik's May 2000 message was
intended only to start a debate among his followers about the Egyptian
cease-fire, not to end it.
"Did
you think your client wanted people to pick up the gun and start
shooting?" Mr. Tigar asked.
"No,"
Ms. Stewart said emphatically.
Asked if she
had ever passed to the news media an instruction from the sheik that
"people should commit violence," she said, "Absolutely
not."
She added:
"It would not have been proper. We are not allowed to become part of the
client's effort to break the law."
Ms. Stewart
said she remained shocked that the government had made secret videotapes of her
meetings with the sheik in federal prison in Rochester, Minn., and secret
recordings of her phone calls to him. She said she had made diversionary
comments in meetings when the sheik was dictating his cease-fire message to her
Arabic translator because she distrusted the guards, whom she regarded as
meddlesome.
"It's
not because anything is being said that is illegal," she said. "It's
because the confidence of the client is made to the lawyer. It is not to be
shared with anyone else."
Ms.
Stewart's comment left clear that her view of her client was diametrically
opposed to the government's. While she regarded him as an ailing religious
figure who had been reduced to a "mental breakdown" by his near-total
isolation in prison, to federal prosecutors he remains a committed terrorist
whose words were as dangerous as bullets.
After Ms.
Stewart released the sheik's message, she received a letter from Patrick
Fitzgerald, who had been a prosecutor in the sheik's trial, warning of a risk
that buildings could get blown up because of Mr. Abdel Rahman's messages.
Ms. Stewart
said she dismissed the warning at the time. "I thought that was a Pat
Fitzgerald rhetorical flourish," she said.
The
following article appeared on washingtonpost.com on October 22, 2004:
Stewart
Adjusts With Chef's Touch
By Brooke A.
Masters
NEW YORK,
Oct. 21 -- Martha Stewart told a federal court, in an appeal made public
Thursday, that she shouldn't be incarcerated. In the meantime, she is making
the most of her days in a federal prison camp, according to her attorney.
Stewart, 63,
began serving a five-month sentence earlier this month and is adjusting well,
said her appeals attorney, Walter E. Dellinger III, who visited the
multimillionaire businesswoman in Alderson, W.Va., last week to discuss the
filing of her appeal.
She and a
group of other inmates have been doing some experimental cooking in the
evenings, using the prison microwave and the limited ingredients available to
make "creative food" for evening snacks, Dellinger said. One effort
involved saving hard-boiled eggs from the prison kitchen and then using noodles
and other flavoring to make an Asian-style dish.
Stewart is
exercising daily and working as a member of a prison detail that does a variety
of tasks, including cooking and cleaning, he said.
"I was
very impressed with what a positive experience she has managed to make
this," the lawyer said in an interview. "She is so resilient that she
is clearly making the best of it."
Stewart said
in her appeal, which was filed late Wednesday and released Thursday, that her
criminal trial was "fundamentally unfair" and that her obstruction,
conspiracy and lying convictions should be overturned. Stewart chose to report
to prison even though she could have remained free while her appeal was
pending, saying she wanted to get her ordeal over and return to her business
and the life she loves, including planting her spring garden.
Since she
reported to the prison camp in Alderson in the pre-dawn hours of Oct. 8,
Stewart has been flooded with more than 10,000 pieces of mail, and she recently
posted an appeal to her fans on her personal Web site, www.marthatalks.com.
"I have been told that some of these letters have included gifts and
money. Please know that while these gestures of friendship and support are
deeply appreciated, any such items must be returned to the sender by prison
officials," Stewart wrote, asking that fans make a charitable donation
instead.
Stewart will
almost certainly have completed her sentence by the time the U.S. Court of
Appeals for the 2nd Circuit rules on her appeal, she and her lawyers said. But
they pressed hard for her exoneration in the 87-page appeals brief, writing
that the trial of Stewart and her former broker Peter E. Bacanovic had been tainted
by insider trading accusations that they should have been allowed to rebut.
Stewart and
Bacanovic, 42, were convicted of obstructing an insider trading investigation
and lying about the reasons for her December 2001 sale of ImClone Systems Inc.
stock. Neither was charged with criminal insider trading, though the Securities
and Exchange Commission has a civil case pending against them.
Dellinger
and the legal team at O'Melveny & Myers LLP also argued that Stewart's
constitutional
right to confront her accusers was violated when prosecutors played audiotapes
of Bacanovic's SEC testimony that contradicted what Stewart told the same
investigators. Since Bacanovic never took the stand, Stewart's lawyers were not
able to cross-examine him. The defense said that violated Crawford v.
Washington, a U.S. Supreme Court decision that came down shortly after the
trial ended.
Bacanovic's
lawyers made the same argument in an appeal filed Wednesday, saying
Stewart's
statements should not have been used against him.
The brief
also cited allegations that both a juror and a government ink expert lied
during the trial. "Together they make an overwhelming case for setting
aside this verdict," the brief said. The ink expert was found not guilty
of perjury earlier this month.
The U.S.
attorney's office in Manhattan, which prosecuted Stewart's case, declined to
comment.
* * * * *
The
following article appeared on nytimes.com on October 24, 2004:
After
Terror, a Secret Rewriting of Military Law
By Tim
Golden
WASHINGTON -
In early November 2001, with Americans still staggered by the Sept. 11 attacks, a small group of
White House officials worked in great secrecy to devise a new system of justice
for the new war they had declared on terrorism.
Determined
to deal aggressively with the terrorists they expected to capture, the
officials bypassed the federal courts and their constitutional guarantees,
giving the military the authority to detain foreign suspects indefinitely and
prosecute them in tribunals not used
since World
War II.
The plan was
considered so sensitive that senior White House officials kept its final
details hidden from the president's national security adviser, Condoleezza
Rice, and the secretary of state, Colin L. Powell, officials said. It was so
urgent, some of those involved said, that they hardly thought of consulting
Congress.
White House
officials said their use of extraordinary powers would allow the Pentagon to
collect crucial intelligence and mete out swift, unmerciful justice. "We
think it guarantees that we'll have the kind of treatment of these individuals
that we believe they deserve," said Vice President Dick Cheney, who was a
driving force behind the policy.
But three
years later, not a single terrorist has been prosecuted. Of the roughly 560 men
being held at the United States naval base at Guantánamo Bay, Cuba, only 4 have
been formally charged. Preliminary hearings for those suspects brought such a
barrage of procedural challenges and public criticism that verdicts could still
be months away. And since a Supreme Court decision in June that gave the
detainees the right to challenge
their imprisonment in federal court, the Pentagon has stepped up efforts
to send home hundreds of men whom it once branded as dangerous terrorists.
"We've
cleared whole forests of paper developing procedures for these tribunals, and
no one has been tried yet," said Richard L. Shiffrin, who worked on the
issue as the Pentagon's deputy general counsel for intelligence matters.
"They just ended up in this Kafkaesque sort of purgatory."
The story of
how Guantánamo and the new military justice system became an intractable legacy
of Sept. 11 has been largely hidden from public view.
But
extensive interviews with current and former officials and a review of
confidential documents reveal that the legal strategy took shape as the
ambition of a small core of conservative administration officials whose
political influence and bureaucratic skill gave them remarkable power in the
aftermath of the attacks.
The strategy
became a source of sharp conflict within the Bush administration, eventually
pitting the highest-profile cabinet secretaries - including Ms. Rice and
Defense Secretary Donald H. Rumsfeld - against one another over issues of due
process, intelligence-gathering and international law.
In fact,
many officials contend, some of the most serious problems with the military
justice system are rooted in the secretive and contentious process from which
it emerged.
Military
lawyers were largely excluded from that process in the days after Sept. 11.
They have since waged a long struggle to ensure that terrorist prosecutions
meet what they say are basic standards of fairness. Uniformed lawyers now
assigned to defend Guantánamo detainees have become among the most forceful
critics of the Pentagon's own system.
Foreign
policy officials voiced concerns about the legal and diplomatic ramifications,
but had little influence. Increasingly, the administration's plan has come
under criticism even from close allies, complicating efforts to transfer scores
of Guantánamo prisoners back to
their home
governments.
To the
policy's architects, the attacks on the World Trade Center and the Pentagon
represented a stinging challenge to American power and an imperative to
consider measures that might have been unimaginable in less threatening times.
Yet some officials said the strategy was also shaped by longstanding political
agendas that had relatively little to do with fighting terrorism.
The
administration's claim of authority to set up military commissions, as the
tribunals are formally known, was guided by a desire to strengthen executive
power, officials said. Its legal approach, including the decision not to apply
the Geneva Conventions, reflected the determination of some influential
officials to halt what they viewed as the United States' reflexive submission to international law.
In devising
the new system, many officials said they had Osama bin Laden and other leaders
of Al Qaeda in mind. But in picking through the hundreds of detainees at
Guantánamo Bay, military investigators have struggled to find more than a dozen
they can tie directly to significant terrorist acts, officials said. While
important Qaeda figures have been captured and held by the C.I.A.,
administration officials said they were reluctant to bring those prisoners
before tribunals they still consider unreliable.
Some
administration officials involved in the policy declined to be interviewed, or
would do so only on the condition they not be identified. Others defended it
strongly, saying the administration had a responsibility to consider
extraordinary measures to protect the country from a terrifying enemy.
"Everybody
who was involved in this process had, in my mind, a white hat on," Timothy
E. Flanigan, the former deputy White House counsel, said in an interview.
"They were not out to be cowboys or create a radical new legal regime.
What they wanted to do was to use existing legal models to assist in the
process of saving lives, to get information. And the war on terror is all about
information."
As the
policy has faltered, other current and former officials have criticized it on
pragmatic grounds, arguing that many of the problems could have been avoided.
But some of the criticism also has a moral tone.
"What
several of us were concerned about was due process," said John A. Gordon,
a retired Air Force general and former deputy C.I.A. director who served as
both the senior counterterrorism official and homeland security adviser on
President Bush's National Security Council staff. "There was great concern
that we were setting up a process that was contrary to our own ideals."
An
Aggressive Approach
The
administration's legal approach to terrorism began to emerge in the first
turbulent days after Sept. 11, as the officials in charge of key agencies
exhorted their aides to confront Al Qaeda's threat with bold imagination.
"Legally,
the watchword became 'forward-leaning,' '' said a former associate White House
counsel, Bradford Berenson, "by which everybody meant: 'We want to be
aggressive. We want to take risks.' ''
That
challenge resounded among young lawyers who were settling into important posts
at the White House, the Justice Department and other agencies. Many of them
were members of the Federalist Society, a conservative legal fraternity. Some
had clerked for Supreme Court justices, Clarence Thomas and Antonin Scalia in
particular. A striking
number had
clerked for a prominent Reagan appointee, Lawrence H. Silberman of the United
States Court of Appeals for the District of Columbia Circuit.
One young
lawyer recalled looking around the room during a meeting with Attorney General
John Ashcroft. "Of 10 people, 7 of us were former Silberman clerks,"
he said.
Mr.
Berenson, then 36, had been consumed with the nomination of federal judges
until he was suddenly reassigned to terrorism issues and thrown into intense,
15-hour workdays, filled with competing urgencies and intermittent new alerts.
"All of
a sudden, the curtain was lifted on this incredibly frightening world," he
said. "You were spending every day looking at the dossiers of the world's
leading terrorists. There was a palpable sense of threat."
As generals
prepared for war in Afghanistan, lawyers scrambled to understand how the new
campaign against terrorism could be waged within the confines of old laws.
Mr. Flanigan
was at the center of the administration's legal counteroffensive. A personable,
soft-spoken father of 14 children, his easy manner sometimes belied the force
of his beliefs. He had arrived at the White House after distinguishing himself
as an agile legal thinker and a Republican stalwart: During the Clinton
scandals, he defended the independent counsel, Kenneth W. Starr, saying he had
conducted his investigation "in a moderate and appropriate fashion."
In 2000, he played an important role on the Bush campaign's legal team in the
Florida recount.
In the days
after the Sept. 11 attacks, Mr. Flanigan sought advice from the Justice
Department's Office of Legal Counsel on "the legality of the use of
military force to prevent or deter terrorist activity inside the United
States,'' according to a previously undisclosed department memorandum that was
reviewed by The New York Times.
The 20-page
response came from John C. Yoo, a 34-year-old Bush appointee with a glittering
résumé and a reputation as perhaps the most intellectually aggressive among a
small group of legal scholars who had challenged what they saw as the United
States' excessive deference to international law. On Sept. 21, 2001, Mr. Yoo
wrote that the question was how the Constitution's Fourth Amendment rights
against unreasonable search and seizure might apply if the military used
"deadly force in a manner that endangered the lives of United States
citizens."
Mr. Yoo
listed an inventory of possible operations: shooting down a civilian airliner
hijacked by terrorists; setting up military checkpoints inside an American
city; employing surveillance methods more sophisticated than those available to
law enforcement; or using military forces "to raid or attack dwellings
where terrorists were thought to be, despite risks that third parties could be
killed or injured by exchanges of fire."
Mr. Yoo
noted that those actions could raise constitutional issues, but said that in
the face of devastating terrorist attacks, "the government may be
justified in taking measures which in less troubled conditions could be seen as
infringements of individual liberties." If the president decided the
threat justified deploying the military inside the country, he
wrote, then
"we think that the Fourth Amendment should be no more relevant than it
would be in cases of invasion or insurrection."
The prospect
of such military action at home was mostly hypothetical at that point, but with
the government taking the fight against terrorism to Afghanistan and elsewhere
around the world, lawyers in the administration took the same "forward-leaning"
approach to making plans for the terrorists they thought would be captured.
The idea of
using military commissions to try suspected terrorists first came to Mr.
Flanigan, he said, in a phone call a couple of days after the attacks from William
P. Barr, the former attorney general under whom Mr. Flanigan had served as head
of the Justice Department's Office of Legal Counsel during the first Bush
administration.
Mr. Barr had
first suggested the use of military tribunals a decade before, to try suspects
in the bombing of Pan Am Flight 103 over Lockerbie, Scotland. Although the idea
made little headway at the time, Mr. Barr said he reminded Mr. Flanigan that
the Legal Counsel's Office had done considerable research on the question. Mr.
Flanigan had an aide call for the files.
"I
thought it was a great idea," he recalled.
Military
commissions, he thought, would give the government wide latitude to hold,
interrogate and prosecute the sort of suspects who might be silenced by lawyers
in criminal courts. They would also put the control over prosecutions squarely
in the hands of the president.
The same
ideas were taking hold in the office of Vice President Cheney, championed by
his 44-year-old counsel, David S. Addington. At the time, Mr. Addington, a
longtime Cheney aide with an indistinct portfolio and no real staff, was not
well-known even in the government. But he would become legendary as a
voraciously hard-working official with strongly conservative views, an
unusually sharp pen and wide influence over military, intelligence and other
matters. In a matter of months, he would make a mark as one of the most
important architects of the administration's legal strategy against foreign
terrorism.
Beyond the
prosecutorial benefits of military commissions, the two lawyers saw a less
tangible, but perhaps equally important advantage. "From a political
standpoint," Mr. Flanigan said, "it communicated the message that we
were at war, that this was not going to be business as usual."
Changing the
Rules
In fact, very little about how the tribunal
policy came about resembled business as usual. For half a century, since the
end of World War II, most major national-security initiatives had been forged
through interagency debate. But some senior Bush administration officials felt
that process placed undue power in the hands of cautious, slow-moving foreign
policy bureaucrats. The sense of urgency after Sept. 11 brought that attitude
to
the surface.
Little more
than a week after the attacks, officials said, the White House counsel, Alberto
F. Gonzales, set up an interagency group to draw up options for prosecuting
terrorists. They came together with high expectations.
"We
were going to go after the people responsible for the attacks, and the
operating assumption was that we would capture a significant number of Al Qaeda
operatives," said Pierre-Richard Prosper, the State Department official
assigned to lead the group. "We were thinking hundreds."
Mr. Prosper,
then 37, had just been sworn in as the department's ambassador-at-large for war
crimes issues. As a prosecutor, he had taken on street gangs and drug Mafias
and had won the first genocide conviction before the International Criminal
Tribunal for Rwanda. Even so, some administration lawyers eyed him suspiciously
- as more diplomat than crime-fighter.
Mr. Gonzales
had made it clear that he wanted Mr. Prosper's group to put forward military
commissions as a viable option, officials said. The group laid out three others
- criminal trials, military courts-martial and tribunals with both civilian and
military members, like those used for Nazi war criminals at Nuremberg.
Representatives
of the Justice Department's criminal division, which had prosecuted a string of
Qaeda defendants in federal district court over the previous decade, argued
that the federal courts could do the job again. The option of toughening
criminal laws or adapting the courts, as several European countries had done,
was discussed, but only briefly, two officials said.
"The
towers were still smoking, literally," Mr. Prosper said. "I remember
asking: Can the federal courts in New York handle this? It wasn't a legal
question so much as it was logistical. You had 300 Al Qaeda members, potentially.
And did we want to put the judges and juries in harm's way?"
Lawyers at
the White House saw criminal courts as a minefield, several officials said.
Much of the
evidence against terror suspects would be classified intelligence that would be
difficult to air in court or too sketchy to meet federal standards, the lawyers
warned. Another issue was security: Was it safe to try Osama bin Laden in
Manhattan, where he was facing federal charges for the 1998 bombings of
American Embassies in East
Africa?
Then there
was a tactical question. To act pre-emptively against Al Qaeda, the authorities
would need information that defense lawyers and due-process rules might
discourage suspects from giving up.
Mr. Flanigan
framed the choice starkly: "Are we going to go with a system that is
really guaranteed to prevent us from getting information in every case or are
we going to go another route?"
Military
commissions had no statutory rules of their own. In past American wars, when
such tribunals had been used to carry out battlefield justice against spies,
saboteurs and others accused of violating the laws of war, they had generally
hewed to prevailing standards of military justice. But the advocates for
commissions in the Bush administration saw no reason they could not adapt the
rules, officials said. Standards of proof could be lowered. Secrecy provisions
could be expanded. The death penalty could
be more
liberally applied.
But some
members of the interagency group saw it as more complicated. Terrorism had not
been clearly established as a war crime under international law. Writing new
law for a military tribunal might end up being more difficult than prosecuting
terrorism cases in existing courts.
By late October 2001, the White House lawyers had grown impatient with what they saw as the dithering of