Issue 319
January 14, 2005
v R. v. Howe (Ont. C.A.) January 11, 2005
v The Advocate by Victoria Bonilla-Argudo as told to Mark Pothier
v Central Figure in Iraq Abuse Goes on Trial by Kate Zernike
v Mississippi Yearning by Paul Hendrickson
v No justice for Sudan by Leslie Lefkow
v ‘Still a Long Ways from Justice’ by Josh Getlin and Elizabeth Mehren
v
Prosecutors want courtroom open during Jackson
hearings - Associated Press
*******
The Appellant was convicted of four counts of various assaults with respect to his former girlfriend. He appealed the convictions, arguing that the trial judge made errors in his approach to assessing the complainant’s credibility as well as the appellant’s credibility.
The Appellant was involved in a volatile relationship with the complainant for nearly two years. The complainant alleged that the assaults took place throughout the course of the relationship, however she did not report these assaults to the police while she was still involved in the relationship. A month following the break-up of the relationship, the complainant went to the police and made the allegations against the Appellant.
At trial, the Appellant took the stand and told the Court that following the break-up the complainant was very angry at the Appellant and threatened to get back at him. The Appellant’s aunt also testified at trial and described a number incidents involving the complainant which led the aunt eventually to obtaining a restraining order against the complainant. The aunt testified about repeated telephone calls and angry visits from the complainant during which the complainant intimated that she could get the Appellant in a lot of trouble because he was on probation.
The Court of Appeal held that, despite the careful and detailed reasons given by the trial judge, the trial judge failed to come to grips with an important inconsistency in his own analysis of whether the complainant had a motive to fabricate the allegations against the appellant. Justice Doherty, writing for the Court of Appeal, held that this error in the trial judge’s reasons ‘irreparably damages the trial judge’s finding that Ms. Kane (the complainant) was not only credible, but that he evidence alone was sufficiently cogent to prove guilt beyond a reasonable doubt on some counts.”
In one portion of his judgment the trial judge held that the complainant had no motive to fabricate her allegations against the defendant because, as she testified, all she wanted once she had broken up with him, was to be left alone. In another portion of his judgment, the trial judge held that the evidence called by the defence could establish a motive to falsely accuse the appellant. The trial judge’s failure to recognize and reconcile the apparent inconsistency between these findings led the Court of Appeal to hold that the trial judge’s failure to factor in the motive into the ultimate assessment of the complainant’s credibility resulted in a miscarriage of justice.
The Court of Appeal also found that the trial judge failed to give any effect to his finding that the complainant had lied on material matters during her evidence. The Appellant submitted that the trial judge applied a higher standard of scrutiny in his assessment of the appellant’s evidence and credibility than he did when considering the evidence and credibility of the complainant. Justice Doherty expressed the difficulties of making such an argument on appeal:
“This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed I this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.”
The trial judge found that significant parts of the complainant’s evidence were untrue. The Court of Appeal held that the trial judge ought to have factored this into his assessment of the complainant’s credibility.
The Court of Appeal concluded that the Appellant was convicted as a result of a seriously flawed analysis of the credibility of his accuser. The Court of Appeal quashed the convictions and directed a new trial.
******
The
following article appeared on boston.com on January 9, 2005:
The
Advocate
There are
roughly 2,600 private attorneys in Massachusetts who accept court appointments
to represent indigent defendants. Last year, some of the attorneys, known as
bar advocates, refused appointments in protest of the $30 to $54 hourly rates
the state paid for their services. The crisis prompted the state's Supreme
Judicial Court to order the release of defendants who did not receive
representation within seven days. Governor Mitt Romney has since signed
legislation that raised bar advocates' pay by $7.50 an hour, a rate that still
ranks as one of the lowest in the nation.
Victoria Bonilla-Argudo, 47, a partner in the Boston law firm Bourbeau
& Bonilla, is married with two children and lives in Milford. She has been
a lawyer for 13 years and as a bar advocate has represented hundreds of
clients, most of them accused of robbery, assault, and dealing drugs. This is
her story.
By Victoria
Bonilla-Argudo as told to Mark Pothier
Sometimes
court is like Monty Python and the Holy Grail. I'm the Black Knight in the
scene where King Arthur and his companion, Patsy, are riding imaginary horses, clopping
coconuts to imitate the sound of hoofs. They encounter the knight at a bridge,
and he says, "None shall pass." A fight starts, and the Black Knight
gets one arm chopped off, then the other. "Just a flesh wound," he
insists. There is more fighting, and, one by one, his legs are cut off.
Finally, there's nothing left but a stump of a knight. Arthur starts to cross
the bridge, but the knight says, "Running away, eh? You yellow bastard.
Come back here and take what's coming to you. I'll bite your legs off!"
That's an
appointed criminal-defense attorney. That's what we do.
It is about
when you're in front of a judge thinking, "What next? What now?"
You've got this person at your side, quaking. You're the only thing between the
person and prison. Your defense is used up, you've done everything you can, but
you look up at the judge and try to find some redeeming quality in your client,
something to say on the chance it will prevent the judge from ruling the way
you know he's thinking. You keep fighting, like the Black Knight.
I get angry
when other attorneys or judges say a publicly appointed attorney doesn't do a
good job because he or she is not making money. I work the same way - hard -
whether it's an appointed or private case.
In a single
day, there can be 30 or 40 arraignments in Boston Municipal Court. There are
usually other bar advocates, and we divvy up the list: These 10 are yours,
those 10 are mine, and so on. No matter how serious the cases, we split them
arbitrarily. A division of the goods.
Then I meet
them, my people, in the holding cells, where it stinks to high heaven, where
everybody who was arrested on Friday hasn't seen a shower, and it's Monday.
Their breath can blow you away. I put on my biggest smile and say something
like "Hey, Michael Jackson, today's your lucky day! You're on my
list." They look at me as if to say, "Oh, my God, what is happening?
I have a crazy woman for an attorney." Sometimes the humor helps.
People are
yelling, it's crowded, and there's no privacy. "Look, I can't talk about
your case right now," I say. "We're going to the courtroom for
arraignment. The charges will be read, and we're going to enter a not-guilty
plea, OK? Tell me what good things I can say about you so the judge will
release you from this hellhole." Then I start asking questions: "How
far did you go in school? Are you employed? Do you have mental-health issues?
Do you need detox?"
But they
often don't get out on bail, and I leave frustrated, especially when it's a
repeat offender. "If you're selling drugs, you're obviously not doing a
good job, because you keep getting caught," I tell them. "Don't you
think it's time to consider a new profession?"
Most of the
people I represent are young - kids, really - trying to make a quick buck. They
want a nice car or motorcycle, and the money they make legally barely covers
rent, food, and a dumpy car. So they deal. I look at them and think, 21 years
old, my daughter's age, how could you be in so much trouble?
I'm the only
person they can talk to. Sometimes their own families won't acknowledge them.
They put a block on their phones so they don't get collect calls from jail. My
clients usually don't ask me to communicate with their families or friends.
They just want to know what's going on with their cases: "What are you
doing for me?" They call some of us "public pretenders."
On Sundays,
I visit my clients at the county jail. It's like being between two worlds. But
I get to go home afterward. I get to barbecue if I want to; they get a bologna
sandwich for lunch. It's painful when they say things like "It looks like
it's a nice day outside. Is it?"
"Yes,"
I tell them, "it is lovely. I'll enjoy it for you."
Many want to
know about me, who I am, and they'll ask around to find out. Word of mouth
counts for a lot in prison. When I leave, I tell myself, "Well, time to go
have some fun now." It would be too difficult otherwise.
The most a
counsel can bill the state for is 10 hours a day. But something involved, like
a murder case, becomes all-consuming, which means we have to request more time
and money from the Committee for Public Counsel Services [a 15-member state
panel that appoints bar advocates to 240,000 cases annually and salaried state
public defenders to 9,000 cases annually]. We can charge for time spent
preparing, interviewing people,
and meeting clients. But we can bill for only one hour of in-court
waiting time, up to a maximum of three hours if we have three or more clients.
It doesn't matter if we sit there all day. Sometimes I arrive at 9 o'clock,
wait until lunch, and get told to come back at 2. It's a waste.
At the
federal level, the pay is $90 an hour, but up until recently, the maximum was
$5,200 a case. Nothing gets done for that amount in federal court. The typical
dealer I see in those cases has been under investigation for about two years.
That means there's a lot of evidence, and I have to go through every single
piece. A case can have 30,000 or
40,000 pages of documents, boxes and boxes. An experienced private
attorney might charge $200 to $400 an hour for that kind of work. You could
hire a kid fresh out of law school and pay $50 or $100 an hour. But my people
can't come close to affording even that. To be paid more, we have to write a
detailed explanation to the judge. It doesn't always work.
The
$37.50-an-hour we now get paid in district court seems like a lot to most
people, because they don't make that much. But someone employed by a company
and earning $40,000 a year probably also receives benefits like vacation time
and health insurance. Bar advocates don't get any of that, and many of them
rely heavily on appointed work for their income, because it can take years to
build a private client base, especially in Boston.
You have to
first become known by other attorneys, judges, and prosecutors. There is a lot
of competition.
And at
$37.50 for the current fiscal year, the most a bar advocate can bill annually
is $69,375, because the law limits us to 1,850 hours [about 46 40-hour
workweeks]. From that, they need to rent office space, and the cheapest I've
seen in the city is about $800 a month, so that's $9,600 gone. Then it's $18 to
$20 an hour for legal secretarial help. Lawyers need cards, paper, pens, and
phones, and they have to take endless collect calls from jail.
Sometimes
young attorneys who accept appointments need to work as waiters or waitresses
at night. If the state cannot afford to adequately pay them, it should offer
something else in exchange, such as health care. I understand why some have
refused cases, because I've thought of doing it myself. I get so frustrated. I
know many fabulous attorneys who are doing this work. They make the system run
smoothly, and that has value, that deserves more appreciation.
A criminal-defense
attorney has the duty to be the voice of the individuals he or she represents.
They ensure that there's due process. If a client says, "I don't want a
public attorney," I say, "Fine, go tell the judge you don't want me.
I don't have time for you, either. Bye-bye. But if you want me to stay, you
will get excellent representation. Better than most. And you should be grateful
that there are all these attorneys willing to be appointed who would be locked
up themselves before they would screw you over."
Appointed
cases consume most of my time these days. When I was starting out, I did some
personal-injury work, but I didn't like the clients. They would have a fender
bender and come in looking for money. I'd think, you've got to be kidding me!
You want what? I wound up shooing away business. I wanted serious cases:
someone rolling into my office in a wheelchair. The people involved in minor
accidents needed a chiropractor or a masseuse; they didn't need me.
I often get
asked, "How can you represent someone accused of a horrible crime?"
The answer is I can. I must. It's probably the most exciting work anyone can
do; the stakes are so high. I have to provide critical guidance. Do you want a
trial? Do you want to plea?
Being able
to make a person understand the true consequences of his actions isn't always
easy. Like the 17-year-old boy I represented who was charged with eight counts
of rape and indecent assault and battery: At first, he didn't understand he
could receive a life sentence. I tried to treat him as a mother would, but at
the same time I had to be firm: "These are the charges, this is what could
happen to you, and we need to do a lot of talking."
He said,
"I didn't do it," which is not what everyone tells me. Some admit
their guilt right away: "Please," they ask, "can you help me out
here?"
Maybe I'm a
fool, but when someone tells me he's innocent, I take him at his word. I
believe in the presumption of innocence, but I know that innocence is not
enough. I tell clients, "This is the evidence, this is what the
prosecution is going to introduce. How do we fight it?"
In the rape
case, thank God for mothers who keep calendars. This one wrote down everything
her son did like his schedules for hockey and music lessons and the date of a
family vacation so we were able to prove he couldn't have committed the rapes.
He had a supportive family, which is unusual, and they were all there for him
in court. When the verdicts came in, we began crying. By the eighth "not
guilty," there weren't any tears
left.
A lot of
people get caught in a situation in a moment in time. Some people who do
horrible things are not horrible people. They can lack the capacity to make
good decisions. Or a bright individual makes a stupid decision. They can't find
a job, they can't pay their bills, they're basically reduced to the level of a
street peddler. So they start asking for money. One day, they might get angry when they don't get it from you.
They say, "Give me a dollar"
and grab you in the process. That's all it takes to make them a violent
offender.
I think
about the victims, too. I treat them and their families with the utmost
dignity, all the respect I can muster. That does not mean I won't question what
they say on the stand, but I do it politely. It's never easy.
I've also
represented people who live in their own worlds. Five or six years ago, a
woman, about 37 years old, was brought into court because she had bitten
someone. I went to the holding cell to introduce myself. She was dancing. Maybe she's just happy, I
thought. She looked at me and said, "You told me you were going to take me
to dinner. Why didn't you?"
"When
did I say that?" I asked.
"Last
night."
"I must
have been really busy," I told her. "I totally forgot."
She was sent
to the Erich Lindemann Mental Health Center in Boston for evaluation. In the
end, it was a matter of her being treated, staying on the proper medication,
and getting into a group home. She was not a criminal.
Growing up
in Puerto Rico, I never faced disparity. My father was a neurologist, and we
were an upper-middle-class family. I had a beautiful upbringing, like a
princess. In Puerto Rico, the population is mostly mulatto, a mix of black and
white and what was left of the Indians after the Spaniards were done with them.
Differences among people were more
about money and class than race. Even as long ago as the 1960s, you
could go to a country club, and there would be people of all colors there. Discrimination based on skin color, that's
something I learned when I came here.
In 1966, my
father took us from Mayaguez, on the west coast of Puerto Rico, to Richmond,
Virginia, where he was offered a residency at the VA medical center. I was 9
and didn't speak English, but if you wanted to play, you had to talk, so I
learned. One day my father invited to dinner a black Puerto Rican nurse who was
working at the hospital. The next morning, there was a note in our mailbox. It
was not written as politely as this, but the message was: We tolerate you
because you look white; we don't tolerate people of color.
My mother,
who is a little spitfire with great big eyes, was terrified. We all were.
When my
father's residency was finished, he wanted us to stay in the States so he could
work off his loans, but my mother had made up her mind.
"No,"
she said, "we will pay every single penny we owe, but we're leaving immediately."
Eventually,
I returned to the United States, and in 1991 I graduated from Boston College
Law School. That's when I met my current law partner, Michael Bourbeau. Like
any law student new in the world, I was doing research, mostly property
studies. I knew that wasn't going to be for me, although I didn't have to visit
jail cells like I do now, and everybody smelled better. Some of the work
involved housing cases, and I became
interested
in representing tenants, because they were the underdogs (though some can be
the kiss of death for a landlord).
That led to
more serious things. Michael did criminal-defense work, and I started making
appearances on his behalf. I could have eventually made a lot of money working
exclusively in private practice as a criminal-defense attorney, but I was going
down a different path. I knew it then, and I live it now. My mother sometimes
says, "Vicky, you have the taste for champagne, but with the money to buy
beer."
For me, it
seemed natural to gravitate toward defending indigents. And because I speak
Spanish, it's easy for me to communicate with Spanish-speaking people in
trouble. I tended then, as I do today, to represent a lot of Hispanics. The
government and judges sometimes try to shift the burden of proof to the
defendants, especially minority
defendants who don't know the system. I'm supposed to do my job well, and
I say the same thing to prosecutors and police do your job, and more likely
than not you will get a conviction. But if you're cutting corners and doing
something dirty on my watch, you will lose.
There are
times when good comes from all the bad I see. Like the story of the Mexican
gentleman, about 44 years old, who was paid to drive marijuana from Phoenix to
Boston. It wasn't a lot of drugs, but he was sentenced to 15 1/2 years in
federal prison. Since 1998, he had been fighting to correct the sentence.
Somehow, on his own, he managed to reopen the case. Authorities brought him
back to Boston about a year ago, and I was assigned to his case as a federal court-appointed attorney.
I reviewed the paperwork, and he was right: The sentence was wrong. We eventually
got it reduced to eight years, which he is serving in Phoenix. Then he'll be
deported. After the case was resolved, he wrote me a letter in Spanish from
jail:
"Today
the [federal] agents came for me. . . . I take with me a very, very nice memory
of you. I am a person without studies, a bit shy, and that's maybe why it was
hard for me to make myself understood by you. But the criminals, or whatever
you wish to call us, we throw the ball and hide the hand, meaning we do things
that are not acceptable and that we don't want to accept that we've done.
"And
even though you may not believe it, I am thankful to God [for] having met you,
and [for] knowing that there are still people out there in this world that will
help others. . . . I am going to Phoenix and from there to Mexico, to my
beautiful Mexico. The only thing that is left is that I am very happy with the
work you did for me, and if there is ever a way I can repay, it will be with my
heart in my hand."
Not all
cases end that way, and I get really sad when I think I've screwed up. I start
second-guessing myself. It happens instinctively. "Damn, why did I say
that in court? I could have phrased it some other way."
Other times,
it is out of my control. My partner and I once defended someone accused of
beating another man to death; drugs were involved. The accused had a
partial-alibi defense, meaning there were lapses in time that were not
accounted for. As the trial went on, he degenerated, emotionally and
physically.
Usually, a
client sits straight in his chair and is alert, writes notes, participates in
his defense, and doesn't miss a beat. In this case, he became sadder each day,
more unkempt. I had no idea whether he committed the crime; I was there to
advise him on how I thought the evidence would play out. But there wasn't much
to work with, and as I watched this young man, maybe 21 years old, shut down,
there was nothing I could do. He knew what was coming. When the verdict was
read, it was the most horrible feeling. It was draining. After a case like that,
it takes a while to get your bearings back. If I ever become so jaded that I
can look at a client and think, "Another idiot, get him out of here,"
then it will be time to move on. There are attorneys who do.
But most of
the time, I still feel the way I did during my first criminal case as lead
attorney, in 1996. A 15-year-old boy charged with stabbing another teenager was
facing 20 years in prison. The courtroom had dark wood and high ceilings, the
kind of space that makes you feel like polishing your shoes before walking in.
It was special, not like the dingy,
plastic courtrooms we have today. I can still remember the jury walking in
after deliberating. One juror looked at us and smiled. I thought, "This is
going to be all right, I know it."
Afterward, I
grabbed the hands of my client and his mother and led them out. As soon as the
double doors with glass closed behind us, I let out a loud "Yes!"
Everyone inside the courtroom was laughing, but I didn't care. Even today, I
cannot help but bond, I cannot help but get emotionally involved.
People
believe it can't happen to them, that they won't ever need me or one of my
colleagues. Maybe so, but to them I say, go to the Holocaust memorial in
Boston. At the last stone there is the verse by Martin Niemoller that says,
"They came for the Jews and I didn't speak up because I wasn't a
Jew," and ends, "Then they came for me and by that time there was no
one left to speak up."
Every time
the government seizes a piece of someone's liberty, we get closer to that
moment. Every time it gains a little more in privacy issues, we lose. Everyone,
even judges and prosecutors, must remember that. I'm the person whose job it is
to say, "Wait a minute, your honor. Before you put this person in jail,
you need a body like me to stand here and defend his rights."
And we do.
We all do.
Mark Pothier, a member of the Globe staff, wrote this article
using notes and transcripts from a series of interviews with Victoria
Bonilla-Argudo. He can be reached at mpothier@globe.com.
* * * * *
The following article appeared on nytimes.com on January
11, 2005:
Central
Figure in Iraq Abuse Goes on Trial
by Kate
Zernike
FORT HOOD, Tex., Jan. 10 -
Prosecutors unveiled new graphic photographs and videos from Abu Ghraib prison
on Monday as they tried to portray the soldier accused as the ringleader of the
abuse scandal there as a sadistic thug who punched detainees for sport, posed
smiling next to the bloody face of a detainee and bragged about forcing an
Iraqi woman to let him photograph her naked.
In opening arguments here at
the court-martial for the soldier, Specialist Charles A. Graner Jr., his
lawyers insisted that he was simply following orders and using lessons from his
civilian life as a prison guard to try to maintain discipline in a war zone.
Using naked and hooded detainees to make a human pyramid was much like what
cheerleaders "all over America" do at football games, the lawyer, Guy
Womack, argued, and putting naked prisoners on leashes was much like what
parents in airports do with their toddlers.
"They're not being
abused," Mr. Womack told the jury of 10 soldiers, "they're being kept
in control."
But prosecutors called soldiers
who testified that Specialist Graner had laughed and joked as detainees moaned,
screamed and begged him to stop beating them.
A source close to the case said
prosecutors had discovered more than 2,000 e-mail messages that Specialist
Graner had sent home, sometimes attaching pictures of detainees and boasting
about how he had disciplined them, suggesting one had been "a real upper
body workout." In none of those e-mail messages did he mention being
ordered to commit any of the abusive acts, the source said.
The prosecutor, Maj. Michael
Holley, said, "There was a lot wrong at Abu Ghraib," adding,
"There were training problems, there were logistics problems, there were
certainly leadership problems."
Still, Major Holley told the jury,
"What we're presenting to you is the serious misconduct that anyone would
say, 'That's illegal, that's beyond the pale, there's no way anyone would say
that's right.' "
Specialist Graner, a 36-year-old
reservist from the 372nd Military Police Company based in Maryland, faces up to
17 and a half years in prison on several counts of assault, maltreatment,
dereliction of duty and indecent acts stemming from the scandal that broke last
spring with the publication of humiliating photographs of detainees. The
scandal set off high-level military investigations that have exposed a wider
range of mistreatment of detainees in Afghanistan, Iraq and at Guantánamo Bay,
Cuba. But the question of who authorized such treatment remains largely
unanswered.
Witnesses here testified that commanders and military
intelligence soldiers had authorized harsh treatment like keeping detainees
chained to railings all night to force them to stay awake. Pvt. Ivan L. Frederick
II, one of four soldiers who has accepted a plea agreement in the Abu Ghraib
case, testified that he asked military police from the unit the 372nd replaced
why detainees were naked and handcuffed, or wearing women's underwear on their
heads. He said he was told that it was the way things were done.
Even Specialist Graner asked
superiors whether it was right to handcuff detainees to a railing to keep them
awake, Private Frederick testified. But the military police were told that if
military intelligence asked for "sleep management," it was fine, he
said. Describing instructions for sleep management from one military
intelligence soldier, Private Frederick testified: "He told me, 'I don't
care what you do, just don't kill him.' "
Still, Private Frederick and other
soldiers testified, commanders did not know about the kind of treatment shown
in the photographs and would not have sanctioned it.
Several soldiers described their
alarm as they watched the abuse unfold, particularly on one evening that began
with several soldiers running and jumping into a pile of detainees.
"It made me kind of sick,
almost; I didn't know what to do," said one, Specialist Matthew Wisdom,
who has not been charged. "It just didn't seem right."
Describing how Specialist Graner
punched a detainee in the temple so hard that it knocked him unconscious,
Specialist Wisdom said, "If I was that detainee, I know that would have
been very painful."
Photographs of detainees being
mistreated were shown on a large screen in the courtroom, occasionally
remaining for several minutes as witnesses narrated them.
"He walked over to the
detainee that had 'I'm a rapist' written on his leg and punched the detainee in
the temple, sir," Pvt. Jeremy Sivits, who is serving a year in prison for
taking photographs of the abuse, testified about Specialist Graner. "And
then he kind of shook his hand and said, 'Ow. Damn, that hurt.' "
Private Sivits said the detainees
had not posed any threat. "The detainee just kind of shook and lay there
on the floor," he said. "He just kind of moved his feet and lay
there."
Explaining a new video that shows
a detainee writhing as Private Sivits tries to cut off a pair of handcuffs, he
said Specialist Graner had attached them so tightly, the detainee's hands were
turning purple. "I personally thought he was going to lose his
hands," he said.
Another new photograph taken by
Specialist Graner showed a 19-year-old Iraqi woman exposing her breasts.
Private Sivits said that Specialist Graner said he had tried to photograph her
pubic area but that she would not let him.
Asked to explain photos of
detainees masturbating, Private Frederick said Specialist Graner "said it
was a present for our birthday." Soldiers also said commanders explicitly
told them not to take photographs.
Mr. Womack, Specialist Graner's
lawyer, said that the photos were part of a plan to force information from
detainees and that government officials blamed his client only after the
pictures set off outrage around the world.
Over and over, he said, military
intelligence complimented Specialist Graner. "The M.I.'s and other folks
came to him and said, 'You're doing a great job, keep it up,' " Mr. Womack
said. The jury, all men, listened intently to the testimony. Specialist Graner
betrayed little emotion inside the courtroom but smiled and joked outside.
Walking in Monday morning, he told reporters: "We're going to find out
what kind of a monster I am today."
* * * * *
The
following article appeared on nytimes.com on January 10, 2005:
Mississippi
Yearning
by Paul
Hendrickson
THIS little light of mine," is what I've been thinking and
humming these last few days, since the news rolled out of Philadelphia, Miss.
Those words are the start of an old, honored Negro spiritual. In the civil
rights 60's, the song was one of the anthems hymned from flatbeds and
courthouse steps during voter registration drives.
Now, there is another start:
Mississippi has brought its first-ever murder charges in a long-ago crime
against three young men whose names are still mythical in America: Schwerner,
Goodman, Chaney. It is a very late start, but it is a start all the same, a
cause for uplift, it seems to me, for singing.
In a way, it's this little light
of theirs. I refer here not so much to Michael Schwerner, Andrew Goodman or
James Chaney, who are martyrs and heroes. Rather, I have in mind some people
who have never been large in number, and whose names aren't mythical in
America, but who have long believed and worked toward the idea that, someday,
justice would pour down like waters in their own home state. Yes, they are
Mississippians: journalists, lawyers, activists, librarians, citizens. Through
these years of justice delayed, theirs has amounted to a kind of coalition of
hope and belief.
What I have come to learn about
Mississippi is that everything there is always changing. And in another way,
nothing there ever changes at all.
I am convinced that this case
would not have been reopened, would not have come to light again without, for
instance, the efforts of the Philadelphia Coalition (a multiracial organization
that has urged the attorney general of Mississippi to prosecute cases from the
60's); without, for instance, enterprising work by reporters at The
Clarion-Ledger of Jackson, Miss. During the civil rights era, The
Clarion-Ledger practically led the state in its racist screeds against blacks,
against the "agitators."
Schwerner, Goodman, Chaney: their
lives ended on a summer night on a stretch of rural road outside a town whose
name means brotherly love. A gang of men, some of whom were both Klan and local
law, made the three of them get out of a blue Ford station wagon. "Are you
that nigger-lover?" 24-year-old Mickey Schwerner of Pelham, N.Y., is said
to have been asked. According to informers, he is said to have replied, as his
voice and knees began to give, as one of the killer's hands rested lightly on
his shoulder: "Sir, I know just how you feel." It was June 21, 1964.
Last Thursday, in Philadelphia,
seat of Neshoba County, another moment in time: a grand jury indicted Edgar Ray
Killen, 79, as a participant in those slayings. On Friday, Mr. Killen was
arraigned - and pleaded not guilty - in the Neshoba County Courthouse. There
may be other arrests and indictments forthcoming.
I have been to Philadelphia and to
other Mississippi places. I have gone as a reporter, always the outsider. I
suppose you could say all I wanted to know was this: What became of the people
who did such things? Did they ever suffer shame? What moral calculations did
they have to make just to get through a day?
In 1967, 18 Klansmen were
prosecuted by the federal government on charges of "a conspiracy to
violate the civil rights" of Schwerner, Goodman and Chaney. Seven were
convicted. None served more than six years. Edgar Ray Killen, who preaches the
word of God, was let go after a deadlock in his federal trial by an all-white
jury. Mississippi itself never brought a single charge in the murders of the
three slain men.
In the summer of 1984, on the 20th
anniversary of the murders, I walked into a jewelry store on the Philadelphia
town square, and there was Cecil R. Price, fixing watches. In 1964, he was the
deputy sheriff of Neshoba, fond of chaw and cowboy hats and short-sleeved
khaki. Price, who is dead now, served four years in a federal penitentiary in
the north after being convicted of violating the civil rights of the victims
for his role in the killings. And then he came on home, as they all had pretty
much come on home.
He was standing behind the counter
at City Jewelry. He waved as I entered. He had a beard and a big stomach. A
magnifying glass was banded to his wide brow. I stuck out my hand and he took
it. I later described this for my newspaper.
"Howdy, can I help ya?"
he said. I told him what I was doing there: working on an article. In the way
that water can turn to ice, he said: "Nope," adding that there was
"nothing to say about that." He was already back to his jeweler's
loupe. "Talk to some others. And do us a good job, hear?" As I turned
to go, one of his buddies sidled in. "Well, Cee-cilll!" he cried from
the doorway.
But this was four decades ago.
Justice may now be pouring down at last. So let it shine, let it shine, this
little light of theirs, those who have kept witness.
Paul Hendrickson, a former reporter for The
Washington Post, is the author of "Sons of Mississippi: A Story of Race
and Its Legacy."
* * * * *
The
following article appeared on guardianunlimited.com on January 10, 2005:
No
justice for Sudan
The deal
ending 20 years of war will not bring those guilty of genocide to account,
writes Leslie Lefkow
Yesterday's signing in Nairobi of the
Naivasha Protocols was a historic moment. The Naivasha agreement, ending two
decades of war in southern Sudan, was three years in the making. Until the last
moment, a final peace deal remained uncertain.
In many respects, the agreement is to be
welcomed. The north-south war produced some of the world's worst disaster
statistics: 2 million dead and 4 million driven out of their homes, almost one
in five of the entire Sudanese population.
There is, however, an important flaw in
the deal. Under the terms of the Naivasha agreement, senior members of the
Sudanese government responsible for heinous policies and abuses in southern Sudan
get off scot-free.
There are no provisions for any kind of
justice mechanism in the north-south peace accord-no truth commission or
compensation for the many victims.
This key failure of the Naivasha
negotiations has had important knock-on effects. The lack of accountability has
contributed to the repeat strategy of appalling abuses that the world has
witnessed in Darfur, in western Sudan, in the last two years. It is the same
government, after all, and many of the same officials crafted the brutal
policies used in both Darfur and the south.
The tactics have been strikingly
similar, including a devastating scorched-earth campaign, with ethnic militias
attacking on the ground supported by government forces bombing from the air.
The main difference has been the speed at which the atrocities have been
carried out - and the resulting rate of displacement. While it took almost 20
years to displace millions of people in the south, in Darfur it has taken only
two years to force more than 1.6 million people from their homes. At least
70,000 are reckoned to have died, probably more.
Even as US and other western mediators
pressed government and rebel representatives to finalise a north-south deal in
recent weeks, a government offensive in Darfur continued to drive thousands
from their homes and land. Women leaving camps to collect firewood are raped on
a daily basis. The 1,000 African Union troops stationed in Darfur to monitor a
moribund ceasefire lack the numbers to have any real protective power or deter
abuses.
If this region is to have a more stable
future, it is important that the failings of Naivasha should not be repeated.
Unfortunately for the people of Darfur,
the media and political interest in Darfur peaked several months ago - but
failed to produce the requisite numbers of international troops or political
pressure to force Khartoum to stop its campaign of ethnic cleansing. Government
troops and militia members continue to rape and kill, harass and loot civilians
with impunity. Until now the Sudanese government, adept at divide-and-rule and
manipulation, has successfully evaded accountability for the atrocities it has
committed.
A key difference between Darfur and the
south, however, is the international commission of inquiry, authorised by the
UN security council, which will issue its findings later this month. The
commission is conducting a three-month investigation into serious violations of
international human rights and humanitarian law that have been committed, and
is tasked with identifying perpetrators of crimes with a view to ensuring
accountability. This body offers real hope that those who have led and
implemented the heinous abuses in Darfur will be brought to book.
Given the extent of the crimes and
widespread impunity for the crimes, the security council should act on the
commission's report by referring the situation in Darfur to the international
criminal court. The newly created court has the capacity to prosecute war
crimes, crimes against humanity and genocide.
Since Sudan has not ratified the
requisite treaty, however, the only way Darfur can be investigated by the
international criminal court is through a UN security council referral. A
referral to the court could for the first time persuade political leaders in
Khartoum and Darfur that they could face serious prosecution.
This, in turn, could help prevent more
civilians from losing their homes and livelihoods and spending more months and
years in camps. It would also help to ensure that there is justice for the
horrific crimes committed against the occupants of Darfur's mass graves,
justice that has so far been denied to their fellow Sudanese in the south, but
which will be sorely needed if Darfur is ever to know lasting peace.
· Leslie Lefkow, a researcher with the
Africa division of Human Rights Watch, is the author of Darfur in Flames and
other HRW reports on Darfur, available at hrw.org
* * * * *
The
following article appeared on latimes.com on January 8, 2005:
'Still
a Long Ways From Justice'
An arrest in
the 1964 slayings of civil rights workers brings families new hope and old
pain.
By Josh
Getlin and Elizabeth Mehren
Times Staff
Writers
NEW YORK —
At 11 years old, Ben Chaney lionized his older brother James. He believed he
was immortal. Even when James vanished in Mississippi with fellow civil rights
workers Andrew Goodman and Michael Schwerner, Ben was certain James
would come
home alive.
"Never
until his burial did I believe he could die," Chaney said.
On Friday, a
widow, a brother and a mother spoke with love and pride of the three men who
went to Mississippi to register black voters 40 years ago. When reputed Ku Klux
Klan leader Edgar Ray Killen, 79, pleaded not guilty in their killings, it took
these family members back to an era when the push for equality in the Deep
South often clashed violently with racist hatred.
Ben Chaney,
a 52-year-old paralegal here, said the arrest gave him a small semblance of
hope — a sentiment he termed "barely, partial optimism." But, he
said, "We are still a ong ways from justice."
At her
apartment on the Upper West Side, Carolyn Goodman sat surrounded by pictures of
her son — a portrait of Andrew, photographs taken when he was a young man and
snapshots of him as a child with brothers Jonathan and David. Goodman said
Killen's arrest was good and bad news.
"Good
because there might be some justice," said Goodman, 89. "Bad because
you still don't know what's going to ultimately happen."
In Seattle,
the widow of Michael Schwerner said she thought justice would be served only if
the Killen trial provoked a larger discussion about race.
"Racism
is the elephant in the living room of this country," said Rita Bender, 62.
"And we pretend it does not exist. Until we acknowledge it, until we
acknowledge the past, we are not moving forward."
Ben Chaney
runs a foundation named for his brother and a summer voter-registration program
modeled after the effort that cost James his life. Chaney said he spent much of
Friday morning on the phone with his 83-year-old mother, who lives in New
Jersey. Fannie Chaney kept hoping that Killen would turn state's evidence
against eight others linked to the killings in earlier investigations, her son
said.
"I had
to tell her, 'Mama, they have the evidence against the rest of them, it's
whether or not they are going to use it,' " Chaney said. "It's like
there is a void, because not all of the murderers have been indicted. And I
don't think it is going to be fulfilled with just this prosecution."
Mindful of
the significance of the term, he continued: "This is going to be a
whitewash. They are going to use the most unrepentant racist as the scapegoat,
leave the others alone because they are more powerful, more wealthy and more
influential — and then move on."
Chaney said
the death of his brother "defined and controlled" his life. He
pursued a life in social justice because "the best way to remember my
brother and his companions is to do what they were doing."
The
expectation that no one would ever be called to reckon for the killings weighed
heavily on his family, Chaney said. James Chaney was the sole black victim in
the 1964 killings. Fannie Chaney was a little girl when her uncle was lynched
by the Klan. No one was charged or prosecuted in that killing, leading her to
believe her son's murder would go unpunished as well.
"For 40
years," Ben said, "she thought a prosecution in this case would never
happen, because in Mississippi, you don't prosecute white people for murdering
black people."
While
calling 40 years an "outrageous" period of time to wait for a
possible conviction, he said: "That is the thing about justice. It can
take 100 years, but I believe eventually it catches up with you."
Forty
summers ago, Carolyn Goodman recalled, her son drove down West 86th Street,
past the building she lives in now, and went with friends to Mississippi.
"I
didn't expect he'd never come back, that's for sure," she said. "I
knew he was going into a world of risk. But I also knew that my husband and I
had lived in a world of risk, we lived through all the terrible 'isms' of our
youth, and we were willing to risk our lives — but not our children's
lives."
But Goodman
said her husband cautioned her: "Our children know what our thinking is,
but now they have to take their own path. And if Andy wanted to go to
Mississippi, that was up to him. He has to take that risk."
She said the
family thought the worst thing that might happen was that Andy would end up in
jail and his parents would have to bail him out.
On Friday,
she said she might like to be alone in a room with Killen, to ask what was on
his mind the evening her son died.
"All
these years, I've been trying to understand what caused him to be part of a
group of people who murdered three innocent young men," she said.
"Could he tell me?"
Bender, who
later remarried, is an attorney as well as a mother and a grandmother. She said
that for her, the case was even more important than convicting Killen or anyone
else involved in the murders.
"In
many ways, those men were pawns," she said. "They were manipulated by
a state apparatus that was determined to preserve a racist society by whatever
means. That doesn't mean they are not individually liable for their acts, but
there is a lot more liability and a lot more responsibility than just them.
"And so
for me," she went on, "the importance of this case is to use it to
talk about the result of racism and state-sponsored terror."
Bender
accompanied her young husband to Mississippi that summer of 1964, as a volunteer
for CORE, the Congress of Racial Equality. In her job application, she wrote of
her hope "to someday pass on to the children we may have a world
containing more respect for the dignity and worth of all men than that world
which was willed to us."
The sadness
and the injustice of the murders in Mississippi have remained with her, Bender
said. But she still harbors that hope.
* * * * *
The
following article appeared on CNN.com on January 12, 2005:
Prosecutors
want courtroom open during Jackson hearings
LOS ANGELES, California (AP) --
Michael Jackson's prosecutors have asked to keep the courtroom open during
hearings on whether to admit into evidence allegations of prior sexual offenses
by the singer.
The parties were due in court
Wednesday to argue the admissibility of the alleged prior offenses and a motion
to close the courtroom.
According to documents released
Tuesday, the prosecution said the grounds on which the defense seeks to exclude
the evidence is that it is "inherently incredible."
But the prosecution said that is
for the jury, not the judge, to decide.
"Merely labeling the proposed
testimony of an adverse witness as 'incredible' doesn't make it so," the
motion said.
Senior Deputy District Attorney
Gerald McC Franklin said the prosecutor who will argue the motion to admit
evidence of prior acts will speak "with discretion" and "is
acutely concerned that the right of both parties to a fair-minded and impartial
jury not be prejudiced by references to evidence not yet made public."
In a separate motion, a coalition
of news media organizations, including CNN and The Associated Press, opposed
closing the courtroom. The coalition of media say the motion by Jackson's
lawyers flies in the face of a long history of U.S. Supreme Court and
California Supreme Court rulings guaranteeing openness in the courts.
"What transpires in the
courtroom is public property," the motion said. "Mr. Jackson's
celebrity status does not change that fact."
Jackson, 46, is charged with
plying a boy with alcohol and molesting him. He has pleaded not guilty.