Issue 322
February 4, 2005
v The Prosecutor Never Rests by Peter Slevin
v Cross-Examination for a Drama That Puts the Death Penalty on Trial by Adam Liptak
v Courts feel fallout from sentencing decision by Associated Press
v Wrongful convictions plague justice system by Stephen Thorne
v For the Wrongly Convicted, New Trials Once the Cell Opens by Sharon Waxman
v Support War Crimes Trials for Darfur by Jack Goldsmith
v Why Should We Shield the Killers by Nicholas D. Kristof
v Innocent man can sue his lawyer by Nicole MacIntyre
v Jury awards $6.6 million to man ‘framed’ by FBI by Matt O’Connor
v At Celebrity Trials, the Spotlight Is Sharp but Shifting by Charlie LeDuff
v Jackson Juror Prospects Asked About Race by Tim Molloy
v Lawyers in Kobe Bryant Trial Get Stern Warning to End Delay by Kirk Johnson
The following article appeared on washingtonpost.com on
February 2, 2005:
The
Prosecutor Never Rests
Whether
Probing a Leak or Trying Terrorists, Patrick Fitzgerald Is Relentless
By Peter
Slevin
Washington
Post Staff Writer
CHICAGO
If Osama bin
Laden ever stands trial, there's a prosecutor in Chicago waiting to face him
down. As a driven young lawyer in the 1990s, Patrick J. Fitzgerald built the
first criminal indictment against the man who would become the world's most
hunted terrorist. Both men have moved on, you might say, but Fitzgerald still
imagines that fantasy date before a judge.
"If
you're a prosecutor, you'd be insane if you didn't want to go do that,"
Fitzgerald says in the well-appointed conference room of the U.S. attorney's
office here. "If there was a courtroom and they said someone has to stand
up and try him, would I hesitate to volunteer? No. I'm not saying I'd be the
best person to try him at that point, but I'd be lying if I told you I wouldn't
be interested."
A solidly
built former rugby player who enjoyed getting muddy and bloody well into his
twenties, Fitzgerald is nothing but confident in his own skin. Just as he does
not fear bin Laden, he seems to fret little that he is now tangling
simultaneously with the Bush White House and the New York Times, two of the
nation's most powerful and privileged institutions.
Fitzgerald,
44, is the special prosecutor investigating the leak of covert CIA operative
Valerie Plame's name to columnist Robert Novak. The gifted son of an Irish
doorman makes no bones about challenging the establishment. His office is also
prosecuting former Illinois governor George Ryan and loyal associates of
Chicago Mayor Richard Daley on influence-peddling and corruption charges.
He sees his
task as getting to the bottom of things in ways as creative as the law allows.
The law doesn't say you can't question a sitting president about his contacts
or an investigative reporter about confidential sources. So Fitzgerald has done
both, including quizzing Bush for more than an hour in the White House last
June. His assiduous demands for answers from journalists alarms critics who
believe he has created the greatest confrontation between the government and
the press in a generation.
The Times
editorial page has hammered Fitzgerald, saying that "in his zeal to compel
reporters to disclose their sources, Mr. Fitzgerald lost sight of the bigger
picture." His demand that Times reporter Judith Miller and Time magazine
correspondent Matthew Cooper be forced to testify prompted the paper to call
the case "a major assault" on relationships between reporters and
their secret sources, the very essence of reporting on the abuse of power.
Fitzgerald
is too politic to talk back, at least before he has wrapped up the case. A
federal appeals panel in Washington is due to rule any day on whether the
reporters must testify, and his work on the leak investigation is not done. But
he appears to wonder what the fuss is all about. He says freely that he is
zealous, a term he translates as passion within limits.
James B.
Comey, deputy attorney general and unofficial president-for-life of the Pat
Fitzgerald Booster Club, says no high-profile prosecutor ever provided less
evidence that he was "doing something wacky."
"What's
been interesting is seeing the media accounts and the columnists portray him as
some sort of runaway prosecutor. That makes me smile," says Comey, who is
largely responsible for Fitzgerald getting the Plame assignment. "Because
there is no prosecutor who is less of a runaway than this guy."
The
Untouchable
Fitzgerald
frequently makes crime-fighting headlines in Chicago, where he took over the
U.S. attorney's office just 10 days before 9/11. What's surprising is that he
got the job at all. A New Yorker born and bred, Fitzgerald knew hardly a soul
in Chicago, which was precisely the idea. Sen. Peter Fitzgerald (no relation)
was looking for an outsider to battle the state's notoriously corrupt political
apparatus.
The recently
retired Illinois Republican tells a story about back in Al Capone's day, when
Col. Robert McCormick, the imperious publisher of the Chicago Tribune, called
FBI Director J. Edgar Hoover and demanded that he send someone to Chicago who
could not be bought.
Hoover sent
the untouchable Eliot Ness.
Now, as
then, the U.S. attorney's job has the gloss of patronage. The late Chicago
mayor Richard J. Daley used to say the U.S. attorney in Chicago is one of the
three most important people in the state, and Peter Fitzgerald said he wanted
"someone who couldn't be influenced either to prosecute someone unfairly
or protect someone from being prosecuted unjustly."
So the
senator, who as the state's senior Republican had the right to recommend a
candidate to the White House, went to one of Hoover's successors for advice.
"I
called Louis Freeh and said, 'Who's the best assistant U.S. attorney you know
of in the country?' He said, 'Patrick Fitzgerald in the Southern District of
New York.' " The senator then called Mary Jo White, who ran the New York
office. Same question. Same answer.
At the time,
Patrick Fitzgerald was trying suspects in the 1998 bombings of the U.S.
embassies in Kenya and Tanzania. He thought the call from a senatorial aide was
a practical joke by one of his buddies. But as soon as their interview was
over, the senator knew he had his man.
"I
thought, 'He is the original Untouchable,' " Peter Fitzgerald says.
"You could just see it in his eyes that he was a straight shooter. There
were no levers that anyone had over him. He had no desire to become a partner
in a private law firm. He has no interest in electoral politics. He wanted to
be a prosecutor."
World Class
For years,
Fitzgerald has avoided receiving mail at his apartment because of the threat of
a letter bomb from one murder-minded defendant or another.
The staff of
the 9/11 commission called him one of the world's best terrorism prosecutors.
He convicted Sheik Omar Abdel Rahman in the 1993 World Trade Center bombing and
all four defendants in the embassy bombings, which had left 224 people dead. He
extracted a guilty plea from Mafia capo John Gambino and became an authority on
bin Laden, whom he indicted in 1998 for a global terrorist conspiracy that
included the African bombings.
"His
thoroughness, his relentlessness, his work ethic are legendary," says
terrorism expert Daniel Benjamin, a former member of the National Security
Council.
Seeing
Fitzgerald in action, says Los Angeles lawyer Anthony Bouza, a college
classmate, is "like watching a sophisticated machine." Colleagues
speak in head-shaking tones of Fitzgerald's skills in taking a case to trial. A
Phi Beta Kappa math and economics student at Amherst before earning a Harvard
law degree in 1985, he has a gift for solving puzzles and simplifying
complexity for a jury.
He's no
slouch at stagecraft, either. At the trial of a Mafia hit man, the defense
argued that a ski mask -- part of what Fitzgerald called a "hit kit"
that included surgical gloves, a gun and hollow-point bullets -- was really
just a hat. (The defense also said the surgical gloves were for putting
ointment on the defendant's ailing dog.) During closing arguments, Fitzgerald
startled the jury by rolling up one leg on his lawyerly dark suit.
"These
are just shorts, ladies and gentlemen," he said, according to one account.
"These are just shorts."
Into the
Scrum
People who
know Fitzgerald describe him as anything but a stuffed shirt. During a key
moment in one New York trial, he slipped a note to his co-counsel, who
interrupted questioning to read it to himself. It said, "Is there beer in
the fridge?"
Fitzgerald's
parents, born on opposite sides of Ireland's County Clare, met in the United
States. They raised their son in Flatbush and guided him to a scholarship at a
Jesuit high school. He worked as a school janitor in Brooklyn to make money for
college and spent summers opening doors at an upscale co-op building on East
72nd Street in Manhattan. (His father worked at a building on East 75th, just
off Madison Avenue.) It is part of Fitzgerald lore that he bit his tongue when
rich apartment dwellers talked down to him as "just the doorman."
After law
school, he spent three years in private practice before fleeing to the
prosecution side. In the New York days, his married friends chided him about
his workaholic, overachieving, hopelessly bachelor life. One time, visiting the
small Brooklyn studio where Fitzgerald lived, a lawman noticed papers piled on
the gas stove. Don't worry about the fire hazard, Fitzgerald told him --
"I've never turned it on."
"The
advantage he had over me," Comey says, "was he was much smarter and
he had no life. He could sit there and never go home. Fitz would go in there
and just sit and read through files. It would almost be as if he was
photographing them.
"Fitzgerald
did get out to exercise, and he even learned to scuba dive, an image his
friends still cackle about.
"I'm
certified as a scuba diver, but I can't really swim," Fitzgerald explains.
"I'm very good at sinking."
Above all,
Fitzgerald, who is 6 feet 2 and weighs 215 pounds, played rugby, a sport
defined by toughness and camaraderie. He played at Amherst, at Harvard, and for
several years in Manhattan. "You get every stress out of your system. You
kick the ball, catch the ball, tackle, be tackled. At the end of the game,
there's no unspent energy left. I did get bloodied a fair amount."
He adds,
"That was not the goal."
'Nice Place'
Fitzgerald
is careful to be apolitical in his targets and his public life alike. He
registered to vote as an Independent in New York, only to discover, when he
began receiving fundraising calls, that Independent was a political party. He
re-registered with no affiliation, as he did later in Chicago.
He spit fire
last year when reporters asked whether the racketeering indictment of Muhammad
Hamid Khalil Salah, a fundraiser for the Islamic militant group Hamas, was
timed to boost President Bush's reelection campaign. The case was trumpeted
first by Attorney General John Ashcroft.
"I am
not running for an election. I'm not part of a political party,"
Fitzgerald said at the time. "The election is irrelevant to this case. The
reason we brought this case now is we're ready to proceed."
Nor has
Fitzgerald signaled where his own ambitions lie. He insists that he has already
advanced further than his imaginings, but he is clearly aware of his emerging
star status. Asked about the notion of becoming FBI director after Robert
Mueller, another prosecutor who quit private practice to put bad guys behind
bars, he laughs. "That's probably Director Mueller when he's having a bad
day, trying to unload it on somebody else."
He did not
say he was uninterested, just that he is not thinking beyond his current job.
In the
high-profile Chicago job, he still works killer hours and he chairs the
attorney general's advisory panel on terrorism. And while he will not publicly
discuss details of love, politics or religion, others say his social life has
improved, along with his apartment. "It's a really nice place. My wife
walked in and said, 'I know Pat's got a girlfriend,' " says Comey.
"Fitz wouldn't know eggshell from burnt orange, but he's got a life."
Fitzgerald
says he remembers where he came from and pinches himself when he realizes where
he is.
"I'm
very indebted to my parents. They were very hardworking, straight, decent
people. The values we grew up with were straight-ahead. We didn't grow up in a
household where people were anything but direct," Fitzgerald says.
"I'm hoping that if you're a straight shooter in the world, that's not
that remarkable."
'Off
Course'?
Try telling
that to the publisher of the New York Times.
Arthur
Sulzberger Jr., defending his reporters, blasted Fitzgerald and said, "The
government's investigation into the Valerie Plame case has moved dangerously
off course." Not only has the liberal editorial page sliced into
Fitzgerald, but conservative columnist William Safire called Fitzgerald a
"runaway Chicago prosecutor" and warned that a pair of his investigations
are "this generation's gravest threat to our ability to ferret out the
news."
President
Richard Nixon kept an enemies list and waged an epic fight over the publication
of the Pentagon Papers, settling only when the Supreme Court backed the right
of The Washington Post and New York Times to publish. Not a few presidents have
tried, usually fruitlessly, to identify leakers and punish the reporters all
too glad to publish those leaks.
But
Fitzgerald has ignored the old saw about arguing with someone who buys ink by
the barrel. In both the Plame case and an unrelated terrorism investigation, he
is trying to force Times reporters to reveal their confidential sources, a
quinella not attempted in modern memory.
"In all
his cases, Pat keeps the blinders on and goes forward to where the facts lead
him," says David Kelley, the acting U.S. attorney in New York and former
head of the Justice Department's 9/11 Task Force. "He is not influenced by
anything except by those things that ought to influence him. I wouldn't call it
zeal. I would call it courage."
Many legal
experts say Fitzgerald has the law on his side in the Plame investigation. The
Supreme Court ruled narrowly in 1972 that reporters could be required to
testify to a grand jury if the prosecutor proved a legitimate need.
Chief U.S.
District Judge Thomas Hogan backed Fitzgerald and ordered Miller and Cooper to
testify. Fitzgerald's tactics are not "a fishing expedition or an improper
exercise of prosecutorial authority," he said.
Zeal or
courage? Where one side sees dangerous meddling, another sees creativity. The
divergent takes are evident in the Plame investigation, a quest to find out who
leaked her name and why. Faced with confidentiality pledges that reporters
consider sacrosanct, Fitzgerald got one source, vice presidential Chief of
Staff I. Lewis Libby, to grant journalists a limited release from their
confidentiality pledge.
Reporters,
including two from The Washington Post, ultimately answered a narrow list of
questions regarding their conversations with Libby. One Fitzgerald backer
called it "elegant thinking that I would expect from him." But some
journalists worried that a secret source brave enough to expose wrongdoing
could now be pressured by prosecutors to reveal his cooperation with reporters.
Even more
troubling to many press analysts is Fitzgerald's effort to review the telephone
records of Miller and fellow Times reporter Philip Shenon in another case. The
prosecutor wants to know how the Times learned of the impending search of two Islamic
charities then under investigation by Fitzgerald's office. The Times called the
charities for comment, allegedly alerting them to the raid, Fitzgerald says.
In a recent
court hearing, Fitzgerald told U.S. District Judge Robert W. Sweet that he is
sensitive to First Amendment concerns. He said the reporters are not his
targets: "We want to find out who leaked national security
information."
Times
attorney Floyd Abrams countered, "If we start down the road of permitting
a federal prosecutor to obtain secret information without which journalists
cannot function, the world will change for the worse because confidential
sources will no longer be available."
The Chicago
Tribune, which has cheered Fitzgerald's crime-fighting energy, published a Jan.
23 editorial titled "Mr. Fitzgerald, Back Off." It called his pursuit
of the reporters "a direct affront" to the First Amendment rights of
the free press.
Of the
prosecutor's assertions of sensitivity, the paper scoffed, "That's
rubbish."
Playing
Hardball
"Do I
have zeal? Yes. I don't pretend I don't," Fitzgerald says. "As a
prosecutor, you have two roles: Show judgment as to what to go after and how to
go after it. But also, once you do that, to be zealous. And if you're not
zealous, you shouldn't have the job. Now sometimes 'zealous' becomes a code
word for overzealous and I don't want to be overzealous. I hope I'm not."
Media
advocacy circles are not the only places where Fitzgerald's enthusiasm has been
noted with alarm. In an unusually bitter fight that surfaced in late January,
Fitzgerald drew angry criticism from a Chicago federal judge who said one of
Fitzgerald's attorneys improperly delivered secret grand jury material to a
private attorney in a civil case.
U.S.
District Judge James F. Holderman demanded an investigation of Fitzgerald and
several prosecutors. Fitzgerald blazed back, charging in an unusually pointed
brief that the judge had "displayed a disturbing lack of
objectivity." He accused him of "petty harassment" of
prosecutors and asked an appeals court to remove the judge from the case
because of a conflict of interest involving his wife.
The question
of zeal surfaced yet more prominently in two Chicago terrorism cases --
investigations into the Global Relief and Benevolence International
foundations, which inspired a less than flattering analysis by the 9/11
commission staff.
The staff
report last year said the federal government's treatment of the two charities
raised "substantial civil liberty concerns" and revealed a critical
difference between asserting "links" to terrorists and proving
concrete support. In the case, Fitzgerald again had the backing of Ashcroft,
who jetted to Chicago in October 2002 with a media contingent in tow and vowed
to halt "the source of terrorist blood money."
But the
trial judge and the 9/11 commission staff concluded that Fitzgerald failed to
prove that Enaam Arnaout, the Benevolence executive director, had provided
financial support to al Qaeda, as the indictment had alleged. A federal judge,
referring to the prosecution's evidence, said the defendant appeared primarily
a victim of guilt by association.
On the day
the trial was to begin, Arnaout pleaded guilty to a fraud charge. Judge Suzanne
Conlon made clear in ordering Arnaout to prison for 11 years that he had not
been convicted of a terrorism crime.
Fitzgerald
said in the interview that he is not disappointed by the plea bargain that
ended the case, only by what he considers Arnaout's later failure to tell what
he knows. Of Conlon, he said, "She thought we hadn't connected the dots. I
thought we had."
"When
you're a pitcher, you throw the ball over the plate and if you think you threw
a strike and the umpire says it's a ball, it doesn't matter how much you think
it's a strike. You put your case on. You don't walk into court out of fear that
when you do it, either a judge will disagree with some of what you say or a
defense attorney will call you overzealous."
* * * * *
The
following article appeared on nytimes.com on January 27, 2005:
Cross-Examination
for a Drama That Puts the Death Penalty on Trial
By Adam
Liptak
The six
stories you are about to hear are true," an announcer says at the
beginning of "The Exonerated," a little Off Broadway play whose
outsize impact will only grow when Court TV presents a filmed version of
it tonight at 9. "Every word
was taken directly from a court document, deposition, testimony or
letter."
The
gripping, understated excerpts tell the stories of six people released from
death row. The play, which has been presented around the country by a rotating
cast of celebrities, has helped reshape the debate about the death penalty.
People who once argued about the morality of executing the guilty now discuss
whether the capital justice system can be trusted to separate those deserving
death from the wholly innocent.
The play
infuriates many supporters of the death penalty. They say it takes liberties
with the truth in matters small and large, that several people portrayed in it
may be free but are nonetheless guilty, and that the play is part of a movement
that means to redefine the very concept of innocence.
"Court
TV wants people to believe that people are regularly sent to death row for
crimes of which they are factually innocent," said Joshua Marquis, the
district attorney in Astoria, Ore., whose critique of "The
Exonerated" is to be published in The Journal of Criminal Law and
Criminology this spring.
The play, by
Jessica Blank and Erik Jensen, suggests, for instance, that all its subjects
have been unequivocally exonerated. But two former prisoners portrayed in it -
Sonia Jacobs (played by Susan Sarandon) and Kerry Max Cook (Aidan Quinn) -
pleaded guilty to murder in exchange for sentences of time served, after
questions were raised about the evidence originally used to convict them and
after appeals courts ordered them retried.
They are
thus legally guilty even though they say they were factually innocent. Other
people - recall O. J. Simpson - are legally innocent because prosecutors failed
to prove them guilty beyond a reasonable doubt. But like Mr. Simpson, who was later held responsible for two
killings in a civil trial, they may nonetheless be, in fact, guilty.
Bob Balaban,
who directed the play and the Court TV production, says that critics are
missing the point.
"I
didn't want us to say that everyone was innocent," he said.
"Prosecutors have a perfect right to say that maybe some of these people
are guilty. They should also say, 'Maybe some of the people we prosecuted
weren't really guilty.' "
The play's
very title reflects a semantic war about the meaning of exoneration. Many
opponents of the death penalty use the word exonerated to describe everyone
released from death row for prosecutorial misconduct or because the evidence
against them was shaky. But prosecutors who support capital punishment say the
term should be reserved for a much smaller group.
"If a
governor grants a pardon, I think you can call that an exoneration," Mr.
Marquis said. "If the State of Texas pays $1 million for a wrongful
conviction, that's an exoneration. If the prosecutor agrees the person didn't
do it, that's an exoneration. It means the person didn't do it."
At the very
least, "The Exonerated" has helped focus the debate.
"The
play has been incredibly powerful," said Stephen B. Bright, the director
of the outhern Center for Human Rights and a death penalty opponent. "It's
a subject that's not on people's minds a lot. I've seen the reactions of people
in the audience. People gasp."
Some of them
come away, Mr. Bright added, with an appreciation for paradox.
"They
send you to death if you say you're innocent," he said. "They let you
go if you say you're guilty."
In an effort
to discredit "The Exonerated," prosecutors have been conducting
research. In his article, Mr. Marquis examines, for instance, a transcript and
audiotape of police questioning Ms. Jacobs in 1976.
A review of
those materials revealed minor but insignificant inconsistencies between the
actual conversations and the play's script.
"There
probably was an 'of' and 'and' we dropped or where we connected things,"
Mr. Balaban said, "but it's verbatim transcript."
Police
questioning that is presented as belligerent in the play is substantially milder
on the tape.
"We did
take some license," Mr. Balaban said, but he called the inconsistencies
trivial.
Ms. Jacobs's
story is, in any event, a good illustration of the difficulty of determining
guilt in the legal or factual senses.
In the early
morning on Feb. 20, 1976, Phillip Black, a state trooper, came upon a green
Camaro parked at a rest stop on Interstate 95 in South Florida. Five people,
including Ms. Jacobs and her two children - a 9-year-old boy and an infant girl
- were asleep inside. Mr. Black spotted a gun, grabbed it and ordered the
driver, Walter Rhodes, to get out.
The trooper
ran a radio check on Mr. Rhodes, who turned out to be a felon on parole. That
upped the tension. The trooper ordered the man in the front passenger seat,
Jesse Tafero, to get out as well. Before he did, he passed a second gun to Ms.
Jacobs, according to an account to which Ms. Jacobs agreed at her plea hearing.
Mr. Tafero, who had a substantial criminal history, was Ms. Jacobs's boyfriend
and the father of her younger
child. Both
guns belonged to Ms. Jacobs, according to the agreed account.
According to
Mr. Rhodes's testimony at trial, Mr. Tafero and Ms. Jacobs each shot at the
trooper and a second man, a friend of the trooper, killing both. Mr. Rhodes
received a life sentence in exchange for his testimony; he was released on
parole in 1994.
Prosecutors
said some of the shots could have come only from Ms. Jacobs, who was by then
the only adult inside the car. Holly R. Skolnick, one of Ms. Jacobs's lawyers,
disagreed.
"Neither
Jesse nor Sunny did any of the shooting," she said in a recent interview.
Mr. Rhodes's
story has shifted back and forth over the years. In 1992, two years after Mr.
Tafero was executed for his role in the shootings, a federal appeals court
reversed Ms. Jacobs's conviction, saying that prosecutors had withheld
important evidence, and ordering a new trial.
That gave
rise to the plea deal.
"We
don't believe she was exonerated by any stretch of the imagination," said
Ron Ishoy, a spokesman for the state attorney in Fort Lauderdale, Fla.,
"as that plea she signed shows."
Ms. Skolnick
said Ms. Jacobs's decision to plead guilty was a difficult one.
"She
still has second thoughts about it because she wanted to be exonerated,"
Ms. Skolnick said. "How can you argue with freedom?"
The largest
question prompted by "The Exonerated" is about the death penalty
itself.
"Opponents
of the death penalty are trying to change the debate," said Ward A.
Campbell, a supervising deputy state attorney general in Sacramento. "They
don't think they can prevail on the straight moral question. They glamorize
what is a very minute number of cases in which defendants who have been
sentenced to death were exonerated."
Almost no
one denies that about 30 factually innocent people have been freed from death
row. Even critics of "The Exonerated" tend to concede that some of
the people in it are wholly innocent. Mr. Marquis said "two or three"
of the people depicted were authentically exonerated.
"It's cause
for concern," Mr. Marquis said. "But it's the difference between a
problem being epidemic or episodic."
* * * * *
The
following article appeared on boston.com on January 28, 2005:
Courts
feel fallout from sentencing decision
Appeals by
prisoners swell following ruling
By
Associated Press
WASHINGTON
-- Thousands of criminals are filing for reduced sentences. Backlogged courts are asking lawyers to
slow down their appeals. Judges say they're confused about what to do.
Two weeks
after the Supreme Court threw out mandatory sentencing guidelines, federal
courts are just beginning to grapple with the consequences. And judges say it
may take months, if not years, to sort through thousands of appeals and piece
together a new sentencing system.
"It's a
much more stressful exercise now," said US District Judge Harold Baer of
New York, who sentences dozens of white-collar criminals and drug offenders
each month. "We're all desperately trying to follow the Supreme Court
decision. But what does that mean?"
Congress
enacted the federal guidelines two decades ago to ensure justice would be meted
out more equally around the country. In place since 1987, the guidelines give
judges a range of possible punishments for a given crime and make it difficult for
judges to go outside those boundaries. Many states have adopted similar systems
for their local courts.
In the Jan.
12 ruling, the Supreme Court said making the guidelines mandatory violated a
defendant's Sixth Amendment right to a jury trial because they call for judges
to make factual decisions that affect prison time, such as the amount of drugs
involved in a crime.
Under the
ruling, the guidelines now are only advisory; as a result, federal judges are
free to sentence convicted criminals as they see fit, but they may be subject
to reversal if appeals courts find them "unreasonable."
The burden
of defining that legal standard will fall on the nation's 13 federal appeals
courts, which received 400 new cases Monday after the Supreme Court ordered
them to reconsider defendants' sentences for crimes ranging from securities
fraud to theft and drug possession.
Those 400
cases are petitions from defendants who wanted their sentences reviewed after
justices struck down a similar sentencing guidelines plan in Washington state
last June, putting the federal guidelines in doubt. Hundreds of other appeals
are pending at the appeals court level.
The appeals
courts already are feeling the heat. At least two, the Ninth Circuit in San
Francisco and the Second Circuit in New York, are asking defense attorneys to
hold off on filing some sentencing appeals for now, with exceptions for
emergency cases.
Court
officials cited an already congested docket in asking defendants to wait until
the appeals court judges can offer some guidance on the definition of
"reasonable" sentences in a few test cases in coming weeks.
Carmen
Hernandez, a vice president of the National Association of Criminal Defense
Lawyers said, "Defendants sitting in prison are calling us wanting to know
how the ruling affects their case. We're having to tell them to wait."
Edward
Becker, a senior judge for the Philadelphia-based US Court of Appeals for the
Third Circuit, said his court still is determining whether to delay some
appeals. The main challenge, he said, will be determining whether the ruling
should apply retroactively to tens of thousands of prisoners nationwide whose
appeals already have run their course.
The US Court
of Appeals for the First Circuit, which includes, Massachusetts, Maine, New
Hampshire, Rhode Island, and Puerto Rico, has not taken any action to delay
appeals, according to Susan Krueger, a spokewoman for the circuit. She said
there has been an increase in sentencing appeals since last June, when the
Supreme Court issued an earlier
ruling raising questions about the constitutionality of federal sentencing
guidelines.
Many judges
are sticking close to the guidelines, but some are showing some leniency for
first-time offenders.
* * * * *
The
following article appeared on OttawaCitizen.com on January 25, 2005:
Wrongful
convictions plague justice system
by Stephen
Thorne
OTTAWA (CP)
-- Wrongful convictions continue to plague justice systems in Canada and
elsewhere despite studies and reports on the issue, says a report by federal,
provincial and territorial prosecutors and police.
"Various commissions and studies in
Canada and around the world have provided valuable insight into the systemic
causes of wrongful convictions and into what has gone wrong in individual
cases,'' says the report.
"What is startling, however, is
that some problems, themes and mistakes arise time and time again, regardless
of where the miscarriage of justice took place.''
Fault lies with the conduct of police,
prosecutors, defence lawyers, judges and forensic scientists, and they are not
confined to proceedings in the courtroom, says the report.
Like disasters, miscarriages of justice
are rarely the result of a single mistake or event but almost always the result
of a series of events, says the report presented Tuesday at a conference of
justice ministers.
There are no simple solutions, it says,
and responsibility to prevent wrongful convictions lies with all participants
in all jurisdictions of the criminal justice system.
"Police officers, Crown counsel,
forensic scientists, judges and defence counsel all have a role to play in
ensuring that innocent people are not convicted of crimes they didn't commit,''
says the report.
"As useful as commissions of
inquiry may be, they usually come many years after the fact. The goal of all
justice system participants must be to prevent wrongful convictions from
occurring in the first place.''
The 155-page report says common factors
come up in wrongful convictions in Canada and elsewhere, devoting a chapter to
each with 40 recommendations:
a..
Tunnel vision, or "the single-minded and overly narrow focus on an
investigation or prosecutorial theory,'' is the leading cause of false
convictions.
b.. Mistaken eyewitness identification
and testimony can come from ``the most well-meaning, honest and genuine
eyewitness.''
c.. A New York study found 35 of the
first 130 post-conviction exonerations made on DNA evidence, or 27 per cent,
involved false confessions.
d.. In-custody informers are
notoriously unreliable yet still factor in a significant percentage of cases
that end in wrongful convictions.
e.. While not proof that one person or
another committed a crime, DNA evidence has proven many cases of false
conviction.
f.. Refinements and education in
forensic evidence and expert testimony are needed.
The reporting panel led by Rob
Finlayson, Manitoba assistant deputy attorney general, concludes that the
criminal justice system must be constantly on guard against factors that can
contribute to miscarriages of justice.
Focusing primarily on serious crimes
such as homicides, its recommendations target everyone from individual police
officers and prosecutors to police and prosecution services.
The report stresses the need for
continuing education and urges each prosecution service to develop a
comprehensive written plan to educate its prosecutors on the causes and
prevention of wrongful convictions.
It also recommends creation of a virtual
resource centre on the issue for police and prosecutors and establishment of a
permanent prosecutors' committee on the prevention of wrongful convictions.
"The risk of error always exists in
any human endeavour,'' it says. ``In the justice system, the consequences of a
wrongful conviction can be tragic.
"The working group hopes its
recommendations, if implemented, will go a long way towards reducing the risk
of future wrongful convictions and ensuring that the innocent are acquitted and
the guilty convicted.''
* * * * *
The
following article appeared on nytimes.com on January 25, 2005:
For
the Wrongly Convicted, New Trials Once the Cell Opens
By Sharon
Waxman
PARK CITY,
Utah, Jan. 24 - This month marks one year since Nick Yarris was released from prison after having spent
23 years behind bars, many of them in solitary confinement and on death row,
for a murder he did not commit.
DNA testing
proved his innocence. Upon his release, he was given no money, no housing, no
training, no therapy. And no apology.
But he is
not an angry or bitter man. In fact, Mr. Yarris, 43, is remarkably composed and
articulate in discussing his fate and that of others who have been released
after wrongful conviction. They are featured in a new documentary, "After
Innocence," at the Sundance Film Festival, where viewers leaped to their
feet, many in tears, at the end of the first screening on Saturday.
"What
were my choices?" he said after seeing the film for the first time, when
asked how he could seem so sane. "I could, A) be really devastated and
angry and let them continue to own me, or B) I could have fun. B sounds
better."
He
continued: "I realized at some point that everyone in my family was
waiting for me, hoping for me. The lowest insult would be if I came out
destroyed, a broken man, bitter and angry. And it was survival. My survival
technique was to become a good man."
For all his
eloquence, Mr. Yarris is far from on solid ground. He still has no job, no
permanent home and no money. Still, he is in much better condition emotionally
than many of the other exonerees featured in the film, all of whom were
released, often after years of struggling to get DNA testing in their cases,
with no amends by the state.
(More than a
dozen states have passed laws providing compensation for convicts who are later
exonerated, though most of the men in the film, including Mr. Yarris, who is
from Pennsylvania, are from states that have none.)
Jessica
Sanders, the film's director as well as its co-producer and screenwriter, met
30 exonerees at a conference in 2002. "I was so moved by the stories of
these men, and shocked that nothing was being done for them," she said.
"I knew that a film had to be made."
Showtime
developed the project, though the producers are also seeking a theatrical
distributor.
Ms. Sanders
was introduced to the men through the film's co-producer and writer, Marc
Simon, who as a law student volunteered at the Innocence Project, a nonprofit
group run by Barry C. Scheck and Peter J. Neufeld that focuses on freeing the
innocent, frequently through DNA testing.
While that
effort continues - the group has helped free more than 150 wrongfully convicted
inmates in the last 13 years - there has been little attention to what happens
to the men after their release. Some depend on welfare and on their already
burdened families.
"Without
their families, these guys would be homeless," Mr. Simon said.
Wilton Dedge, a soft-spoken, blond-haired
man, was released five months ago after serving 22 years in prison in Florida
for sexual battery and burglary. In 2001, DNA tests of a hair, a central piece
of material evidence in his conviction, proved it was not his, but the
prosecution continued to fight to keep him in jail. More advanced DNA testing
of semen won his release last year.
"If the
state had their way, I'd still be in jail," Mr. Dedge said quietly,
nursing a beer at the post-screening lunch. "They don't want to admit they
messed up."
Mr. Dedge
learned welding in prison and since his release has found some part-time work
for a tree service. "All I got was a basic form letter apologizing for
what happened, not admitting they did anything wrong," he said. "But
it seemed pretty hollow, after all the names they called me in court. They
weren't man enough to step forward and apologize to my face. That disappointed
me."
Last October,
Mr. Yarris traveled to London to address the British Parliament about the death
penalty and his proposal for an economic embargo against Pennsylvania. While
there, he met Karen Karbritz, 30. They plan to be married in May, and he hopes
to start a new life with her in England.
"I'm
going to go, to try my best to have the things I wanted," he said, adding,
"I was waiting, hoping for a chance just to live. Now the greatest respect
I can have for her for trusting me is by loving her, and to thank her just for
holding me."
* * * * *
The
following article appeared on washingtonpost.com on January 24, 2005:
Support
War Crimes Trials for Darfur
By Jack
Goldsmith
A U.N.
commission chaired by the former president of the Yugoslav war crimes tribunal,
Antonio Cassese, is expected to issue its recommendation this week on whether
the International Criminal Court should investigate human rights abuses in the
Darfur region of Sudan. If the Cassese commission does propose an ICC
investigation, a Security Council referral will be necessary for the ICC to
proceed, because Sudan has not ratified the ICC treaty.
This would
place the Bush administration in a bind. The administration has condemned the
Darfur abuses as genocide. But at the same time, it strongly opposes the ICC,
which it believes is staffed by unaccountable judges and prosecutors who
threaten politically motivated actions against U.S. personnel around the globe.
These concerns explain why the United States has opposed ratification of the
ICC treaty and has sought bilateral assurances that other nations will not send
U.S. nationals to the ICC. News reports suggest that the Bush administration
would oppose a Security Council referral on Darfur out of fear that it would
confer legitimacy on the international court.
In fact such
a referral would be consistent with U.S. policy on the ICC. The United States
has never opposed ICC prosecutions across the board. Rather, it has maintained
that ICC prosecutions of non-treaty parties would be politically accountable
and thus legitimate if they received the imprimatur of the Security Council.
The Darfur case allows the United States to argue that Security Council
referrals are the only valid route to ICC prosecutions and that countries that
are not parties to the ICC (such as the United States) remain immune from ICC
control in the absence of such a referral.
This course
of action would signal U.S. support not only for the United Nations but for
international human rights as well, at a time when Washington is perceived by
some as opposing both. And it would give the United States leverage in seeking
genuine sanctions against Sudan, especially with France, which for oil-related
reasons has quietly resisted U.S. efforts on Darfur. France would have a hard
time opposing a package of sanctions that included U.S. support for an ICC
referral. Opposition by China and Russia would be harder to overcome but would
at least make clear to the world that those two powerful nations are even more
opposed to the ICC than the United States.
U.S. support
for a Security Council referral might also point the way to a compromise with
European nations that are anxious to secure U.S. backing for the international
court but oppose state-to-state deals that overtly immunize U.S. citizens from
ICC jurisdiction. Agreement on the need for Security Council approval for ICC
prosecutions would provide a more principled way for Europe to alleviate U.S.
concerns about rogue ICC prosecutions. Critics would decry this approach as a
double standard for Security Council members, who can protect themselves by
vetoing a referral. But this double standard is woven into the fabric of
international politics and is the relatively small price the
international
system pays for the political accountability and support that only the big
powers, acting through the Security Council, can provide.
The fears of
"legitimizing" the ICC are overstated. It's too late to kill the
International Criminal Court. The Security Council (including the United
States) presupposed the ICC's authority when it voted in 2002 and 2003 to
immunize U.N. peacekeepers from ICC prosecutions. And the institution is now up
and running, preparing for cases already referred to it. For better or worse,
the ICC is not going away anytime soon.
Another
potential obstacle is a 2001 congressional bar on U.S. cooperation with the
ICC. But this statute exempts acts taken pursuant to the president's
constitutional authority, and it specifically permits the president to
communicate to the ICC U.S. "policy with respect to a matter." The
congressional ban would preclude U.S. financial support for the ICC, but all
that means is that the United States can, for a change, enjoy the fruits of
international justice without having to pay for it.
Not that
there will necessarily be much fruit. Prosecutions by other international
criminal courts have done little to bring reconciliation to Rwanda or the
former Yugoslavia, or (as the Darfur tragedy shows) to deter future crimes in
other nations. Nonetheless, it is possible that the concrete threat of an ICC
prosecution could temper the killings in Darfur without adversely affecting the
recent peace deal between Sudan's Islamic government and its southern rebels.
If so, the Bush administration should play the difficult hand
likely to be
dealt it by the Cassese commission to its own political advantage. A more
moderate stance toward the ICC could be a more effective one.
The writer, a professor at Harvard Law School and a former Bush
administration official in the Justice and Defense departments, is the author
of "The Limits of International Law."
* * * * *
The
following article appeared on nytimes.com on February 2, 2005:
Why
Should We Shield the Killers?
By Nicholas
D. Kristof
Two weeks
ago, President Bush gave an impassioned speech to the world about the need to
stand for human freedom.
But this
week, administration officials are skulking in the corridors of the United
Nations, trying desperately to block a prosecution of Sudanese officials for
crimes against humanity.
It's not
that Mr. Bush sympathizes with the slaughter in Darfur. In fact, I take my hat
off to Mr. Bush for doing more than most other world leaders to address ethnic
cleansing there - even if it's not nearly enough. Mr. Bush has certainly done
far more than Bill Clinton did during the Rwandan genocide.
But Mr. Bush's sympathy for Sudanese parents who are having their children tossed into bonfires shrivels next to his hostility to the organization that the U.N. wants to trust with the prosecution: the International Criminal Court. Administration officials so despise the court that they have become, in effect, the best hope of Sudanese officials seeking to avoid acc