Issue 345
September 16, 2005
John
Roberts and a Judge of History
Civil Rights
Icon John Lewis Takes A Seat, and a Stand
By Marcia
Davis
Washington
Post Staff Writer
John Roberts
is well on his way to head the nation's judiciary, or so it's widely believed.
Washington knows this in the manner that it knows such things: There's little
left to do now but count the votes.
But
yesterday, Rep. John Lewis (D-Ga.), the longtime legislator and civil rights
icon, sat at the table before the Senate Judiciary Committee anyway. He sat
along with other Roberts opponents -- Wade Henderson, executive director of the
Leadership Conference on Civil Rights, and retired 6th Circuit Judge Nathaniel
Jones, former general counsel of the NAACP.
Others had a
seat at the table, too -- Jennifer Cabranes Braceras and Peter Kirsanow, both
members of the U.S. Commission on Civil Rights and supporters of Roberts, were
among the day's 30 witnesses offering their views on the nominee.The diversity
before the microphones in Hart Room 216, stood in sharp contrast to the scene
that's dominated the week's proceedings.
In this
exercise in representative democracy, the 18 committee members are all white --
17 men and one woman, Sen. Dianne Feinstein (D-Calif.). There have also been
only a handful of people of color witnessing the proceedings, be they activists
from the right or left, students or simply those who wanted to observe history.
"The nature
of the Senate for most of its history has been an organization of white
men," says Richard Baker of the Senate's historical office. "That's
just a fact. No question about it."
Barack
Obama, the newly elected Democratic senator from Illinois, is the only African
American senator, the fifth in the nation's history. There have been only 18
people of color since its founding -- black, Latino, Asian or Native American.
There have been only 33 women: 32 white, one African American.
"It
still raises the whole issue of race and class in the very room," Lewis
said later yesterday afternoon. "That we are still a society where
minorities, people of color, they are not present, just not there. . . . They
are not in a position to raise some of these hard and tough questions."
And "that's why it is left on the shoulders of some of the
progressive" whites in the Senate and other bodies, he said.
Public
questioning of Roberts ended yesterday morning, leaving the ensuing testimony,
pro and con, to be delivered to a dwindling audience. All of it is in the
record, and the senators receive the statements. By the time the panel
including Lewis was on deck, there were seven senators in the room, and few
journalists.
Kirsanow and
Braceras echoed Roberts's call for judicial restraint, with Braceras noting
that the court "is neither the first nor the last word on civil
rights."
Like Lewis,
Jones and Henderson spoke of the special role the courts had played in
expanding racial equality.
But it was
Lewis's presence that offered the drama of history.
"When I
was growing up in rural Alabama," read Lewis, 65, "I saw those signs
that said, 'White Men, Colored Men,' 'White Women, Colored Women.' I used to
ask my parents, my grandparents, 'Why racism? Why racial discrimination?' And
they would tell me, 'Don't get in trouble. Don't get in the way.' "
"As a
participant in the civil rights movement of the 1960s, I decided to get in the
way. I was beaten, arrested and jailed more than 40 times for peaceful,
nonviolent protests against legalized segregation in the South."
He spoke
about Hurricane Katrina and how it had exposed, with its images of mostly poor
African Americans facing the aftermath of the storm in New Orleans, race and
class remain great dividers.
"In
1965, Judge Roberts was only 10 years old. He may be a brilliant lawyer, but I
wonder whether he can really understand the depth of what it took to get the
Voting Rights Act passed," Lewis continued.
Voting
rights and other issues such as the right to privacy (a key element in Roe v.
Wade ) have been a focus of Democratic senators questioning Roberts. They have
made it more than clear that they have not been happy with his responses.
Lewis knows
how to count votes. He is aware of where Roberts may be heading in the coming
days. And it didn't bother him at all that he was reading to an almost empty
room. He also knows that the proceedings were televised.
"It is
my hope that my testimony will give the senators, especially those who have not
made up their mind, but even those who have made up their mind, some additional
information, give them some food for thought."
"I
don't buy this idea that during the time that Judge Roberts was a young
attorney in the Reagan administration he was just doing his job and working for
someone who believed one thing and he believed something else."
Lewis
watched Roberts's questioning closely and found himself frustrated:
"People wanted to know, they wanted to know how he felt. What is your
overall feeling, what is in your heart?"
Committee
Chairman Arlen Specter (R-Pa.) asked Lewis how he felt about all that Roberts
had said. After all, Roberts noted, at 50 he is not the man he was in his
twenties.
But Lewis
isn't convinced. Nor does it matter, he says, that he is not expecting to
change history this time.
There have
certainly been colleagues and activists who say, "Why get in the way? This
wheel is already rolling. . . . Now he's going to be the chief justice. . . .
You shouldn't say anything, you shouldn't get in the way."
But that
just wouldn't be Lewis.
*
* * * *
War
of words erupts during Harris trial
Judge tosses
lawyers out of court in rift over jurors' alleged conduct
by Carlos
Sadovi
Tribune
staff reporter
A lawyer for
a boy initially charged in the murder of 11-year-old Ryan Harris suggested
Friday that police may be behind an anonymous letter accusing two jurors of
messaging each other, sparking a heated response from the city.
"This
letter should be given to the FBI. It should be fingerprinted," the boy's
lawyer, Andre Grant, shouted in court when the city tried to have the jurors
expelled. "There are 14,000 members of the [Fraternal Order of
Police]."
Lawyers for
the city shouted back that Grant was pointing at the defense table when he was
speaking and demanded that Judge Randye Kogan make a ruling on whether to
dismiss the jurors.
The heated
exchange prompted Kogan to kick out two of the lawyers, Grant and city lawyer
Michael Sheehan. She will rule Monday, she said, on the defense motion to remove
the male and female juror from the trial, now entering its sixth week.
The family
of an 8-year-old boy-- originally charged with the murder along with a
7-year-old boy--is suing the City of Chicago, retired Chicago police Detective
James Cassidy and Detective Allen Nathaniel.
Kogan
received an anonymous letter in her chambers Thursday saying the two jurors had
used text messages from their phones to discuss the case.
The two
jurors admitted they had messaged each other but not about the case. Earlier in
the trial Kogan had noted that there might have been "a budding
romance" between the two, confirmed Thursday when the judge made a cursory
look at the current cell phone text messages.
After
receiving the letter, Kogan allowed the jurors to continue in the case but
issued a court order to the Cook County sheriff's office to have the phone
records of the two jurors scoured.
Bill
Cunningham, a sheriff's spokesman, said it would take three days to two weeks
to even find out if the messages are recoverable.
Legal
experts said it is the first time they can remember text messaging or any other
high-tech communication between jurors being brought up as an issue in a trial.
The boy's
lawyers objected to removing the jurors because it would change the racial
makeup of the jury. Both of the jurors involved are minorities. The boy, who is
now 15, is African-American. When jury selection began on Aug. 1, jurors were
told that the trial would take about three weeks, but that estimate quickly
evaporated as lawyers for both sides squabbled and called for sidebar
conferences to object to witness testimony.
The boy's
lawyers have said that police rushed to charge the children because they were
African-American. Lawyers for the city contend that race played no factor and
that police had probable cause to charge the boys with the murder.
There are
currently four African-Americans, four Hispanics and four whites sitting on the
jury. Two whites and an African-American are alternate jurors.
The judge erred
by having the phone records scanned, said Grant. During sidebars, jurors
routinely use their cell phones to send and receive text messages. All have
denied discussing the case.
City lawyers
asked Friday that the judge dismiss both jurors or at the least the woman, who
had been accused previously of talking about the case.
"We
have put five years into this process. The fact that she is still on the jury
is of grave concern," said Sheehan.
The motion
led to the rancorous exchange from lawyers and to an angry response from Kogan.
"Both
of you, get out of here. Now," she shouted.
They were
allowed back in court after apologizing.
Leonard
Cavise, an associate professor at the DePaul College of Law, said the judge
takes the role as an investigative officer and must make sure that there is no
prejudice to either side.
Messaging or
talking to each other about a case is jury misconduct, but not a punishable
crime, said Cavise, who has been in the legal field for 34 years. The jurors
could, however, face perjury charges if the phone review shows they have
discussed the case and lied to the judge while under oath, he said.
While no one
has asked for a mistrial, the judge could rule that, at which point the trial
would have to start over, said Cavise. Even if the review finds no evidence of
wrongdoing, the issue could be brought up on appeal, he said.
* * * * *
Editorial:
Correct this injustice
Swift
justice is not always true justice. That may be the case with William
Mullins-Johnson, a Sault Ste. Marie man who was convicted by a jury in six
hours and has spent more than 12 years in prison for a murder that is now in
doubt.
Mullins-Johnson,
convicted of killing his 4-year-old niece while babysitting her on the basis of
evidence that is now being challenged, has always maintained his innocence.
The
Toronto-based Association in Defence of the Wrongly Convicted has taken up his
cause. A senior official in the Ontario chief coroner's office and an
international forensic expert suggest Mullins-Johnson was a victim of a
miscarriage of justice. After reviewing the evidence they believe the child
died of natural causes.
The
association has urged federal Justice Minister Irwin Cotler to intervene. And
with good reason.
Vindication
can be painfully slow arriving. David Milgaard spent an unconscionable 23 years
behind bars before being freed.
Mullins-Johnson
will face a bail hearing today and could be freed. Given the doubt that now
exists, the provincial attorney general's office has reason not to oppose his
release.
But it is up
to Cotler to resolve this matter. He can nullify the conviction, send the case
to the Ontario Court of Appeal or order a new trial.
Whatever his
course of action, Cotler should act promptly. Mullins-Johnson deserves better.
* * * * *
Fugitive
in Armored Car Theft Gives Up After 12 Years
By RANDAL C.
ARCHIBOLD
LAS VEGAS,
Sept. 15 - A woman who became one of the most sought after fugitives in the
United States after disappearing with an armored car and $2.5 million ended
almost 12 years on the run on Thursday when she walked into a federal
courthouse here and surrendered.
The woman,
Heather C. Tallchief, was a driver for Loomis Armored, now Loomis Fargo, on
Oct. 1, 1993, when while making a stop at the Circus Circus casino hotel she
took off with her truck and its contents, leaving behind two other guards.
Over the
years, the authorities have said they were baffled about how Ms. Tallchief and
her suspected accomplice, Roberto Solis, who had served time in prison for
killing an armored car driver in 1969, eluded capture.
The case had
been repeatedly broadcast on crime programs, including "America's Most
Wanted" on Fox. A spokesman for the F.B.I. said Thursday that she had been
a "highly sought after fugitive."
In an
interview before her surrender, she said she was in Europe much of the time,
out of reach of the money and working as a hotel maid.
In a court
appearance in the afternoon, Ms. Tallchief, 33, was ordered held on charges
that included bank larceny, fraud, conspiracy and making false statements to
obtain a passport. A hearing was set for Sept. 29.
Ms.
Tallchief, dressed in a gray blazer, a pink blouse and pale olive slacks, was
led away in handcuffs and leg irons.
This week,
Ms. Tallchief's lawyer, Robert Axelrod, interviewed his client on videotape in
Los Angeles in hopes of selling her story to Hollywood. The two people said
they would use the proceeds to reimburse the stolen money.
They allowed
The New York Times to observe the interview and ask follow-up questions on
condition that the newspaper not publish an article until the surrender.
Contrary to
previous reports, Ms. Tallchief said she was not the mastermind behind the
crime, but rather a victim of Mr. Solis's brainwashing. The criminal complaint
does not say who organized the scheme but describes the two people as planning
and carrying it out together.
Ms.
Tallchief, a Seneca born in Buffalo, N.Y., said she lived a largely unhappy
life, ostracized at school as she followed the punk rock scene and becoming
addicted to crack.
She
eventually obtained a general equivalency diploma and a nursing assistant
certificate and worked in hospitals and clinics in the San Francisco Bay area,
but, she said, had trouble keeping jobs. When she had hit bottom, she met Mr.
Solis, more than 20 years older, through a friend at a nightclub.
She said he
kept an altar in his apartment with a goat's head, crystals and tarot cards,
all of which she initially found shocking but came to accept his beliefs,
particularly that their meeting and "spiritual journey" were
predestined.
In the tape
with Mr. Axelrod, she said Mr. Solis constantly showed her tapes in the weeks
leading up to the crime that had a hypnotic effect.
"They
allegedly opened your mind but made you more receptive" to suggestion, she
said. "They had lots of swirling colors like a tie-dye t-shirt."
Ms.
Tallchief said his sway was so powerful that she hardly questioned him, even as
he steered her toward finding work at Loomis.
"He was
reformed," she said in the interview. "He wrote poetry. I knew his
mother. He was a very normal person. If you sat down and met him, you would
probably actually enjoy him. You would laugh at his jokes. You would think he
was a nice person. There was never anything about him that you would think he
was a heinous, horrible murdering con."
Ms.
Tallchief said she followed Mr. Solis's instructions up to and on the day of
the crime "almost like a robot." She said recalled little about the
planning.
After
driving off her route with the truck, she said, she drove to a warehouse, but
did not know what happened to the money after helping Mr. Solis load it into
boxes there. "I probably asked him about it but he wouldn't ever
answer," Ms. Tallchief said, adding that when the subject came up he would
say things like: " 'Don't worry about it. I'm taking care of it. It's O.K.
It's safe. I've got it under control.' "
She took
flight, she said, at first disguised as an old woman in a wheelchair pushed by
Mr. Solis. She later led a low-key life in Amsterdam as a hotel maid, affecting
an English accent that she still faintly speaks with now.
She declined
to discuss how she slipped out of the United States with Mr. Solis and how she
returned. Mr. Axelrod said she re-entered through Los Angeles a few days ago.
Ms.
Tallchief said she had seen a psychiatrist in Los Angeles in the last few days.
She added
that she had no contact with Mr. Solis after she took their took their infant
son and left him. The boy, now 10, is in Amsterdam with friends of Ms.
Tallchief.
Mr. Solis,
60, is at large.
Mr. Axelrod
said that though the notion of being brainwashed "is a hard concept to
follow" he believed a jury or the authorities would find that a
"mitigating factor" in her case. He would not let Ms. Tallchief
answer whether she would plead guilty, though she does not deny carrying out
the crime.
Joe Parris,
a supervisory agent for the F.B.I. in Washington, declined to comment on her
brainwashing statement. A spokeswoman for the United States attorney here said
the office would have no comment.
Ms.
Tallchief said she decided to abandon her flight for the sake of her son, who
she fears will ultimately suffer consequences of her crime. The boy, she said,
does not have a legitimate birth certificate or other documentation and is
growing curious about her past and his.
"I
didn't give my child a normal life, but I think I am on the way to doing
that," Ms. Tallchief said in the taping of the video, which a Hollywood
producer, Robert Aaronson, is trying to sell to television networks and
studios.
Mark Clark,
a spokesman for Loomis, Fargo, said repaying the stolen money "would be a
nice gesture" but he declined to address the case in detail, saying the
company would "let it take its course."
Living
abroad, Ms. Tallchief said, she avoided Americans and did not socialize much,
to avoid people asking about her past.
"I've
learned how to not have so many close friends, so I don't get asked all the
questions," she said. "It's a lonely life, being a fugitive. And I
certainly don't go to, you know, book clubs and, you know, cake sales and
stuff. I don't have coffee morning with the girls."
Ms.
Tallchief's history is the subject of a screenplay that is being worked on.
A former
chairman of 20th Century Fox, Bill Mechanic, who produces films through his own
company, Pandemonium, in Los Angeles, said his company was finishing a script
based on the robbery.
For all its
dramatic potential, Ms. Tallchief's life on the run ended in anticlimactic
fashion. Accompanied by her lawyers, she entered the office of the United
States marshal at 9:29 a.m., sat on a couch and tapped her foot as officers
conferred and then, after about 20 minutes, led her away.
* * * * *
Robo-justice
Do we have
the technology to build a better legal system?
By Drake
Bennett
TOMORROW,
WHEN John Roberts appears before the Senate Judiciary Committee for the start of his Supreme Court
confirmation hearings, the senators will apply themselves to the futile task of
looking into the future. How might a Justice Roberts rule on an abortion case?
A school prayer case? A DNA profiling or human cloning case? For Roberts, who
has written few opinions during his brief tenure as a federal appellate judge, the
crystal ball is especially dim, but even the most explicit paper trail would be
no guarantee of his future
opinions.
That even
Supreme Court justices, the high priests of the constitutional order, can
recant and reconsider is as vivid a reminder as there is of the fundamentally
human nature of the law. From traffic court on up to the high court, our laws,
in all their power and complexity, are interpreted and applied by sometimes
fickle, always fallible people.
But what if
''John Roberts" were not a human being but a piece of artificial
intelligence software--a robot with the whole of law mapped out neatly in his
circuit boards? Granted, the resulting Roberts-bot would not offer the personal
charms of the wry, unflappably affable human Roberts.
But
consistency, predictability--surely those count for something. Computer judges,
of course, aren't going to be ascending to the bench in the foreseeable future.
''Nobody thinks that's a good idea," says Carole D. Hafner, a Northeastern
University computer scientist and pioneer in using artificial intelligence to
study the law. Judging, and most
especially
Supreme Court judging, is a complex and subtle mix of imagination, acuity, and
political calculation. Still, at a time when doctors are starting to use
software to aid in their diagnoses and when hedge funds are using computer
models to make multibillion-dollar nvestment decisions, there is growing
interest--even in an American legal
establishment usually resistant to change--in finding ways to
incorporate artificial intelligence into the law.
In the last
few years, as a number of studies, and even a few commercially available
products, have set out to demonstrate how our increasingly powerful computers
can assist in the practice of law, the computer scientists and legal scholars
who work in this small, emerging field believe they are doing something
revolutionary: making the legal system
more
transparent, more efficient, and more fair.
. . .
Put simply,
artificial intelligence is the branch of computer science that deals with
getting machines to think like human beings. Its application to the law dates,
in its earliest form, to the 1950s, when mathematicians first tried to use
formal logic to model legal reasoning. Enthusiasm about its possibilities
reached a peak in the 1980s, with suggestions that computers might soon be
arguing cases, or even deciding them. But when those predictions proved hugely
premature, the field's reputation
suffered.
Today, true
AI of the Hal 9000 variety remains the stuff of space operas, but programmers
have started incorporating some forms of machine intelligence into software,
giving it the ability to reason and learn in a rudimentary way. Once again, the
law--with its web of rules and its gradations of interpretation--has provided a
tempting target for computer scientists looking for ways to explore human
logic. According to
Northeastern's
Hafner, ''the law fascinates computer scientists interested in understanding
how people argue." Many see in it, she says, ''a model that applies to
human decision-making more broadly, that might be applied to understanding how
people argue with themselves when they have to make a decision."
Some of the
fruits of this fascination, however, have been decidedly practical, from
intelligent document retrieval systems that use fuzzy logic to search not just
by keyword but by concept (the only AI application widely used in American law
firms) to programs that predict the outcomes of court cases or evaluate potential
clients.
The computer
scientists John Zeleznikow of the University of Melbourne and Andrew Stranieri
of the University of Ballarat, for example, have developed two pieces of legal
software currently in use in their native Australia. One, SplitUp, calculates
with impressive accuracy the likely results of divorce proceedings--its effect
has been to encourage settlements, thus preventing unnecessary litigation.
Another, GetAid, is
used by an
Australian government agency to appraise applicants for legal aid--a
complicated calculation based on employment history, household income, the
likelihood that the case will be won, and myriad other factors.
For
Zeleznikow, such programs promise both to make lawyers more efficient and
untangle a court system that's tied up in endless administrative procedures.
Much of the work done by lawyers is the application of relatively
straightforward statutes or the drafting or relatively standard documents,
tasks that Zeleznikow and other similarly minded programmers believe can easily
be handled by today's AI. The aid applications that GetAid now reviews,
Zeleznikow points out, used to take up the vast majority of the aid agency's
time and money. ''So now, rather than have a lawyer dealing with 100
applications a week, they're only having to deal with about 20 applications a
week. Eighty percent of somebody's time that used to be processing applications
now can be turned to trying cases."
But some
supporters present AI-based legal applications not only as a lawyer's tool but
a lawyer's surrogate. Some, like Zeleznikow, point out that since AI won't
approach the abilities of a human lawyer anytime soon, this isn't a threat to
the legal profession. (Zeleznikow, for one, is also careful to protect human
agency in the design of his programs: GetAid, for example, can only approve
applicants, passing along the rest to a lawyer to deal with.) Even crude AI
legal advice is better than nothing, the argument goes, and could help level
the playing field in the many cases where one party can't afford legal advice
at all. ''Really the worst thing about the legal domain, and it's more serious
in the US, is the actual cost," says Zeleznikow. ''Not everybody has
access to a lawyer, especially access to an expensive lawyer."
But Marc
Lauritsen, president of the Massachusetts-based legal technology consultancy
Capstone Practice Systems, believes that AI's foray into the law will usher in
a period of healthy tumult. ''We're just at the beginning of something that's
going to disrupt the comfortable legal profession," he says. He points to
online companies like Legal Zoom that offer basic interactive contracts for
everything from patent filings to prenuptial agreements. They're the precursor,
he says, for a whole new sort of lawyerless law firms, ''organizations out
there saying, 'Hey, you don't need a lawyer, come to us and we'll take care of
it."' As legal software gets more sophisticated, he believes, it will eat
more and more into the work of lawyers.
One current
area of interest for programmers, according to Northeastern's Hafner, is
designing programs that could not only draft contracts but enforce them: ''If
the contract is represented in computer-understandable terms and the transactions
take place online," she says, ''there is the idea that the computer could
monitor compliance."
In such an
imagined future, legal advice would become a commodity. As Richard Susskind,
the information technology advisor to the Lord Chief Justice of England, wrote
in his 2000 book ''Transforming the Law," ''I envisage in the world to
come that much of the lawyer's work will shift from being advisory in nature to
becoming, in large part, a form of information service.... Much of today's
conventional legal work will be systematized, routinized, and proceduralized." Customers
could shop around for legal advice, that is, the way they now hunt for a good
mortgage.
And, while
computers aren't likely to replace judges, they might end up restraining them.
Uri J. Schild, a computer scientist at Bar-Ilan University in Israel, has
developed a software system that weights the importance of previous crimes to
aid judges in criminal sentencing. It's only a tool, Schild acknowledges, and
it promises to take some of the caprice out of the process, but it's easy to see how its
adoption in the United States might strengthen those politicians currently
pushing for stricter federal sentencing guidelines.
For
Susskind, though, the liberty of judges is not the point. ''I belong to the
school that thinks the law should be as reliable as possible," he said in
an interview. If AI makes the law more bloodlessly uniform, he argues, so much
the better: ''You should find out with almost unerring accuracy whether what
you're saying or doing is within the scope of the law."
It's a high
standard, and may not be humanly possible. Whether it's nonhumanly possible
only time will tell.
* * * * *