What Serwer, Yglesias, and Steve all said. If the administration is really going to go with a military tribunal for KSM, it's bad on the merits and bad politics. One could hold out some optimism based on the relative thinness of the story, but like Ackerman I'm not optimistic.
...more on the merits here.
You may remember the case in which the Texas sentenced a man to death after a trial in which the judge and prosecutor were literally in bed together, and the state's abominable appellate courts created a series of transparent procedural Catch-22s to insulate the state from its gross violation of due process. Earlier in the week, the Texas courts threw out his death sentence without addressing the central issue:
A Texas court threw out the death sentence on Wednesday of a man whose double murder conviction gained international attention because of revelations that the judge and prosecutor had had an extramarital affair.
But the decision from the State Court of Criminal Appeals did not mention the affair, focusing instead on whether jurors had been blocked from getting information that might have helped them deliver a less severe sentence.
[...]
The new opinion, on a separate writ, focused on whether the jurors should have been able to fully consider issues like Mr. Hood’s learning disabilities, and the fact that he had been gravely injured at 3 years old when a truck backed over him, crushing his legs.
Such questions about jury instructions are an area of legal dispute that has bounced from state courts to the United States Supreme Court and back over the past 20 years. Chief Justice John G. Roberts Jr. has called the result “a dog’s breakfast of divided, conflicting, and ever-changing analyses.”
With the equivalent of a textual sigh, Judge Cathy Cochran wrote in the Texas court’s majority opinion that, “We wade once more into the murky waters” of jury instruction; and the majority ruled that Mr. Hood deserved a new hearing on the question of punishment.
For the second time this week, the Supreme Court issued a ruling applying its famous Miranda ruling. A lower court had ruled that because two years had elapsed between a suspect first invoking his right to ask for a lawyer and his decision to waive his Miranda rights and admit a crime, his confession was admissible. This holding is reasonable, and the fact that crime he confessed to was molesting his 3-year-old son made the outcome overdetermined: the Supreme Court's unanimously held that the confession was admissible. The Court also held that an initial invocation of Miranda rights essentially expires after 14 days.
Two concurrences in the case, however, point to an interesting issue about how to apply broadly-worded constitutional rights. When applying a right like the Fifth Amendment's right against self-incrimination, some (often called "minimalists") argue that appellate judges should issue narrow rulings based on the particulars of a case, while others argue that appellate jobs should create clear rules that will govern a wide array of cases. Antonin Scalia is the Court's strongest advocate for creating "bright-line" rules that minimize judicial discretion. (It should be noted that this doesn't make preferring non-minimalist jurisprudence is inherently "conservative"; Miranda itself is also an example of the Court replacing a standard that gave wide discretion to other judges with a relatively clear rule.) Scalia's position is attractive in many respects, and all things being equal I'm inclined to agree that it's preferable for the Supreme Court to set rules that are as clear as possible.
The twin concurrences of Stevens and Thomas, however, do point to a paradox inherent in Scalia's approach. One of the most important selling points of creating clear rules is that giving excessive discretion to lower court judges can make their rulings essentially arbitrary. One of the most significant drawbacks to the approach is that the rules themselves can be arbitrary; as Thomas argues, the Court "does not explain why extending the Edwards presumption for 14 days following a break in custody—as opposed to 0, 10, or 100 days—provides the 'closest possible fit' with the Self-Incrimination Clause." And the potentially arbitrary nature of the rule can be seen by comparing the opinions of Stevens and Thomas. The former argues that the 14-day period is probably too short and fails to consider other relevant factors, while Thomas at least implies that invocations of Miranda rights should expire as soon as custody is broken. This isn't to say that the Court's decision to create a clear rule is wrong, just that any means of applying a general right to specific cases has its strengths and weaknesses.
Some thoughts on the Miranda-application ruling handed down today.
Read more...People arguing that civilian trials are never appropriate for terrorist suspects are arguing from a position well to the right of the Bush administration (at least the 2006 version.) And if you have less respect for due process than the Bush DOJ...I think this point makes itself.
Read more...Both Adam Liptak and Lyle Denniston see, after Tuesday's oral arguments, a strong cross-ideological consensus (excluding John Paul Stevens) that the "honest services" statute often used to prosecute corruption cases is unconstitutional. My first reaction, admittedly, is to ponder the cynicism of the Court's right flank; it's hard to imagine Roberts and Alito, in particular, caring in the least about vague statutory language or the arbitrary application of criminal statutes in cases where the defendants weren't frequently rich white men in suits.
Regardless of their motivation, though, and despite the fact that I have less than no sympathy for Conrad Black, I have to say that the arguments that the statute is constitutionally vague strike me as quite convincing:
See also Scott Horton, who notes some of the highly flimsy prosecutions brought under the statue. The whole area of law is an object lesson of how vague statutory language is an open invitation to prosecutorial abuse, and the fact that some bad people have been caught in the web doesn't change that. The government may need additional tools to prosecute corruption (although note that Joe Bruno was convicted for good old-fashioned mail and wire fraud, not on the vaguer charges), but the statutory language really does need to be more specific. Read more...Justices across the court’s ideological spectrum took turns on Tuesday attacking the law as hopelessly broad and vague.
Justice Steven G. Breyer estimated that there are 150 million workers in the United States and that perhaps 140 million of them could be prosecuted under the government’s interpretation of the law.
Complimenting the boss’s hat “so the boss will leave the room so that the worker can continue to read The Racing Form,” Justice Breyer said, could amount to a federal crime.
This gets it right. Obviously, trying to pose as defenders of the rule of law when you believe that the government needs to be doing a lot more arbitrary detention and torture is going to lead you to a lot of illogical arguments, but I'm especially amused by the "if prosecutors have good evidence, it's like you're not having a trial at all!" routine.
Read more...Lithwick does a good job of summarizing the issues surrounding upcoming oral arguments about whether the 8th Amendment proscribes life-without-parole sentences for juveniles, but one set of facts under consideration raises another set of questions:
Terrance Jamar Graham tried to rob a restaurant with two accomplices. He was charged as an adult and pled guilty. When he violated probation, Graham was sentenced, without trial, to life without parole. He was 17. In both cases the sentencing judges were certain these boys were beyond hope or help.
You may remember, in one of the worst slippery slope arguments ever, school district lawyers objecting to the Supreme Court's salutary decision in Safford School District v. Redding because it might inhibit school administrators from conducting humiliating searches of young women based on pitifully weak evidence that they have committed trivial offenses. Uh, I think that was the point! Dahlia Lithwick identifies something similar in yesterday's oral arguments from lawyers arguing that prosecutors who locked two innocent people up for 25 years based on willfully fabricated evidence should have absolute immunity from suit:
Katyal clarifies that "absolute immunity doesn't exist to protect bad apples. It reflects a larger interest in protecting judicial information coming into the judicial process." He says, "If prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence."
But Sotomayor retorts that you want a prosecutor to "flinch when he suspects evidence is perjured or fabricated." In fact you want him to do more than just flinch. You want him to stop. She adds that the two prosecutors in this case were never disciplined for their conduct.
As Orr says, "see how many times you have to remind yourself that this man was Willingham's defense attorney:"Now, via Ta-Nehisi Coates, I see that Willingham's defense attorney, David Martin, has been interviewed by CNN's Anderson Cooper, and his belligerent insistence on Willingham's guilt is, if anything, more shocking than Jackson's blase acceptance of having sent a man to death on the basis of faulty evidence.
Martin, who is in no way a trained arson investigator--let alone a fire scientist--explains that he bought some carpet, poured lighter fluid on it, and set it aflame and it looked "just exactly like the carpet in Todd Willingham's house." On this basis, he concluded, "There was no question whatsoever he was guilty," adding, "That's why they found him guilty, I think, in under 30 minutes." (The quality of his defense obviously couldn't have played a role.)
A couple news items on Texas's murder of Cameron Todd Willingham. First, Chris Orr points us to this video of Willingham's prosecutor, John Jackson, reiterating his theory that although we no longer have any idea if a crime was committed we can be sure that Willingham was guilty:
Hey, sometimes your horoscope comes true, and that's good enough for a death penalty conviction!
Meanwhile, Rick Perry continues to assiduously cover up the murder he committed, firing more members of the insubordinate state commission who have the strange belief that murders of innocent people should be investigated. And while I doubt anybody enough here is naive enough to buy Perry's explanation, but just in case Perry pressured the chairman of the commission before firing him. And, amazingly, Perry's actions may well be politically beneficial.
Murderer
Not surprisingly, in response to a Forensic Science Commission that had the temerity to hear evidence about the execution of an innocent man he allowed to proceed after a less-than-cursory review, Rick Perry has responded by firing three of the insolent subjects who might bring actual evidence to bear against his royal prerogative to arbitrarily kill people. But, don't worry, he's convinced about the evidentiary value of tarot cards astrology arson analysis that can't distinguish between intentionally set and accidental fires. And, besides, evidence of arson is beside the point:
Even without proof that the fire was arson, [Perry] added, the court records he reviewed before the execution of Cameron Todd Willingham in 2004 showed 'clear and compelling, overwhelming evidence that he was in fact the murderer of his children.
Murderer
My answer starts with the 1996 Antiterrorism and Effective Death Penalty Act, which President Bill Clinton signed in the wake of the Oklahoma City bombings. The Supreme Court also gets a share of the blame for the noose-tightening way in which it interpreted AEDPA. Justice Antonin Scalia has led this charge and went so far as to write recently, in the appeal of Troy Davis, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” But more centrist justices also lined up on the side of "finality"—the idea that there is value in closing the doors of due process. Grann quotes Justice Sandra Day O'Connor, who wrote in a 1993 case that the "execution of a legally and factually innocent person would be a constitutionally intolerable event." But in that case, Herrera v. Collins, O'Connor ruled against the defendant. And that is one of a string of rulings from her that made it more and more difficult for defendants to bring to light new evidence and to get the courts to pay attention to flaws in their convictions. Cameron Todd Willingham is dead because of a bad and abstruse law and a series of even worse legal rulings from our high court.
It's always difficult to figure out what's going on from news reports regarding a criminal investigation, but this story raises a lot of questions.
First, why isn't Zazi being charged under one of several very broadly-worded federal anti-terrorism statutes? If, as the FBI asserts, Zazi admitted attending courses "at an al-Qaeda training facility in the FATA (tribal) region of Pakistan" and that "he received instruction from al-Qaeda operatives on subjects such as weapons and explosives," those are very serious crimes -- far more serious than giving false statements to investigators.
Second, the crime with which Zazi, his father, and the NYC informant have been charged with is essentially a form of obstruction of justice. But the federal statute that supposedly criminalizes this conduct is a textbook example of a law that's subject to abuse by overzealous prosecutors. Obstruction of justice at its core involves acts like witness tampering, intimidation, and the like. But a catch-all provision in the statute allows making false statements to an investigator to be treated as a free-standing crime.
Note that when they agreed to submit to questioning none of these people were under oath, or had been charged with anything. The "crime" they have supposedly committed is that of giving inaccurate statements to investigators. Meanwhile the investigators are free to lie with impunity to the people they interview.
Third, this kind of case appears to illustrate how easily civil libertarian and due process concerns can get tossed out the window when the magic word "terrorism" is invoked. From what's been reported there appears to be no solid evidence of an actual plot of any sort, or the existence of real weapons, or indeed anything beyond some suspicious movements and conversations. This probably explains why the suspects haven't been charged with any crime other than that of failing to cooperate appropriately with their interrogators. (Note too the absurdly transparent pretext that Zazi's rental car was stopped by the NYPD as part of a "random drug stop.").
Now of course it's always possible that Zazi is part of an actual Al Qaeda cell of some sort, as opposed to say a clownish amateur who hasn't done enough to be charged with a real crime. But then he ought to be charged with one.
For less encouraging news about state judiciaries, we can turn to the state of Texas, where a man was sentenced to death in a trial in which the prosecutor and presiding judge were having an affair. You don't have to be a legal scholar to see the, ah, rather obvious due process problems with a trail in which the state's representative is literally having sexual relations with the allegedly neutral arbiter, and indeed even the Texas Court of Criminal Appeals can't quite bring itself to deny it. Rather, it falls back on the tool so beloved by reactionary jurists everywhere, the arbitrary procedural Catch-22:
But Wednesday’s decision overturned the findings of a district court judge who had found that Mr. Hood should be allowed a hearing on a new trial. The decision did not discuss whether the affair had prejudiced his first trial; instead, the court rejected Mr. Hood’s claim on the ground that he should have raised it when he first appealed his 1990 conviction.Yes, if Mr. Hood wanted to contest his unfair trial, he should have acquired a time machine, obtained the evidence that emerged 18 years later, returned, and presented it to the courts. If he was too lazy to do that, we can't help him. The logic is impeccable.
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