On August 17, 2006 the Hon. Anna Diggs Taylor handed down her opinion
invalidating President Bush's Terrorist Surveillance Program (TSP)- a
secret government program under which the government conducts
warrantless surveillance of telephone calls from persons in the United
States to persons abroad suspected to be terrorists. The reaction to
the decision has fallen squarely down party lines. The Democrats hail
the decision as a "rebuke" to Bush's programs and the Republicans decry
it as a political swipe at Bush designed to hamper his ability to win
the war on terror.
If one reads Judge
Taylor's decision, and takes the time to understand the law, it becomes
clear that the decision is neither. It is the correct decision arrived
at though a flawless process of legal reasoning. The plaintiffs in the
lawsuit are indisputably "persons" protected by Title III of the
Omnibus Crime Act and by other federal law. These laws make no
exception for times when protected persons are talking to terrorists
either here or abroad. The law, almost without exception, requires a
warrant before the government may intercept any such electronic
communications. Judge Taylor's decision was hardly a political swipe at
President Bush. It was a decision mandated by the law and any different
holding would have been intellectually dishonest and motivated by
political expedient. In other words, it was the difficult but correct
decision.
This, of course, does
nothing to address the wisdom of the present law. When a law is no
longer suitable Congress possesses the power to change it. When a law
is a hindrance to the executive, though, he is not free to simply
ignore it. This is what President Bush has done. Rather than seek to
change a law that hinders his ability to defend the United States from
terrorists he appears to have simply ignored it.
Bush has attempted to
justify his violation of the law by claiming that our country is in a
war and that he possesses the power to gather intelligence on "enemy
combatants" regardless of the Bill of Rights or the federal statutes.
He claims that the TSP is necessary to protect American lives from
terrorist attacks.
He may be right.
There should be a
full but expeditious debate on how Title III might be amended by
Congress to permit the President to efficiently gather the intelligence
necessary to foil terrorist attacks. An over-arching concern in this
debate, though, ought to be that George Bush will not always be the
President and our country will not alway be at war with terrorists.
Congress should be careful not to be the fools who rush in- it must be
careful in how it defines domestic "enemy combatants", and even more
careful in the exceptions to the warrant requirement that it carves out
for the executive. It takes little imagination for some future abusive
executive to label political critics of the government as "enemy
combatants" and subject them to the warrantless interception of their
telephone calls by the government. If that occurs, we will have learned
nothing from the abuses King George III, and will not the terrorists
have succeeded in destroying America after all?
April 17, 2006
Spengler, Masarik, and Bartlett are not guilty. This hardly means that they, and the Milwaukee Police Department, are innocent.
Our
founding fathers believed that it is far better to fail to convict ten
guilty persons than it is to convict even one innocent person. This is
why the constitution is written heavily in favor of the defendant- and
each of us should be thankful that it is. As the Frank Jude case
demonstrates, we have far more to fear from the government than we have
to fear from common criminals.
Certainly,
the jury cannot be criticized for finding these men not guilty. The
crime against Jude occurred in the middle of drunken bedlam. Those
professionals who know what really happened adhered to some juvenile
"code of silence." The bottom line is that there was not much clear
evidence of who was doing what. This rarely amounts to evidence beyond
a reasonable doubt. They had to be found not guilty. It is a mistake
and it is counterproductive to conclude that the verdict is in any way
related to race.
In the constitution, though, the founding fathers also provided for a public
trial. Most assume that this is, once again, another protection for the
defendant intended to avoid secret star-chamber proceedings. This may
be. In practice, though, quite the opposite frequently occurs. This
trial was very public indeed and, unlike the government, the public is
not bound by the standard of proof beyond a reasonable doubt. We can
draw our own conclusions. We may act on those conclusions. We are not
bound to walk around like ignoramuses pretending that Spengler,
Masarik, and Bartlett, and the Milwaukee Police Department, are
blameless because of the not guilty verdicts.
Here
are my conclusions: (1) Frank Jude did not trip and smash his face, nor
did he resist arrest in any way that warranted the beating he suffered;
a culprit did not drop out of the sky and beat Jude and then disappear-
he was beaten by one or more Milwaukee police officers; (2) There are a
number of Milwaukee Police officers who know who did the beating and,
contrary to their sworn oath as a peace officers and contrary to the
oath administered to witnesses in court, they told bold-faced lies in a
very public way about who was involved; (3) The decision to lie in this
way is based upon a very disturbing corruption in their character.
In
an earlier article I quoted Lord Acton who said, "All power corrupts
and absolute power corrupts absolutely." The most effective way to
breed lawlessness in the public is for the government to behave
lawlessly. The corruption of character demonstrated by a number of
Milwaukee Police officers during this trial is caused, I think, by
their perception of power. This lawless behavior had many in the public
seriously considering a lawless reaction- riot.
The thing to do then, is for the public to address this perception of absolute power that many police officers possess.
Judges
need to stop making findings of fact in contested cases as though
police officers are truth-telling machines in blue. Police officers, as
human beings like the rest of us, lie no more and no less than any
other group of people in the community. In arguing an issue of
credibility prosecutors love to ask rhetorically, "Why would this
police officer risk his career by lying?" The answer, of course, is
that until now there has never been any risk- judges simply accepted
whatever the cop said. This cannot help but foster a belief of absolute
power in the officer.
Juries need to do the same thing when they listen to the testimony of a police officer.
The
"New Media" (the Rush Limbaughs and the Mark Bellings of the world)
need to stop pretending that the Bill of Rights is some anachronistic
set of principles that operate to protect the "bad guys" and that are
inapplicable to the modern world of terrorists and drug dealers. The
Bill of Rights and the exclusionary rule (the rule that keeps out of
evidence illegally seized evidence) protect mainly the innocent by
deterring rogue cops from ignoring the rules.
The
tragedy of Frank Jude illustrates for us the real-life consequences of
absolute power in the hands of the government. For Spengler, Masarik,
and Bartlett the system operated as it should and they were found not
guilty. This is not the tragedy. This is the good news. The tragedy
would be for the community to fail to learn the lesson that this very
public trial taught us. The great thing about a democracy is that we
get the government we deserve.
January 6, 2006
It
is not unusual for me to disagree with E. Michael McCann's charging
decisions; therefore, when I agree with one I feel obligated to mention
it. Yesterday McCann's office announced that it would criminally charge
the Wauwatosa man who started the melee that took place in front of the
Wauwatosa Police Station with Michael McGee, Mini McGee, and their
minions. No criminal charges would be filed against any of the other
participants- though a number of them are facing municipal citations.
The
charging decision was the right one because the Wauwatosa man clearly
lit the match in what was, to that point, a peaceful though verbally
agressive demonstration.
Though the correct one, the charging
decision is remarkable because it is a marked departure from McCann's
usual charging standard in cases like this. The well-worn standard of
McCann's office in dealing with such situations is usually to villify
the winner of the fight with criminal charges and to wrap the loser in
the swaddling clothes of victimhood, regardless of whatever outrageous
provocation the "victim" may have engaged in- complete with the right
to come to court and to encourage the judge to sentence the villain the
maximum prison term available. An example of this is Charles Barkley
who found himself villified because he gave a fat lip to a drunken ass
on Water Street who called him a nigger. In Milwaukee County you never
want to win a fight. If you know what is good for you, take a dive in
the first round and call the police. You might want to give yourself a
bloody nose for good measure. You will be pleased with the red carpet
treatment you get at the courthouse.
All of this, of course,
begs the question of what it was about this situation that made McCann
deviate from his usual "violence is never the answer" principle? A
coward will avoid confronation at all costs- which is why McCann
consistently sides with the loser in a fight. This is just another
example of a coward avoiding confrontation with the McGees even if it
is at the cost of his principles.
November 25, 2005
It is a dangerous business opposing any law that, at least nominally, is intended to protect children from violent sex offenders. But it is just this sort of fear that allows otherwise good people to go along with profoundly bad ideas. "Jessica's Law" is one such proundly bad idea.
“Jessica’s Law” — a bill named for a Florida girl who was raped and killed by a repeat child predator — was approved by the Assembly in an 82-13 vote and mirrors legislation passed in Florida as a result of Jessica Lunsford’s assault and murder.
The bill would create a mandatory prison sentence of twenty-five years for sex offenders who commit first- and second-degree sexual assaults of children where violence or coercion are used.
At first blush it sounds like a good idea. Who has any affection for sex offenders who prey upon children? Who cares if they spend a minimum of twenty-five years in prison?
A good clue that this is a bad law, though, is that both of the state-wide organizations of prosecutors have opposed the law. It is a good bet that the judges and defense lawyers in this state do not like it either.
The general public may have the impression that most criminal cases are cut and dried- that the system works for the most part flawlessly. In other words, those convicted of crimes are usually guilty. To be sure, those convicted of crimes usually are, in fact, guilty.
But the number of innocent people convicted in our criminal courts is far greater than what most lawyers, judges, and the media are willing to admit. On top of that, the cases that result in the most wrongful convictions are sexual assault cases- and, in particular, sexual assault of children cases. This is a very easy allegation to make and it is a very diffult crime to prove beyond a reasonable doubt. There are usually only two witnesses and one of them has little life experience and is very susceptible to suggestion- the suggestions of adults in their lives who may have a reason to want to ruin the life of, for example, a foster parent trying to adopt the child or of an ex-spouse seeking custody.
Thankfully, the overwhelming majority of sexual assaults committed on children do not involve kidnappings and death (as did Jessica's case in Florida). Any sexual "contact" with a child under the age of thirteen is first degree sexual assault of a child (i.e. this includes mere touching the the genitals if it is done for the purpose of sexual gratification).
Nonetheless, all first degree sexual assaults involving coercion, however slight, seem to fall under the ambit of Jessica's law. Most of these crimes come to light months, if not years, after they occur and the child's description of what occurred is ambiguous.
Prosecutors possess nearly unfettered discretion in making their charging decisions. The net result of a law that provides a minimum of twenty-five years in prison will have the effect of dramatically reducing the number of times it is charged. Where, as is frequently the case, the evidence is ambiguous it will not be charged. Where the "sexual contact" involved is comparatively minor (e.g. mere touching of the genitals) the crime will not be charged. Where there is reason to believe that an adult with a grudge has made suggestions to the child and the accused is a foster parent or ex-spouse the crime will not be charged.
In other words, people who are currently charged with first degree sexual assault, under Jessica's law would likely be charged with something far less serious.
This cannot be a good way to protect our children.
September 16, 2005
There is a saying that, if one is at home asleep in bed and is awoken by a shadowy figure creeping through the room, most people will hope it is the police. A lawyer will hope it is a burglar.
A lawyer knows that there is a good chance that the burglar will steal the television and leave. If the police are in your bedroom at night, and you did not call them, you are in serious trouble.
The point of this little story is that, throughout the world and throughout history, for every person who is murdered by a criminal there are, perhaps, a thousand people murdered by governments.
The congressional hearings concerning the nomination of Judge John Roberts to the United States Supreme Court reminded me of this saying- but not in the obvious way. What made me think of this is the manner in which Judge Roberts is being questioned and the manner in which he answering. Judge Roberts likens himself to a referee. He does not make the law. He merely interprets it. The conservative committee members vehemently denounce what they call “judicial activism” or “legislating from the bench.”
It is very quaint for Judge Roberts to liken himself to a referee- but it is intellectually disingenuous. Without a doubt, the most important cases the Supreme Court decides are those cases involving the Bill of Rights in criminal cases. It is these decisions that have an immediate and profound impact on our daily lives. As interesting as the Commerce Clause may be to corporate executives it has little to do with the man-in-the-street.
The reason Judge Roberts’ analogy is intellectually disingenuous obvious when one reads, for example, the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches . . . .”
Obviously, the application of this exceedingly important law requires more than a referee. It requires a judge with a developed sense of what is reasonable.
The conservatives drone on-and-on about their love of “law and order.” In this they include their distain for any law or judicial ruling that “favors the criminals” or “hamstrings the police” in their efforts to find the bad guys. The net result, of course, is to transfer more and more power into the hands of the government. In the conservative mind, though, it is all worth it because the government will protect us, from cradle to grave, from the “bad guys”.
I have never understood why this is such a conservative mantra because in all other respects they pay lip-service to rugged individualism, personal responsibility, and small government. They eschew any economic dependence on the government. Dependence on the government for one’s “safety”, though, seems to be another question entirely.
I do not depend entirely upon the government to protect me from the bad guys. I do not fear the bad guys in the same way I fear the awesome power of our government.
We must depend upon the Supreme Court to protect us from the power of the government and, therefore, it is perfectly appropriate to ask Judge Roberts what he thinks is “reasonable” when it comes to searches and seizures. What amount of power is he willing to take from the people and put into the hands of the police?
This issue is not new. In fact, it is perhaps the oldest issue facing government. One of our “founding fathers” said, “Those who give up essential liberties for temporary safety deserve neither liberty nor safety.” –Benjamin Franklin
And before him, “And remember, where you have a concentration of power in a few hands, all too frequently men with the mentality of gangsters get control. History has proven that. All power corrupts; absolute power corrupts absolutely.” -Lord Acton
Judge Roberts may be a perfectly qualified candidate for the Supreme Court. He may make a perfectly good Justice. He should begin, though, by being honest in his description of the role of the Supreme Court.
The justices are not referees. They are the conscience of the people of this country. What they believe to be “reasonable” is all that stands between us and a government that is corrupted by absolute power.
It can happen here.
August 28, 2005
Another march was held yesterday in the hopes of ending the violence in Milwaukee.
Perhaps the biggest obstacle our community faces in solving problems is that we consistently choose symbols rather than thoughtful action in solving those problems. These symbols demonstrate our collective outrage over the problem and they make neat media packages- “Zero Tolerance” in schools, the “War on Drugs”, and “Marches Against Violence.” War worked well when the enemies were nations with armies; it does not work at all when the “enemies” are our own young people. Marches worked great in the civil rights movement or in protest of the Vietnam War because those courses of action could be reversed with a stroke of the president’s pen.
Peace marches against gang violence in the inner city are nothing more than a well-meaning sham.
I have defended more homicide cases than I care to mention. As a consequence I have gotten to personally know many of the people who commit these crimes. Every case and every individual is different but it still possible to identify some common themes.
The defendants in homicide cases are usually young men (I have represented defendants as young a fifteen years old in homicides) and they typically have had almost no parental guidance in their lives. The lack of parental guidance has had all of the usual consequences: no importance placed on education, no restrictions on the natural tendency of teenagers to engage in risky behavior, and a remarkable lack of conscience. It is this last trait that is most disturbing to me.
I was discussing a homicide with a young man several years ago. The victim was killed in an alley after my client shot him with an AK-47 assault rifle in an argument over a small amount of drugs. We were going over the medical reports and my client seemed puzzled over the fact that the cause of death was reported as exsanguination (loss of blood). When I asked him what was wrong he said, “I don’t see how that’s my fault.” Now I was puzzled so I pursued it. The defendant pointed out, “He went right to the hospital.” Still puzzled. So then my client enlightened me, “They should have lots of blood at the hospital.”
This young man was very serious in his belief that, even though he had shot the victim with a military-style rifle, he was not responsible for the victim’s death. Responsibility for that, he believed, is found in the incompetence or neglect of the establishment (the police, the government, the hospital).
My client’s viewpoint is, unfortunately, emblematic of the community’s belief that the government must solve all problems.
Pastor Dwayne McAlister was interviewed by a Journal-Sentinal reporter at the recent march. McAlister was quoted as saying (Milwaukee Journal-Sentinel, August 28, 2005), "’Our purpose today is to send a message to political leaders: We have needs in the community,’ said McAlister, adding that the youths need to feel loved.”
"’Their fathers and mothers are missing,’ he said.”
Pastor McAlister accurately describes the problem. What is profoundly sad about the pastor’s comment, though, is the implicit assumption that the “political leaders” can somehow make the children feel loved (and disciplined, and protected, and socialized).
We have come to a new low-point in our history if, in addition to law-making and national defense, it has become the obligation of the government to make children feel loved.
I would be very pleased to never have to defend another seventeen year-old boy charged with homicide. I highly doubt that I will get my wish, though. The government cannot make children feel loved. The government can only offer education it cannot force the children to be educated. The government cannot instill in children a sense of community values. The government cannot closely supervise the risky behavior of teenagers.
Only parents can do that.
August 11, 2005
The seventeen year-old knuckle-head who jumped into the net at Yankee Stadium recently illustrates perfectly what is wrong with Chapter 938 of the Wisconsin Statutes- otherwise known as the Juvenile Justice Code.
Chapter 938 was enacted several years ago and the intended effect was to give the Juvenile Justice Code the "look and feel" of the Criminal Justice Code (i.e. the criminal law for adults). Prior to Chapter 938, juvenile delinquency was governed by Chapter 48 otherwise known as The Children's Code. In the Children's Code the paramount consideration is the "best interests of the child." Since Chapter 938 we have the spectacle of fourteen year-old children routinely appearing in adult court. Under some circumstances the adult court has original jurisdiction over these children.
Plainly, Chapter 938 was created in response to, primarily, gang violence where younger and younger children were involved in armed robberies and homicides. But with Chapter 938 the legislature has thrown out out the proverbial baby with the proverbial bath water.
We, as a society, have known for thousands of years that even good kids from good homes do unbelievably stupid things as teenagers. Some doctors even believe that they are physically incapable of good judgment because the portion of their brain which controls judgment is undeveloped until the child reaches their mid twenties. Just because we change the law does not mean that we can change the way teenagers think. General deterrence does not work with people who lack judgment and experience in life.
It's a good thing that the seventeen year-old Yankee fan did not jump into the net at Miller Park. All seventeen year olds are "adults" under Wisconsin Law.
August 5, 2005
As much as we may not like it, Dionny Reynolds must have a new trial.
Reynolds, as you may recall, is the young man charged with shooting and killing State DNE agent Jay Balchunas during a robbery last winter. At Reynolds' trial last week the jury deliberated for two days before it was discovered that only one juror was holding out for acquittal. The court and the parties learned this when the juror explained that she was feeling harrassed by the other jurors and that she had spoken to her daughter about this and the daughter gave her some advice. Thereafter the court excused the juror citing the juror's previous health complaints. Once the alternate juror began deliberating the jury shortly reached a unanimous verdict convicting Reynolds.
The Milwaukee Journal Sentinel reported yesterday that Judge David Hansher is inclined to grant a mistrial but has ordered the parties to submit briefs.
I was recently involved in the Theodore Oswald retrial and there was much carping by Waukesha County officials over the expense of the retrial and the hardship on the victims- and this despite the fact that many people thought that Oswald was obviously guilty. These concerns were real. The trial was very expensive and it was difficult for some of the victims to relive the event ten years later.
Nonetheless, I will paraphrase the United States Court of Appeals in its opinion affirming District Court Judge Lynn Adelman's order granting a new trial: To say that a defendant is not entitled to a fair jury because he is probably guilty is like saying that a defendant is not entitled to a trial at all because he is probably guilty.
The same is true of Reynolds. Although I have high regard for the integrity of Judge Hansher, and I am sure that he did not remove the juror simply because she was the lone wolf holding out for acquittal, it appears from reports that the court possessed this information at the time the juror was struck. Therefore, it sure looks to Reynolds like his one ally on the jury was purposely removed and then replaced by an alternate juror less convinced of Reynolds' innocence. In other words, the situation does not pass the smell test.
Eleven people were convinced that Reynolds was guilty beyond a reasonable doubt. So it is safe to say that he is probably guilty. But the integrity of our system requires more. Twelve people must be convinced and we must, at all costs, avoid the appearance of unfairness in the way we conduct criminal trials.
This is why Reynolds must have a new trial.
August 4, 2005
A little knowledge is dangerous.
CCAP is the Circuit Court Automation Project.In other words, it is the web site that contains the information for nearly every court case filed in the past ten years anywhere in the state.It is a treasure trove of information for busy-bodies everywhere.
Now Representative Marlin Schneider wants to significantly limit the information available on CCAP.The problem, though, is not with CCAP- everything on there is public information.The problem is with those who misuse the information.
I regularly receive calls from clients who are in a panic because, for example, they are about to lose their job, they say, because someone at the office has checked CCAP and believes that the person is confirmed wife-beater.Of course, when I check CCAP I find that, sure enough, the person was arrested and charged with battery- domestic violence related.But when I read further I discover that the case was dismissed.Or a client may call and exclaim that CCAP says they were convicted of a felony and YOU SAID THE CHARGES WAS AMENDED TO A MISDEMEANOR.Sure enough, when I check CCAP I find that the conviction was improperly reported as a felony.
This is not surprising since the the CCAP web site warns, "WCCA is not the official Judgment and Lien Docket."Additionally, it reads, "Notice to Employers:It may be a violation of state law to discriminate against a job applicant because of an arrest or conviction record.Generally speaking, an employer may refuse to hire an applicant on the basis of a conviction only if the circumstances of the conviction substantially relate to the particular job.For more information, see Wisconsin Statute 111.335 and the Department of Workforce Development's Arrest and Conviction Records under the Law publication."
It makes no sense to curtail the information available on CCAP because there are busy-bodies out there who do not understand the information they are looking at or who decide to use it contrary to law.The thing to do is to enforce the employment laws that are already on the books.The thing to do is to not make important decisions based on what you read on CCAP- you may not fully understand it or, worse, it may not even be accurate.
August 3, 2005
Last month, inState v. Jerrellthe Wisconsin Supreme Court held that, where feasible, police must video-record the interrogation of a juvenile who is being questioned at a place of detention.The Supreme Court ought to be lauded for this long-overdue rule.
Of course, the rule only applies to juveniles.For years at hearings on the admissibility of defendants' confessions I have been cross-examining Milwaukee police detectives about why the Milwaukee Police Department does not video-record interrogations in serious felony cases.The detectives always smugly reply, "That is not our department policy."When questioned as to why the Milwaukee Police Department would have such a policy the detectives either claim to be "just following orders" or they suggest that the detective bureau does not have the equipment.Another variation is that it is "too expensive."
In every single case where I have raised this issue the circuit court judge has drawn no inference from the fact that the interrogation was not recorded.
There is no way to characterize the rationalizations of these police detectives as anything other than what they are: prevarications.It is simply not true that the Milwaukee Police Department does not have, or could not easily and inexpensively acquire, digital recording devices.Law enforcement is somehow able to record thousands of intercepted cell phone conversations in any garden-variety drug conspiracy case.
The real reason for the policy is obvious.By law the courts must conduct a hearing into the admissibility of a defendant’s confession to police in every criminal case where the State intends to offer it.The issues at this hearing are whether the defendant was properly given the Miranda warning and whether the statement was freely and voluntarily given.Typically, the detective will take the stand at the hearing and will testify that he read the Mirandawarning to the defendant and the defendant, who the detective will characterize as being very cooperative and anxious to talk about the crime, agreed to tell the whole story.Then the defendant will testify.The story that the defendant tells is usually very different. Defendants will tell of promises to be allowed to “go home” if they cooperate, or threats to “take your children away” if you don’t talk.Some defendants even describe being physically abused.
The prosecutor will then sum up by arguing to the court that the detective ought to be believed because he is a veteran police officer and he would not risk his career by falsifying a confession or by lying to the court. The defendant ought not to be believed because he will say anything to get out of this situation and, after all, he already has anumber of criminal convictions.
This argument works.The courts almost always find that the statement is admissible.
I am certainly not naïve enough to believe that all defendants tell the truth.But I also do not believe that police detectives are always the friendly cop who is just trying to find out what happened.This is precisely why confessions must be recorded.If a defendant told me such a story of police abuse and trickeryand it did not appear on the recording I would immediately know who is telling the truth and the motion hearing would be very short indeed.Much of the court time currently wasted in hearings on bogus motions to suppress statements would be saved.
More importantly, though, if confessions were recorded we as a community could have much more confidence in those confessions that are used in court.Under the current policy of the Milwaukee Police Department I cannot help but wonder why the detectives deliberately fail to preserve the best evidence of the defendant’s confession (i.e. a video recording) and, instead, prefer to set up a credibility contest between a police detective and criminal defendant.
Why would a police detective lie about the circumstances of the defendant’s confession?Perhaps the better question is: Why not?In my experience no court has ever found in favor of the defendant in this credibility contest.There is no risk involved in the detective lying about the confession.This policy is a dark stain on the criminal justice system in Wisconsin and particularly in Milwaukee.
The material on this site is a product of the Law Offices of Jeffrey W. Jensen. Unless otherwise noted it may be used for any legal purpose with attribution.