Under the Sixth Amendment's Compulsory Process Clause, "In all criminal prosecutions, the accused shall enjoy the right to ... have compulsory process for obtaining witnesses in his favor ." This is an important right.
Imagine you are charged with a crime. Someone knows that you did not commit the crime, but the person is unwilling to testify in court. Under the Compulsory Process Clause, you may force them to present this favorable testimony.
In practice, however, this important right is dead.
In a recent case I briefed, here's what happened: A was charged with drug crimes. B had evidence that A did not commit some of those drug crimes. B has his own problems, and the testimony he has that would be favorable to A, would incriminate him. Thus, if B is subpoenaed, he will refuse to answer questions on the ground that it might incriminate himself.
So you have a constitutional conflict between A's compulsory process rights, and B's self-incrimination rights. Under existing law, self-incrimination trumps compulsory process.
Prosecutors, of course, love it when this happens. Here's what they do: They wait until A's trial is over before reaching a plea deal with B. That's some sleight of hand.
You see, if the prosecution had made a deal with A before B's trial, then A could be subpoenaed. After all, B can't incriminate himself when he has already plead guilty to the crimes he would admit in his testimony. Thus, the prosecutor puts the deal on ice until A's trial, in order to deprive A of B's beneficial testimony.
Doesn't that seem really unfair? Something similar happened to Ken Lay, too.
There were several witnesses who could have provided exculpatory information for the defense. But these witnesses were put on ice by federal prosecutors. "You are still a target," prosecutors told them, thus ensuring that they would not put a bulls-eye on their chests by testifying for the defense.
More alarmingly is that prosecutors resisted defense efforts to provide witness immunity to the witnesses. "We are still considering prosecuting those witnesses," prosecutors wrote in court motions.
Of course, everyone knew - and knows - that prosecutors were not really going to prosecute any of those potential defense witnesses.
When prosecution tricks deny defendants favorable witness testimony, there's a serious constitutional crisis.
David Latt, of Article III Groupie fame, has started a new blog called "Above the Law," which is a legal tabloid - the Us Weekly of lawyers. There are already several interesting posts up. Check it out.
Among credible bloggers is a certain code of conduct. One thing bloggers don't deal is "plagiarize" or "steal" posts -- this is "post theft," and it will quickly destroy a blogger's credibility. So if a a blogger sees a post at another blog, she doesn't blog about the same topic - pretending as if she came up with the post idea on her own. Indeed, if you see a link to an outside source, e.g., a news story, at another blog, you give credit to the blogger who found the source - hence why you often see a "hat tip" at the bottom of a blog post.
Yet one thing I and others have noticed is that often you'll read a blog post on a popular blog, and the next day-or-two, see the post turned into a story on another legal website. In one post of mine, I came up with an idea never seen discussed elsewhere. A bit later, someone had turned my post into a story on Findlaw's writ - with no attribution to me, of course.
The latest victim of story theft seems to be Amber Taylor, who started a discussion on her blog, and offered unique insights into a topic that became a story in the New York Times. Yet Ms. Taylor received no attribution - or even a thank-you note. That seems pretty lame to me.
When reporters turn blog posts into stories, they should acknowledge the blog they took the idea from. If this isn't yet required as a matter of journalistic ethics, it should be mandated under the rules of human graciousness.
Stuart Taylor has this devestating critique of the recent New York Times story on the Duke LaCrosse rape case:
Imagine you are the world's most powerful newspaper and you have invested your credibility in yet another story line that is falling apart, crumbling as inexorably as Jayson Blair's fabrications and the flawed reporting on Saddam Hussein's supposed WMD. What to do?
If you're the New York Times and the story is the alleged gang rape of a black woman by three white Duke lacrosse players—a claim shown by mounting evidence to be almost certainly fraudulent—you tone down your rhetoric while doing your utmost to prop up a case that's been almost wholly driven by prosecutorial and police misconduct.
Mr. Taylor's full piece is available here.
This interesting article discuses how a computer hacker helped United States authorities catch a child pornographer. The story presents an interesting issue: Should a computer hacker, who is not acting at the behest of the United States government, be prosecuted for hacking into a child pornographer's computer? Does the hacker's intent make a difference to your analysis? That is, is there a moral difference between the hacker who installs spyware into a computer in an effort to find bank records, but who then finds child pornography; and a hacker who installs spyware solely to find child porn?
You don't need to watch any television news tonight, as I will summarize what the talking heads have said, and what they will say:
When Karr initially made his confession, defense-orientated commentators said: "This is proof that JonBenet's parents were wrongly tried in the media!" In light of Karr's confession being disproven, they will say: "This is proof that false confessions occur!"
Prosecution-minded folks, when Karr was initially arrested, complained of the yummy food and decent treatment he received on his return flight from Thailand. Now they will say: "This pervert, who was previously prosecuted for child pornograhy and likely molested little girls in Thailand, has used the criminal justice system for his own sick gain!" All that really means is this: Karr is, and always was, innocent of killing JonBenet. I guess he wasn't treated so unfairly good, after all.
I don't care for television-legal "analysis" precisely because it's all spin. If false confessions are such a problem, then why, when Karr's confession was initially made public, was the focus on JonBenet's parents unfair media treatment? Why didn't defense commentators say, "This confession means nothing." Instead, the commentators used Karr's confession as a way to score points in the did-JonBenet's-parents-kill-her debate. Now that the confession has been invalided, defense commentators will use this as a way to score points in the false-confession debate.
Ultimately, that's all legal analysts seek to do: score points. And if the truth has to be substituted out to score a point, well then, they will bench the truth.
CNN is reporting that the Boulder State's Attorney's office is dropping charges that John Mark Karr murdered JonBenet Ramsey. The announcement came within a hour of an announcement that DNA found at the crime scene did not matach Karr's.
Karr may have perhaps hoodwinked the world. Just as Thai authorities were swooping down upon him, he bought a one way ticket out of the country. Shrewd.
Here's a tip for travelers. If you are ever jammed up overseas simply claim you killed Jimmy Hoffa. It might get you a one-way ticket home.
In the meantime, can someone please be sure that Karr doesn't profit from all this?
People never confess to crimes they did not commit. What, never? No, never!
UPDATE: Funniest observation I've heard (I wish I had thought of it): How will Nancy Grace, who has never lost a trial, convict John Mark Karr in the media? Tune in tonight to see!
-- DNA found on JonBenet Ramsey's body does not match sample DNA from suspect John Mark Karr, Denver, Colorado's KUSA television station reports.
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Oops! What will he think of next?