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Constitutional Vanishing Point

We don't want illegal immigrants fouling our shores. We should all carry the same sort of driver's license, the better for our Government to keep track of us. We should expand the DNA databases used by law enforcement to include as many people as possible. And, when we don't want to play by the rules, we should whisk people off-shore to avoid giving them access to the courts.

This is what it feels like to be an American in this brave new world where every day is a fight against the murky forces of international terrorism. And for holiday cheer our new national anthem: "Jingo Bells."

The D.C. Circuit Court of Appeals voted 2-1 yesterday to uphold Military Commission Act of 2006. Thus, the administration can hold foreign nationals indefinitely so long as they are not held on U.S. territory. No habeas corpus for the darkies rendered to other lands for torture or worse. The act permits the military to decide just how much process these detaines are due.

Expect a Supreme Court challenge. The Court has twice in recent years rebuffed the administration for treating the detainees as legal outcasts. We proclaim our love of liberty and fair play to the world and then act like shame-faced hypocrites when a person seeking protection under our laws can't produce the proper identification card.

What next, a limitation of Fourtheenth Amendment claims to citizens? Of course, the constitution gives Fourteenth Amendment standing to persons aggrieved. But we're gravitating more and more toward a view that the benefits of law extend only to citizens. I can see the holding: "The plaintiff, an illegal alien, claims denial of equal protection of the law. However, his claim cannot stand. The Constitution is a compact binding people one to another. The people so bound share mutual rights and responsibilities under that contract. We hold, as a matter of logic and law, that an illegal immigrant is not a contracting party and therefore cannot avail himself or herself of this Amendment's remedies."

There is no sign that we are winning the war on terror. Al Qaeda is resurgent in Afghanistan; Iraq is a bloodbath. Our enemies seem emboldened and enraged by our policies and procedures. We've created a West Bank all our own in Guantanamo Bay. Comes next more suicide bombers, I suppose.

And then more retreat from an expansive view of the Constitution that views all people as equal and Government a mere limited means. At some point the terrorists will win. We'll look just like so much the rest of the world: Lawless and afraid both to venture outside our home and of the next knock on our door.


Activist Ninth Circuit Judges on "Dark-Skinned Folks"

"You know, I really don't care for dark-skinned people.  They tend to be too anti-establishment for me.  I'm pretty straight-laced, I follow the law, heck, I don't even speed.  I'm white, after all.  So I don't have many dark-skinned friends.  You can't trust those people." Are those racist statements?  Could any reasonable person conclude those are not racist statements?

If I made those statements, but later said, "I'm not racist," would you believe me? 

Oddly enough, five federal judges, viewing a Batson case (Batson makes it illegal for prosecutors to rely on race when selecting jurors)  involving similar statements, held that a court did not reach an unreasonable determination of federal law when it concluded that these were not racist statements.  You might not believe me, so I will quote the prosecutor's remarks.  When asked why he strike Native Americans from serving on a jury, the prosecutor said:

Ms. Rindels was the one darker skinned female from the regular panel or the group of seventeen that I challenged. My notes indicate that she was my second peremptory challenge.

***

My experience is that [N]ative Americans who are employed by the tribe are a little more prone to associate themselves with the culture and beliefs of the tribe than they are with the mainstream system, and my experience is that they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.

Pretty clear cut, no?  If it's not, please stop me.  Please make an argument why those statements are not racially and culturally biased.

If you're willing to take on that fool's errand, you're in good company: Five judges of the Ninth Circuit Court of Appeals concluded that the prosecutor who made those statements did not strike jurors based on race.  (Read pages 47-63 of this opinion.)

Can you believe it?  Five federal judges endorse race-based jury selection.  Granted, the judges dress up their arguments in the language of the Anti-Terrorism and Effective Death Penalty Act.  They use a lot of words like "deference."  But federal courts are not to defer to unreasonable state court rulings.  It is per se unreasonable to conclude that anything other than race motivated the prosecutor to strike those Native American jurors.

To be fair to the dissenters: It's likely not a racial animus motivating their opinion.  Rather, it's their passion (indeed, ruling passion) to ensure that rarely will a conviction be overturned.  As is well-known, alas, judicial activism is acceptable when it keeps people in prison.  Thus, no so-called "judicial conservatives" criticized the dissenters for attempting to engage in judicial activism.


Confirm Or Get Off The Pot: Try Westbrook

My political instincts are somewhere between nonexistent and wful, so the premise for this week's column may be off the mark. Its conclusion is not, however. So read on if you want to find a means of resolving the apparent impasse over the appointment of Vanessa Bryant to the federal bench.

Bryant has been lingering on the vine now for so long it looks as though she will never be confirmed. Since her nomination, she has been maligned by dozens of lawyers. Both the Connecticut Bar Association and the American Bar Association have rated her as not qualified for the task, an indictment based largely on the fact that she is not a cream puff on the bench. There are reports that several District Court judges are opposed to her confirmation.

Only six of 200 nominees to the federal bench have received the ABA's kiss of death since 2003. Four of those were ultimately nominated; two withdrew their names. Bryant shows no signs of withdrawing her name.

But neither does the Senate show any signs of acting on her nomination. She's been twisting in the wind for more than a year now. Either cut her down or confirm her, I say.

Of course, the politics of race and gender have created what amounts to psychic gridlock. You can't criticize a black woman in some circles without being accused of lynching someone. Playing the race/gender card is too easy. No one deserves a pass due to mere accidents of birth.

It would be a good thing to appoint a black female to the federal bench.

So if it is not going to be Vanessa Bryant, let me throw another name into the mix. This lawyer is well-suited in terms of education, intellect and temperament to sit of the federal bench. Her name is Dawne Westbrook, and, yes, she is a woman of color.

I've never heard a judge — state or federal — say anything but good things about this young woman. And I am in a position to have heard them. Westbrook was an associate in my former firm from 2000 to 2003. During that time, she tried more than 20 cases to a verdict in federal court. She is an experienced trial lawyer.

She is also a former hearing officer for the Commission on Human Rights and Opportunities. I met her in that role. She presided over an extremely difficult and contentious hearing involving a state official. She was so impressive in her handling of me and my pugnacious adversary that I offered her a job once the case was resolved. She accepted.

Westbrook is now a solo practitioner in Middletown. She's a graduate of Fisk University and the Vanderbilt School of Law. She teaches administrative law at Manchester Community College, and is active in the NAACP. She has experience at the trial level in both civil and criminal matters.

Sure, Westbrook is young. She's not yet 40, I'm told. But that doesn't make her a babe in the woods. I suspect she's spent as much time in a courtroom representing clients as most of the members of the bench. She is keen of intellect.

I am mindful that to many right-thinking folks a recommendation from me is perhaps the kiss of death. But I am so confident that Westbrook can survive my recommendation that I tender her name boldly and with confidence.

If lingering doubts about Vanessa Bryant have derailed her nomination, then I say take a close look at Dawne Westbrook. No one will rate her as unqualified.

Reprinted with permission of The Connecticut Law Tribune, www.law.com/ct.


Feds Get Justice In Connelly’s Overlook

Spoiler Warning: The Overlook

   When I grow up, I want to do something like what Michael Connelly did. So what if I’m a few years older than Connelly.

   Connelly determined as a young man that he would be a mystery writer. He must have known then -- in his soul -- of the art he might create to validate integrity and expose corruption while telling great stories. Connelly had no experience, but he liked what Raymond Chandler had to say. He was intrigued by the way director Robert Altman played with Chandler’s The Long Goodbye. This led Connelly to play well enough to create his own universe, a universe so endearing that others would support it.

   The road to best-selling mystery author included extended stops as a cop reporter in Florida and Los Angeles. I sense many of the friends he made in those years are his friends today.

   More than anything, I admire the integrity of Connelly’s writing. Connelly’s hero, detective Harry Bosch, pays a huge price for doing his job. Everyone counts or no one counts is Bosch’s motto. Living that life in any endeavor is an enormous burden. It is the essence of a democratic republic.

To the extent that good cops like Bosch do their jobs, we have some hope of living in an actual democracy. For Bosch will not back down against anyone, regardless of power or position. I have not read of anyone calling Bosch graceful, but I see him carrying the mantle gracefully and courageously.

Bosch has some good and capable colleagues. But they are often sidetracked by the inept, the apathetic, the clock-punchers and the corrupt.

   Here lies Connelly’s great accomplishment: As an artist he exposes the corrupt and the oppressors in a way far more powerful that he might have as a journalist. Connelly does this with the pacing and depth of character as well as any novelist. Certainly there will be a ripple effect, in the arts and possibly elsewhere.

   As readers we see what we want to see. While I explore this dynamic with Connelly, I am compelled to go back for a second round.

   Foremost, with Connelly, we get classic great tales with hidden friends and foes jumping out of the bushes right down to the wire. How will Harry or other protagonists smote the enemy, or, first, identify the correct enemy?

   I began last fall with The Lincoln Lawyer. Several of my friends in the criminal defense business live elements of protagonist Mickey Haller’s tortured and occasionally rewarding life. Connelly’s Lincoln Lawyer allowed me the pure and guiltless pleasure of following Haller’s peril in a way I might not follow others in real life. The distance and the journey are simultaneously relaxing and invigorating – while safe.

   Following The Lincoln Lawyer I read all the Harry Bosch novels, as well as Blood Work and The Poet. Math isn’t my best subject, but I think there are 17 Connelly novels and various short stories. Yesterday, I capped this reading extravaganza and shook up my printer with 16 installments of The Overlook, serialized in The New York Times.

   The Overlook, due out as an expanded hardcover in May, gave me the best buzz of all.

Bosch catches a murder. The Feds move in, try to push aside Bosch and the murder, and erroneously make it a weapons of mass destruction case with all the bells and whistles and abuse of power. Thankfully, in Bosch, we have the persona of someone who pushes back – effectively and relentlessly. The Feds get what they deserve, and justice is done.

   It is easy to recognize some of the Feds as the bad guys – the arrogant and incompetent losers – as they are in real life. The only thing this coterie of klutzes have going for them is unchecked power in a brotherhood that allows access and action far beyond retirement.

   As George Jackson so aptly put it, “Anyone who can pass the civil service test today can kill tomorrow.”

   From the political harassment of waves of immigrants going back at least to the 1920’s and the infiltration of the civil rights and anti-war movements -- to their own unclean hands in the operations of organized crime in New England in recent years and spying on citizens today – few if any entities pose a greater threat to the American people than our own government and agents who would happily work for any gang in power. The Constitution and the Bill of Rights be damned.

   No one writing mystery stories today tells certain parts of this story better than Connelly.

   The story of The Overlook will resonate with good cops throughout the nation. We need more good cops out there like Harry Bosch and more good lawyers like Mickey Haller to protect us from enemies foreign and domestic. We might need more help on the domestic side before it’s too late.


Congratulations, Or Is It Condolences?, To John Danaher

Connecticut's Gov. M. Jodi Rell chose well for the next Commissioner of Public Safety when she tapped John Danaher III for the job. Mr. Danaher is currently senior litigation counsel at the United States Attorney's office in Connecticut. He supervised the prosecutions of former Gov. John G. Rowland, former Bridgeport mayor Joseph Ganim and former Waterbury mayor Phil Giordano. He also served as interim U.S. Attorney in 2001 and 2002.

He is a sharp and honest trial tactician. I tried a case against him in January 2005 and was impressed with his poise, knowledge of the rules of evidence and sense of fair play. He typifies the maxim that a prosecutor is to strike hard blows but fair blows. I stumbled once on an issue of evidence and he was unsparing in his attack without being vindictive.

The Department of Public Safety is in sore need of new leadership. The state police, which is one of the agencies under the control of the department, has been rocked in recent months as a result of an outside examination of irregularities in internal investigations of state troopers. It sometimes appear that justice among Connecticut's state troopers is meted out in proportion to a trooper's closeness to those in power.

Expect Danaher to try to cut through this inbreeding. That will not be an easy task. The thin blue line is hard to snap and there are factions within the state police that seem to view the rule of law as only one option among many. Danaher's predecessor, outgoing Commissioner Leonard Boyle, was a highly regarded federal prosecutor when he took command. He couldn't quite crack the clubhouse corps in the state's police barracks.

The Department of Public Safety is also responsible for oversight of the state's forensic laboratory. Danaher's easy command of the rules of evidence make him an ideal leader. Courtrooms across the country are now going digital, and the presentation of digital evidence is transforming the forensic  sciences. Henry Lee made a cottage industry of promoting the laboratory, and himself, sometimes leaving the labs weak in terms of experts prepared to testify. Danaher can help move the lab away from the glitz and glitter of Dr. Lee's abundant self-promotion.

Two intiatives Danaher should sponsor:

1.  Requiring that all custodial interrogations be interviewed from start to finish. Connecticut was the first state in the nation to have public defenders. Why not once again seek the forefront in securing the rights of the accused?

2.  Permitting the laboratory to be a better resource for defense counsel. The laboratory currently has a policy of refusing to test material that has already been tested by the federal government. That's just silly. Truth is what it is. Why not help with confirming tests done at the request of the defense?

I know John, I respect John and I like him, too. So while I am happy to see him take this new post, my heart goes out to him. I've never understood why trial lawyers in their prime volunteer to become bureaucratic eunuchs. Recently Kevin Kane left the trenches of New London to become Chief State's Attorney. I felt a similar loss to the profession when Kane became a bureaucrat.

Danaher is a good lawyer and a good man. Let's see what he can do with the cowboys over at public safety.


Please Welcome Andy Thibault

Crime and Federalism is pleased to introduce our lastest contributor, Andy Thibault.

Thibault, author of Law & Justice in Everyday Life, was an award-winning columnist for Law Tribune Newspapers from 2000-2006, whom F. Lee Baily described as "a gunslinger from the Old West, ready to fire at anything that moves - especially if he doesn't take kindly to the movement."

Thibault was chief investigator for the Washington, D.C. public interest law firm Judicial Watch.  While at Judicial Watch, Thibault brought in from the cold two girlfriends of the late U.S. Commerce Secretary Ron Brown as the firm probed cash for trade mission placements and other corruption in that agency.

Thibault also manages a non-profit foundation that awards prizes annually to young poets and writers in Connecticut, and is a licensed professional boxing judge.

You can find more about Thibault at his home page and his blog, The Cool Justice Report.


Laughable Irony at Feminist Law Professors Blog

Responding to a post by Kathleen A. Bergin (via Olson) - which did not cite sources or other evidence in support of his facts, one commentator wrote a lengthy rebuttal.  Ann Bartow allowed the rebuttal to be posted through her censor, but disclaimed:  "I’m allowing the comment to post, but caution readers that [the commenter] has not sourced or documented his recitation of 'the facts.'"  While the "cauation" is duly noted, I wonder why Bartow would hold her readers to a higher standard than she would hold her blog posters?


Collateral Consequences of Conviction

Once a client has done his time, he has paid his debt to society, correct?

Wrong. A felony conviction is the gift that keeps on giving. A Scarlet F can transform a life permanently.

What can be done to eliminate or mitigate the consequences of a felony conviction?

Start by ordering this book: Relief From The Collateral Consequences Of A Criminal Conviction: A State-By-State Guide. The book was published in 2006 and was written by Margaret Colgate Love, a former federal prosecutor. Here's the publisher's blurb on the book.

You can order it here

"The guide is the first comprehensive survey of U.S. laws and practices that offers a way to overcome or mitigate the collateral legal consequences of a criminal conviction. It begins with short analytical pieces on executive pardon, judicial expungement and sealing, deferred adjudication and set-aside, certificates of rehabilitation and laws that limit consideration of conviction in connection with employment and licensing. The heart of the guide is its detailed descriptions for each U.S. jurisdiction of available relief mechanisms and how they operate. Includes charts allowing easy state-to-state comparisons. It is an invaluable resource for policymakers and researchers dealing with the legal barriers to offender re-entry, and for practitioners at every level of the justice system."

I am ordering mine today.


Gerry Spence: He's Back And This Time It's Not All About Him

I was ordering a book or two on Amazon.com this afternoon when it occurred to me that I had not seen Gerry Spence's name in a while. I wondered whether his second work of fiction had hit the shelves yet. I typed in his name, and, voila, there is a new book. It's not about him and it's not fiction. Damn. This could be interesting.

Bloodthirsty Bitches and Pious Pimps of Power: The Rise and Risks of the New Conservative Hate Culture is on the market. It's a slapshot at Ann Coulter, Bill O'Reilly and the like. We're being sold easy emotion in much the same way facsists sold hatred. Or so the reviewers say. The book has been generally well reviewed on Amazon.com. I broke down and ordered a copy.

I'll give it a read. Spence can be entertaining, and he is righteously full of himself. I enjoy seeing the self-confidence of the man. Oh, would that he returned to the courtroom, where he earned the self-designation as America's finest trial lawyer. He says he's never lost a criminal case. I can't say that. Still, I find myself wondering just how many criminal cases he tried to a verdict as defense counsel. And I also wish I could get him to come East to try a case or two with me. I've got some tough ones that will take magic to win. Spence says he's got the golden touch.