Legal issues

[Crafty_Dog]

Let There Be 'Blight'
Welcome to the post-Kelo world.

BY WILLIAM R. MAURER
Thursday, January 11, 2007 12:01 a.m. EST

SEATTLE--The city of Burien, Wash., recently decided that a piece of property owned by the seven Strobel sisters that had long housed a popular diner-style restaurant was not upscale enough for the city's ambitious "Town Square" development, which will feature condos, shops, restaurants and offices. Rather than condemn the property for a private developer and risk a lawsuit, Burien came up with a plan--it would put a road through the property, and the city manager told his staff to "make damn sure" it did. When a subsequent survey revealed that the road would not affect the building itself, but only sideswipe a small corner of the property, the staff developed yet another site plan that put the road directly through the building. A trial court concluded that the city's actions might be "oppressive" and "an abuse of power"--but allowed the condemnation anyway. The Washington Court of Appeals affirmed, and the Washington Supreme Court refused to hear the case.

Welcome to the post-Kelo world. The U.S. Supreme Court's 2005 decision made clear that the federal courts would not stop local governments across the country from condemning private property for economic development. While the court noted that states were free to provide greater protections for homes and small businesses if they chose, Washington state stands as evidence that a strong state constitution means little if the courts do not enforce it and local governments disregard it.

When Kelo came out, local governments and their lobbyists eagerly explained that ours was not a "Kelo state," and that the legislative efforts to restrict eminent-domain abuse in other states were unnecessary here. The Washington Constitution explicitly provides that "private property shall not be taken for private use" (except in very limited circumstances). "It can't happen here" became the oft-repeated message used to placate home and small business owners seeking legislative protections for their property.





When it comes to governmental abuse, "it can't happen here" really means "it is happening right now." Local governments are busily using mechanisms in state law to threaten neighborhoods and abuse property owners, and the state Supreme Court has repeatedly let them get away with it.
Shortly after Kelo, the Washington Supreme Court allowed the Seattle Monorail to permanently condemn a piece of property it needed only temporarily for a construction staging area. Once the monorail had completed that legitimate public use, it intended to sell the property at a premium to raise revenue. In this way, Washington courts now allow local governments to condemn more land than is necessary, for longer than is necessary, in the hopes that the government can play real-estate speculator with whatever is left.

The court also ruled that the meetings at which a local government determines which property to condemn could take place essentially in secret, with the only notice for property owners being a posting on an obscure government Web site. The court ignored the fact that computer usage among minorities, the elderly and the poor is significantly lower than in other segments of the population, and that it is these communities that traditionally have been the target of eminent-domain abuse.

Washington courts now defer to even the most extreme examples of governmental exploitation, exemplified by Burien's treatment of the Strobel sisters. So long as the government can manufacture a fig leaf of public use or possible public use for constitutional cover, local governments can take private property to transfer to other private entities or deliberately target properties not upscale enough for the bureaucrats' "vision."

The tools available for trampling constitutional rights are already there. Since the Kelo decision, municipalities have rediscovered Washington's Community Renewal Act, the local incarnation of statutes used to destroy working-class (and often minority) neighborhoods across the country in the 1950s and '60s. The government, under the act, can condemn an entire neighborhood and transfer the property to a private developer so long as the government finds that at least some property in the neighborhood is "blighted." Unfortunately, this statute is so broadly worded that practically every neighborhood in Washington meets the definition of "blight"--things like "obsolete platting" and "diversity of ownership" constitute "blight." The statute provides all the devices a mildly clever planner needs to pull off a Kelo-style taking.

Working-class neighborhoods are already feeling the pressure. Auburn recently declared much of its beautiful downtown "blighted," and adopted a Community Renewal Plan. One city manager explained that blight "means anything that impairs or arrests sound growth"--a hugely elastic definition. Similarly, Seattle is considering using the Community Renewal Act in the city's Rainier Valley, one of the most diverse neighborhoods in the nation.





Regardless of strong constitutional protections for private property, governments and courts now view eminent domain as an area where few if any restrictions exist. And not just in Washington. In probably the most appalling example, the U.S. Court of Appeals for the Second Circuit let stand a condemnation in which a developer in the Port Chester, N.Y., demanded that Bart Didden give him either $800,000 or a 50% share in Mr. Didden's property, which was slated to be a CVS pharmacy--or the developer would have the village condemn it. Mr. Didden refused; the next day, the village condemned his property to hand it over to the developer to construct a Walgreens. Tomorrow, the U.S. Supreme Court will consider whether to take the case.
Meanwhile, state and federal courts are turning redevelopment areas into Constitution-free zones, where the government can do what it wants with few or no restrictions. It doesn't have to be this way. Courts could force the government to comply with the state and federal constitutions. Local governments could limit their takings only to legitimate public uses. But until all three branches of government begin taking their constitutional obligations seriously, property owners across the country face the continued threat of eminent-domain abuse, regardless of what the state or federal constitution says.

Ask the Strobel sisters, who are now fighting for just compensation for a property that was never for sale in the first place.

Mr. Maurer is executive director of the Institute for Justice, Washington chapter, and the author of "A False Sense of Security: The Potential for Eminent-Domain Abuse in Washington," recently published by the Washington Policy Center. The Institute litigated the Kelo case and represents Bart Didden in his appeal to the U.S. Supreme Court.

[Crafty_Dog]

Sorry to throw two completely unrelated posts on this thread in short order, but both seem quite interesting:
===========

The Michael Nifong Scandal
The Duke rape hoax is redolent of past decades' phony child-abuse cases.

Thursday, January 11, 2007 12:01 a.m. EST

No one could have imagined, when the story began last March, how soon and completely that bit of shorthand--"the Duke University scandal"--would be transformed.

Scarcely 10 months after, the term is now almost universally understood as a reference to the operations of Michael Nifong, the Durham County district attorney (pictured nearby), whose abandonment of all semblance of concern about the merits of the rape and assault accusations against three Duke University students was obvious from the first. So was his abundant confidence while broadcasting comments on the guilt of the accused. He seemed a man immune to concerns for appearances as he raced about expounding on the case against the accused lacrosse players and calling them hooligans. He would hear nothing by way of concern from Duke administrators (seven months into this affair, the university president did find an opportunity to mention the accused students' right to a presumption of innocence)--and certainly none from the politically progressive quarters of the Duke faculty who lent their names to an impassioned ad thanking everyone who had come out to march in protest against the rape and assault of the exotic dancer; 88 faculty members signed it, among them such Duke luminaries as Alice Kaplan, author and student of fascism, and Frank Lentricchia, literary critic.

Unable to take part in the ad signing, Duke's administrators nonetheless found ways to identify with its spirit. Soon after news broke of the Duke athletes' alleged brutish sex crimes against a black woman, the administration undertook a well-publicized campaign targeting the entire lacrosse team for offensive behavior. President Richard Brodhead was, it seems, barely able to recover from the shock of his discovery that a party thrown by male jocks could occasion heavy drinking. And related loutish behavior. Not to mention a stripper. Lacrosse was suspended for the season, and the team coach, Mike Pressler, was shortly after forced to resign. Mr. Brodhead in due course reinstated the team, but on probation, and with conditions, i.e., no underage drinking and disorderly conduct, and no harassment. The members of other Duke organizations, sports teams included, which had sponsored parties where alcohol flowed freely and which had featured strippers--an informal count reveals at least 20 known to have done so--no doubt understood that they faced no similar disciplinary action. The reason for the moral-cleansing program devised for the lacrosse team could scarcely have been missed.

Mr. Nifong's confidence that he had nothing to fear from establishment opinion or from the leaders of the great university as he bounded about making hash of the rules of justice--prime among them the accused's right to a presumption of innocence--proved justified. And might have remained so longer but for the catastrophic effects of the accuser's unraveling stories.

Mr. Nifong is no anomaly--merely a product of the political times, a prosecutor who has absorbed all the clues about the sanctified status now accorded charges involving rape, child sex-abuse and accusations of racism. Which has in turn ensured their transformation into weapons of unequalled power. Like others before him, the DA quickly grasped the career possibilities open to him with such a case and proceeded accordingly--denouncing racism, and the rape and assault of a helpless black woman, and the Duke athletes guilty of these crimes in every media interview available to him (and they were many).





For all the public shock and fury over his behavior, there is little that is new or strange about Mr. Nifong. We have seen the likes of this district attorney, uninterested in proofs of innocence, willing to suppress any he found, many times in the busy army of prosecutors claiming to have found evidence of rampant child abuse in nursery schools and other child-care centers around the country in the 1980s and throughout most of the '90s. They built case after headline-making case charging the mass molestation of small children, and managed to convict scores of innocent Americans on the basis of testimony no rational mind could credit. Law officers who regularly violated requirements of due process in their effort to obtain a conviction, they grasped the special advantage that was theirs: that for a prosecutor dealing with molestation, and wearing the mantle of avenger, there was no such thing as excess, no limits to what could be said of the accused. In court, rules could be bent, any charges presented, and nonexistent medical evidence proclaimed as proof positive of the accusation.
In his role of avenger of a young black woman alleged to have been brutalized by white males, Mr. Nifong proceeded with similar assurance. His was a crusade. Who but enemies of the good would object? Confronted with hard questions about his evidence, whether from the defense or the press, Mr. Nifong answered that these challenges were all designed to intimidate the rape victim. More than once the DA suggested, as criticisms of his case multiplied, that he was himself a victim of the press. He could have had little complaint, last summer, about the New York Times, which provided its own reports on the Duke story. It maintained that that the DA's case had been distorted by the defense and that there was, in fact, a body of evidence that supported the decision to take the case to a jury. A close study of this work's wondrous logic, and of its body of evidence, should provide rich material for students of the press for years to come.

The jury to which Mr. Nifong played--the black population of Durham--duly helped re-elect him. This could not prevent his case of rape and abuse against the three Duke students from coming undone, thanks in part to his own heedless behavior but mainly to the accusing dancer herself, whose shifting stories and checkered past could not be hidden.

Mr. Nifong had, of course, nothing like the advantages of nursery school prosecutors: endearing 4- and 5-year-old witnesses clutching teddy bears, who came to court to recite lies they had been cajoled into inventing, about how the accused had raped and stabbed them, cut off the legs of animals--the kinds of charges mounted, against elderly Violet Amirault of Massachusetts and her adult children Cheryl and Gerald, proprietors of the respected Fells Acres Day School. Many like them were caught up in the era's whirlwind of accusation and sensational trials invariably leading to conviction, on which ambitious prosecutors built careers. Almost all those cases would ultimately be thrown out by appeals courts, most of the time not before those convicted had served long years and paid with the ruin of their lives.

Mr. Nifong's case has come undone long before any trial, fortunately for the three Duke students charged. They have had, nevertheless, a powerful taste of what it means to have been named and despised as perpetrators of abhorrent sexual crimes. I could go to prison for 30 years, Reade Seligmann, one of the accused, told the late Ed Bradley during a "60 Minutes" interview last October--and "for something that never happened"

Neither Mr. Seligman nor the other accused Duke students will ever have to contend with a punishment like the one meted out to Gerald Amirault, who was sentenced to a 30- to 40-year term for something that never happened--atrocious sex crimes that never took place, of which there was no physical evidence, or anything resembling a credible allegation. What did it matter that the child's testimony that resulted in Gerald's conviction had claimed rape with a large butcher's knife--one that had magically left not the slightest injury? The jury's most important duty was, the prosecutors informed them, to believe the children and show that they honored their testimony. The same young witness also testified that Gerald was accompanied by a green, silver and yellow robot, R2-D2, from "Star Wars."

What did it matter, either, that special judicial hearings about the Amiraults' prosecution had concluded that it was a travesty, that a tough panel of former prosecutors, the Governor's Board of Pardons, had virtually declared Gerald Amirault innocent and voted for commutation of his sentence--or that he was finally granted parole nearly three years ago, after nearly 18 years' imprisonment? He was almost immediately classified by Massachusetts's Sex Offenders Registry Board as a Level 3 offender. The kind, that is, deemed the most dangerous and most likely to re-offend. This bizarre classification, the board made clear, had to do with the number of counts of sex abuse charged to him--and the fact, too, that he continued to deny guilt. He now has to wear a large tracking device around his ankle, and obey a curfew confining him to the house from 11:30 p.m. to 6 a.m. every day. He has, not surprisingly, been unable to find a job. He is sustained, as ever, by the unstinting devotion of his family, and he grieves now mainly for the loss of the chance he had dreamed of in prison--of earning a salary and finally lightening the burden his wife had carried, uncomplaining and alone, during his years in prison. (He has recently been advised of pending legislation that will require him to pay $10 a day for the global positioning tag on his leg, that tracks him.)

[Crafty_Dog]

   
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The Truth About Clarence Thomas
By JAN CRAWFORD GREENBURG
January 22, 2007; Page A14

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive -- and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.

That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.

Much of the documentary evidence for this comes from the papers of Justice Harry Blackmun, who recorded the justices' votes and took detailed notes explaining their views. I came across vivid proof while reading the papers as part of my research for a book about how the Rehnquist Court -- a court with seven justices appointed by Republican presidents -- evolved into an ideological and legal disappointment for conservatives.

Justice Thomas's first term was especially interesting. He replaced legendary liberal icon Thurgood Marshall, and joined the court just a year after David Souter took William Brennan's seat. There appeared to be a solid conservative majority, with the court poised to finally dismember the liberal legacy of the Warren Court. But that year it instead lurched inexplicably to the left -- even putting Roe v. Wade on more solid ground.

Justice Thomas's first year on the job brought to life the adage that a new justice makes a new court. His entry didn't merely change the vote of the liberal justice he replaced. It turned the chessboard around entirely, rearranging ideological alliances. Justice Thomas acted as a catalyst in different ways, shoring up conservative positions in some cases and spurring others -- the moderate Justice Sandra Day O'Connor, in particular -- to realign themselves into new voting blocs.

Consider a criminal case argued during Justice Thomas's first week. It concerned a thief's effort to get out of a Louisiana mental institution and the state's desire to keep him there. Eight justices voted to side with the thief. Justice Thomas dissented, arguing that although it "may make eminent sense as a policy matter" to let the criminal out of the mental institution, nothing in the Constitution required "the states to conform to the policy preferences of federal judges."

After he sent his dissenting opinion to the other justices, as is custom, Justices Rehnquist, Scalia and Kennedy changed their votes. The case ended up 5-4.

Justice Thomas's dissents persuaded Justice Scalia to change his mind several times that year. Even in Hudson v. McMillan, the case that prompted the New York Times to infamously label Justice Thomas the "youngest, cruelest justice," he was again, initially, the lone dissenter. Justice Scalia changed his vote after he read Justice Thomas's dissent, which said a prison inmate beaten by guards had several options for redress -- but not under the Eighth Amendment's prohibition of "cruel and unusual punishment."

* * *
From the beginning, Justice Thomas was an independent voice. His brutal confirmation hearings only enforced his autonomy, making him impervious to criticism from the media and liberal law professors. He'd told his story, and no one listened. From then on, he did not care what they said about him.

Clarence Thomas, for example, is the only justice who rarely asks questions at oral arguments. One reason is that he thinks his colleagues talk too much from the bench, and he prefers to let the lawyers explain their case with fewer interruptions. But his silence is sometimes interpreted as a lack of interest, and friends have begged him to ask a few questions to dispel those suggestions. He refuses to do it. "They have no credibility," he says of critics. "I am free to live up to my oath."

But the forcefulness and clarity of Justice Thomas's views, coupled with wrongheaded depictions of him doing Justice Scalia's bidding, created an internal dynamic that caused the court to make an unexpected turn in his first year. Justice O'Connor -- who sought ideological balance -- moved to the left. With the addition of Chief Justice John Roberts and Associate Justice Samuel Alito, the court now is poised to finally fulfill the hopes of the conservative movement. As George W. Bush told his legal advisers early in his presidency, he wanted justices in "the mold of Thomas and Scalia." Interestingly, on President Bush's marquee, Justice Thomas got top billing.

Ms. Crawford Greenburg, legal correspondent for ABC News, is the author of "Supreme Conflict: The Inside Story for Control of the United States Supreme Court," published tomorrow by Penguin Press.
 

[Crafty_Dog]

An interesting read on some old Supreme Courst self-defense decisions:

http://www.davekopel.com/2A/LawRev/Self-Defense-Cases.htm

[Crafty_Dog]

ENSIGN, MURKOWSKI INTRODUCE BILL TO SPLIT NINTH CIRCUIT
Court’s Enormous Size, Inability to Handle Caseload Top Concerns
February 8, 2007

Washington, D.C. – Senators John Ensign (NV) and Lisa Murkowski (AK) introduced legislation today to split the Ninth Circuit Court of Appeals, the largest court in the country, because it is overburdened by an unmanageable caseload. Under this bill, Nevada, along with Alaska, Arizona, Idaho, Oregon, Montana and Washington, would be part of a new Twelfth Circuit.

“Because of its enormous and growing size, the Ninth Circuit does not have sufficient time to properly handle its caseload,” said Ensign. “For too long, people’s lives have been on hold because the Ninth Circuit is strained beyond its capacity. Justice delayed is justice denied.”

“The Ninth Circuit has become a circuit where justice is not swift and not always served,” said Senator Murkowski. “The legislation we are introducing today is intended to bring about the sensible reorganization of the Ninth Circuit. No one court can effectively exercise its power in an area that extends from the Arctic Circle to the tropics. The creation of a new Twelfth Circuit will go far in improving the efficiency and effectiveness of the current court and will establish a circuit which is more geographically manageable.”

“The sheer size of the Ninth Circuit makes its caseload simply unmanageable,” said Senator Ted Stevens, an original co-sponsor of the legislation. “This inevitably results in delays processing cases, and it also prevents the Court from dealing with unique problems in Alaska, Hawaii, and other small states. This legislation will remedy the Ninth Circuit’s limitations by creating two smaller, more efficient Courts. Separate courts will serve the people of each region better and help maintain consistency in caselaw.”

It takes the Ninth Circuit on average almost one year longer to handle a case when compared to other circuit courts around the country. Located in San Francisco, the court encompasses 20 percent of the population of the United States. Three of the states in its jurisdiction – Nevada, Arizona and Idaho – are among the top five fastest-growing states in the nation.

In addition to the size constraints, Ensign also raised concern over the San Francisco court’s ideological leaning, citing specifically the ruling that the Pledge of Allegiance is unconstitutional because it contains the phrase “under God.”

“Despite the need for an independent judiciary outside of the political arena, many of the court’s rulings reflect a set of values that are at odds with a majority of the people in Nevada. I’m hopeful that this bill will move forward so that Nevada residents are served by a court with a viewpoint closer to their own,” Ensign added.

[Crafty_Dog]

GLOBAL VIEW

Who Needs Jacques Bauer?
The Napoleonic Code is more conducive to counterterrorism than the U.S. Constitution.

BY BRET STEPHENS
Sunday, February 25, 2007 12:01 a.m. EST

Twenty-nine defendants went on trial earlier this month in a Spanish courtroom for complicity in the March 11, 2004 Madrid train bombings that killed 191 commuters and injured another 1,800. Among the accused: Jamal Zougam, a 33-year-old Moroccan immigrant who once ran a cell-phone business. In June 2001, Spanish police raided Mr. Zougam's apartment, where they found jihadist literature and the telephone numbers of suspected terrorists. But the Spaniards judged the evidence insufficient to arrest or even wiretap him. Today, the Moroccan is believed to have furnished the cellphones through which the train bombs were detonated.

In raiding Mr. Zougam's apartment, the Spanish were acting on a request from French investigative magistrate and counterterrorism supremo Jean-Louis Bruguiere. Earlier, Mr. Bruguiere had also warned the Canadian government about a suspicious Algerian asylum-seeker named Ahmed Ressam, but the Canadians took no real action. On Dec. 14, 1999 Mr. Ressam--a k a the Millennium Bomber--was arrested by U.S. customs agents as he attempted to cross the border at Port Angeles, Wash., with nitroglycerin and timing devices concealed in his spare tire.

It would be reassuring to believe that somewhere in the ranks of the FBI or CIA America has a Jean-Louis Bruguiere of its own. But we probably don't, and not because we lack for domestic talent, investigative prowess, foreign connections, the will to fight terrorism or the forensic genius of a Gallic nose. What we lack is a system of laws that allows a man like Mr. Bruguiere to operate the way he does. Unless we're willing to trade in the Constitution for the Code Napoleon, we are not likely to get it.





Consider the powers granted to Mr. Bruguiere and his colleagues. Warrantless wiretaps? Not a problem under French law, as long as the Interior Ministry approves. Court-issued search warrants based on probable cause? Not needed to conduct a search. Hearsay evidence? Admissible in court. Habeas corpus? Suspects can be held and questioned by authorities for up to 96 hours without judicial supervision or the notification of third parties. Profiling? French officials commonly boast of having a "spy in every mosque." A wall of separation between intelligence and law enforcement agencies? France's domestic and foreign intelligence bureaus work hand-in-glove. Bail? Authorities can detain suspects in "investigative" detentions for up to a year. Mr. Bruguiere once held 138 suspects on terrorism-related charges. The courts eventually cleared 51 of the suspects--some of whom had spent four years in preventive detention--at their 1998 trial.
In the U.S., Mr. Bruguiere's activities would amount to one long and tangled violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the Constitution. And that's not counting the immense legal superstructures that successive Supreme Courts have built over and around the Bill of Rights. In France, however, Mr. Bruguiere, though not without his critics, is a folk hero, equally at home with governments of the left and right. The main point in his favor is that whatever it is he's doing, it works.

"Every single attempt to bomb France since 1995 has been stopped before execution," notes a former Interior Ministry senior official. "The French policy has been [to] make sure no terrorist hits at home. We know perfectly well that foreign-policy triangulation is not sufficient for that, [even if] it helps us go down a notch or two in the order of priority [jihadist] targets. So we've complemented our anti-U.S. foreign policy with ruthless domestic measures."

That's something that U.S. civil libertarians, who frequently argue that the Bush administration should follow the "European model" of treating terrorism as a law-enforcement issue instead of a military one, might usefully keep in mind. As lawyers David Rivkin and Lee Casey argue in the forthcoming issue of The National Interest, "the [Napoleonic] Civil Law system offers considerable advantages to the state in combating terrorism--especially in terms of investigative tools and a level of secrecy--that are simply unavailable in the ordinary Common Law criminal prosecution and trial, at least as governed by the United States Constitution."





Again, review the contrasts between American and European practices. Except in limited circumstances, the U.S. does not allow pretrial detentions. But according to figures compiled by the U.S. State Department, 38% of individuals held in Italian prisons in 2005 were awaiting trial or the outcome of an appeal, while Spanish law allows for pre-trial detentions that can last as long as four years for terrorism suspects. In the U.S., the Posse Comitatus Act forbids the use of the military in law-enforcement work, and paramilitary units are relatively rare. By contrast, most European countries deploy huge paramilitary forces: Italy's Carabinieri; France's Gendarmerie Nationale; Spain's Guardia Civil.
Even Britain, which shares America's common law traditions, has been forced by Irish and now Islamist terrorism to resort to administrative detentions, trials without jury (the famous Diplock courts) and ubiquitous public surveillance. Wiretapping is authorized by the Home Secretary--that is, a member of the government--rather than an independent judge. In the early days of the Northern Irish "troubles," the government of Edward Heath placed some 2,000 suspects, without charge, in internment camps. Ironically, it was the decision to treat terrorists as ordinary criminals that led to the famous hunger strikes of Bobby Sands and his IRA crew.

All this calls into question the seriousness, if not the sincerity, of European complaints that under the Bush administration the U.S. has become a serial human-rights violator. Europeans have every right to be proud of civil servants like Mr. Bruguiere and a legal tradition that in many ways has been remarkably successful against terrorism. But that is not the American way, nor can it be if we intend to be true to a constitutional order of checks and balances, judicial review and a high respect for the rights of the accused. When President Bush declared a war on terror after 9/11, it was because he had no other realistic legal alternative. And when the rest of us make invidious comparisons between Europe and America, we should keep our fundamental differences in mind. There is no European 82nd Airborne, and there is no American Jean-Louis Bruguiere.

Mr. Stephens is a member of The Wall Street Journal's editorial board. His column appears in the Journal Tuesdays.

[Crafty_Dog]

Second post of the morning:
NY Times
Editorial Observer
Why Have So Many U.S. Attorneys Been Fired? It Looks a Lot Like Politics
By ADAM COHEN
Published: February 26, 2007

Carol Lam, the former United States attorney for San Diego, is smart and tireless and was very good at her job. Her investigation of Representative Randy Cunningham resulted in a guilty plea for taking more than $2 million in bribes from defense contractors and a sentence of more than eight years. Two weeks ago, she indicted Kyle Dustin Foggo, the former No. 3 official in the C.I.A. The defense-contracting scandal she pursued so vigorously could yet drag in other politicians.

In many Justice Departments, her record would have won her awards, and perhaps a promotion to a top post in Washington. In the Bush Justice Department, it got her fired.

Ms. Lam is one of at least seven United States attorneys fired recently under questionable circumstances. The Justice Department is claiming that Ms. Lam and other well-regarded prosecutors like John McKay of Seattle, David Iglesias of New Mexico, Daniel Bogden of Nevada and Paul Charlton of Arizona — who all received strong job evaluations — performed inadequately.

It is hard to call what’s happening anything other than a political purge. And it’s another shameful example of how in the Bush administration, everything — from rebuilding a hurricane-ravaged city to allocating homeland security dollars to invading Iraq — is sacrificed to partisan politics and winning elections.

U.S. attorneys have enormous power. Their decision to investigate or indict can bankrupt a business or destroy a life. They must be, and long have been, insulated from political pressures. Although appointed by the president, once in office they are almost never asked to leave until a new president is elected. The Congressional Research Service has confirmed how unprecedented these firings are. It found that of 486 U.S. attorneys confirmed since 1981, perhaps no more than three were forced out in similar ways — three in 25 years, compared with seven in recent months.

It is not just the large numbers. The firing of H. E. Cummins III is raising as many questions as Ms. Lam’s. Mr. Cummins, one of the most distinguished lawyers in Arkansas, is respected by Republicans and Democrats alike. But he was forced out to make room for J. Timothy Griffin, a former Karl Rove deputy with thin legal experience who did opposition research for the Republican National Committee. (Mr. Griffin recently bowed to the inevitable and said he will not try for a permanent appointment. But he remains in office indefinitely.)

The Bush administration cleared the way for these personnel changes by slipping a little-noticed provision into the Patriot Act last year that allows the president to appoint interim U.S. attorneys for an indefinite period without Senate confirmation.

Three theories are emerging for why these well-qualified U.S. attorney were fired — all political, and all disturbing.

1. Helping friends. Ms. Lam had already put one powerful Republican congressman in jail and was investigating other powerful politicians. The Justice Department, unpersuasively, claims that it was unhappy about Ms. Lam’s failure to bring more immigration cases. Meanwhile, Ms. Lam has been replaced with an interim prosecutor whose résumé shows almost no criminal law experience, but includes her membership in the Federalist Society, a conservative legal group.

2. Candidate recruitment. U.S. attorney is a position that can make headlines and launch political careers. Congressional Democrats suspect that the Bush administration has been pushing out long-serving U.S. attorneys to replace them with promising Republican lawyers who can then be run for Congress and top state offices.

3. Presidential politics. The Justice Department concedes that Mr. Cummins was doing a good job in Little Rock. An obvious question is whether the administration was more interested in his successor’s skills in opposition political research — let’s not forget that Arkansas has been lucrative fodder for Republicans in the past — in time for the 2008 elections.

The charge of politics certainly feels right. This administration has made partisanship its lodestar. The Washington Post reporter Rajiv Chandrasekaran revealed in his book, “Imperial Life in the Emerald City,” that even applicants to help administer post-invasion Iraq were asked whom they voted for in 2000 and what they thought of Roe v. Wade.

Congress has been admirably aggressive about investigating. Senator Charles Schumer, Democrat of New York, held a tough hearing. And he is now talking about calling on the fired U.S. attorneys to testify and subpoenaing their performance evaluations — both good ideas.

The politicization of government over the last six years has had tragic consequences — in New Orleans, Iraq and elsewhere. But allowing politics to infect U.S. attorney offices takes it to a whole new level. Congress should continue to pursue the case of the fired U.S. attorneys vigorously, both to find out what really happened and to make sure that it does not happen again.

[Crafty_Dog]

I. Mr. Weinstein’s Cyst When historians of the future try to identify the moment that neuroscience began to transform the American legal system, they may point to a little-noticed case from the early 1990s. The case involved Herbert Weinstein, a 65-year-old ad executive who was charged with strangling his wife, Barbara, to death and then, in an effort to make the murder look like a suicide, throwing her body out the window of their 12th-floor apartment on East 72nd Street in Manhattan. Before the trial began, Weinstein’s lawyer suggested that his client should not be held responsible for his actions because of a mental defect — namely, an abnormal cyst nestled in his arachnoid membrane, which surrounds the brain like a spider web.

The implications of the claim were considerable. American law holds people criminally responsible unless they act under duress (with a gun pointed at the head, for example) or if they suffer from a serious defect in rationality — like not being able to tell right from wrong. But if you suffer from such a serious defect, the law generally doesn’t care why — whether it’s an unhappy childhood or an arachnoid cyst or both. To suggest that criminals could be excused because their brains made them do it seems to imply that anyone whose brain isn’t functioning properly could be absolved of responsibility. But should judges and juries really be in the business of defining the normal or properly working brain? And since all behavior is caused by our brains, wouldn’t this mean all behavior could potentially be excused?
The prosecution at first tried to argue that evidence of Weinstein’s arachnoid cyst shouldn’t be admitted in court. One of the government’s witnesses, a forensic psychologist named Daniel Martell, testified that brain-scanning technologies were new and untested, and their implications weren’t yet widely accepted by the scientific community. Ultimately, on Oct. 8, 1992, Judge Richard Carruthers issued a Solomonic ruling: Weinstein’s lawyers could tell the jury that brain scans had identified an arachnoid cyst, but they couldn’t tell jurors that arachnoid cysts were associated with violence. Even so, the prosecution team seemed to fear that simply exhibiting images of Weinstein’s brain in court would sway the jury. Eleven days later, on the morning of jury selection, they agreed to let Weinstein plead guilty in exchange for a reduced charge of manslaughter.

After the Weinstein case, Daniel Martell found himself in so much demand to testify as a expert witness that he started a consulting business called Forensic Neuroscience. Hired by defense teams and prosecutors alike, he has testified over the past 15 years in several hundred criminal and civil cases. In those cases, neuroscientific evidence has been admitted to show everything from head trauma to the tendency of violent video games to make children behave aggressively. But Martell told me that it’s in death-penalty litigation that neuroscience evidence is having its most revolutionary effect. “Some sort of organic brain defense has become de rigueur in any sort of capital defense,” he said. Lawyers routinely order scans of convicted defendants’ brains and argue that a neurological impairment prevented them from controlling themselves. The prosecution counters that the evidence shouldn’t be admitted, but under the relaxed standards for mitigating evidence during capital sentencing, it usually is. Indeed, a Florida court has held that the failure to admit neuroscience evidence during capital sentencing is grounds for a reversal. Martell remains skeptical about the worth of the brain scans, but he observes that they’ve “revolutionized the law.”

The extent of that revolution is hotly debated, but the influence of what some call neurolaw is clearly growing. Neuroscientific evidence has persuaded jurors to sentence defendants to life imprisonment rather than to death; courts have also admitted brain-imaging evidence during criminal trials to support claims that defendants like John W. Hinckley Jr., who tried to assassinate President Reagan, are insane. Carter Snead, a law professor at Notre Dame, drafted a staff working paper on the impact of neuroscientific evidence in criminal law for President Bush’s Council on Bioethics. The report concludes that neuroimaging evidence is of mixed reliability but “the large number of cases in which such evidence is presented is striking.” That number will no doubt increase substantially. Proponents of neurolaw say that neuroscientific evidence will have a large impact not only on questions of guilt and punishment but also on the detection of lies and hidden bias, and on the prediction of future criminal behavior. At the same time, skeptics fear that the use of brain-scanning technology as a kind of super mind-reading device will threaten our privacy and mental freedom, leading some to call for the legal system to respond with a new concept of “cognitive liberty.”

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One of the most enthusiastic proponents of neurolaw is Owen Jones, a professor of law and biology at Vanderbilt. Jones (who happens to have been one of my law-school classmates) has joined a group of prominent neuroscientists and law professors who have applied for a large MacArthur Foundation grant; they hope to study a wide range of neurolaw questions, like: Do sexual offenders and violent teenagers show unusual patterns of brain activity? Is it possible to capture brain images of chronic neck pain when someone claims to have suffered whiplash? In the meantime, Jones is turning Vanderbilt into a kind of Los Alamos for neurolaw. The university has just opened a $27 million neuroimaging center and has poached leading neuroscientists from around the world; soon, Jones hopes to enroll students in the nation’s first program in law and neuroscience. “It’s breathlessly exciting,” he says. “This is the new frontier in law and science — we’re peering into the black box to see how the brain is actually working, that hidden place in the dark quiet, where we have our private thoughts and private reactions — and the law will inevitably have to decide how to deal with this new technology.”

II. A Visit to Vanderbilt Owen Jones is a disciplined and quietly intense man, and his enthusiasm for the transformative power of neuroscience is infectious. With René Marois, a neuroscientist in the psychology department, Jones has begun a study of how the human brain reacts when asked to impose various punishments. Informally, they call the experiment Harm and Punishment — and they offered to make me one of their first subjects.

We met in Jones’s pristine office, which is decorated with a human skull and calipers, like those that phrenologists once used to measure the human head; his father is a dentist, and his grandfather was an electrical engineer who collected tools. We walked over to Vanderbilt’s Institute of Imaging Science, which, although still surrounded by scaffolding, was as impressive as Jones had promised. The basement contains one of the few 7-tesla magnetic-resonance-imaging scanners in the world. For Harm and Punishment, Jones and Marois use a less powerful 3 tesla, which is the typical research M.R.I.

We then made our way to the scanner. After removing all metal objects — including a belt and a stray dry-cleaning tag with a staple — I put on earphones and a helmet that was shaped like a birdcage to hold my head in place. The lab assistant turned off the lights and left the room; I lay down on the gurney and, clutching a panic button, was inserted into the magnet. All was dark except for a screen flashing hypothetical crime scenarios, like this one: “John, who lives at home with his father, decides to kill him for the insurance money. After convincing his father to help with some electrical work in the attic, John arranges for him to be electrocuted. His father survives the electrocution, but he is hospitalized for three days with injuries caused by the electrical shock.” I was told to press buttons indicating the appropriate level of punishment, from 0 to 9, as the magnet recorded my brain activity.

After I spent 45 minutes trying not to move an eyebrow while assigning punishments to dozens of sordid imaginary criminals, Marois told me through the intercom to try another experiment: namely, to think of familiar faces and places in sequence, without telling him whether I was starting with faces or places. I thought of my living room, my wife, my parents’ apartment and my twin sons, trying all the while to avoid improper thoughts for fear they would be discovered. Then the experiments were over, and I stumbled out of the magnet.

The next morning, Owen Jones and I reported to René Marois’s laboratory for the results. Marois’s graduate students, who had been up late analyzing my brain, were smiling broadly. Because I had moved so little in the machine, they explained, my brain activity was easy to read. “Your head movement was incredibly low, and you were the harshest punisher we’ve had,” Josh Buckholtz, one of the grad students, said with a happy laugh. “You were a researcher’s dream come true!” Buckholtz tapped the keyboard, and a high-resolution 3-D image of my brain appeared on the screen in vivid colors. Tiny dots flickered back and forth, showing my eyes moving as they read the lurid criminal scenarios. Although I was only the fifth subject to be put in the scanner, Marois emphasized that my punishment ratings were higher than average. In one case, I assigned a 7 where the average punishment was 4. “You were focusing on the intent, and the others focused on the harm,” Buckholtz said reassuringly.

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Marois explained that he and Jones wanted to study the interactions among the emotion-generating regions of the brain, like the amygdala, and the prefrontal regions responsible for reason. “It is also possible that the prefrontal cortex is critical for attributing punishment, making the essential decision about what kind of punishment to assign,” he suggested. Marois stressed that in order to study that possibility, more subjects would have to be put into the magnet. But if the prefrontal cortex does turn out to be critical for selecting among punishments, Jones added, it could be highly relevant for lawyers selecting a jury. For example, he suggested, lawyers might even select jurors for different cases based on their different brain-activity patterns. In a complex insider-trading case, for example, perhaps the defense would “like to have a juror making decisions on maximum deliberation and minimum emotion”; in a government entrapment case, emotional reactions might be more appropriate.

We then turned to the results of the second experiment, in which I had been asked to alternate between thinking of faces and places without disclosing the order. “We think we can guess what you were thinking about, even though you didn’t tell us the order you started with,” Marois said proudly. “We think you started with places and we will prove to you that it wasn’t just luck.” Marois showed me a picture of my parahippocampus, the area of the brain that responds strongly to places and the recognition of scenes. “It’s lighting up like Christmas on all cylinders,” Marois said. “It worked beautifully, even though we haven’t tried this before here.”

He then showed a picture of the fusiform area, which is responsible for facial recognition. It, too, lighted up every time I thought of a face. “This is a potentially very serious legal implication,” Jones broke in, since the technology allows us to tell what people are thinking about even if they deny it. He pointed to a series of practical applications. Because subconscious memories of faces and places may be more reliable than conscious memories, witness lineups could be transformed. A child who claimed to have been victimized by a stranger, moreover, could be shown pictures of the faces of suspects to see which one lighted up the face-recognition area in ways suggesting familiarity.

Jones and Marois talked excitedly about the implications of their experiments for the legal system. If they discovered a significant gap between people’s hard-wired sense of how severely certain crimes should be punished and the actual punishments assigned by law, federal sentencing guidelines might be revised, on the principle that the law shouldn’t diverge too far from deeply shared beliefs. Experiments might help to develop a deeper understanding of the criminal brain, or of the typical brain predisposed to criminal activity.

III. The End of Responsibility? Indeed, as the use of functional M.R.I. results becomes increasingly common in courtrooms, judges and juries may be asked to draw new and sometimes troubling lines between “normal” and “abnormal” brains. Ruben Gur, a professor of psychology at the University of Pennsylvania School of Medicine, specializes in doing just that. Gur began his expert-witness career in the mid-1990s when a colleague asked him to help in the trial of a convicted serial killer in Florida named Bobby Joe Long. Known as the “classified-ad rapist,” because he would respond to classified ads placed by women offering to sell household items, then rape and kill them, Long was sentenced to death after he committed at least nine murders in Tampa. Gur was called as a national expert in positron-emission tomography, or PET scans, in which patients are injected with a solution containing radioactive markers that illuminate their brain activity. After examining Long’s PET scans, Gur testified that a motorcycle accident that had left Long in a coma had also severely damaged his amygdala. It was after emerging from the coma that Long committed his first rape.

“I didn’t have the sense that my testimony had a profound impact,” Gur told me recently — Long is still filing appeals — but he has testified at more than 20 capital cases since then. He wrote a widely circulated affidavit arguing that adolescents are not as capable of controlling their impulses as adults because the development of neurons in the prefrontal cortex isn’t complete until the early 20s. Based on that affidavit, Gur was asked to contribute to the preparation of one of the briefs filed by neuroscientists and others in Roper v. Simmons, the landmark case in which a divided Supreme Court struck down the death penalty for offenders who committed crimes when they were under the age of 18.

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The leading neurolaw brief in the case, filed by the American Medical Association and other groups, argued that because “adolescent brains are not fully developed” in the prefrontal regions, adolescents are less able than adults to control their impulses and should not be held fully accountable “for the immaturity of their neural anatomy.” In his majority decision, Justice Anthony Kennedy declared that “as any parent knows and as the scientific and sociological studies” cited in the briefs “tend to confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults.’ ” Although Kennedy did not cite the neuroscience evidence specifically, his indirect reference to the scientific studies in the briefs led some supporters and critics to view the decision as the Brown v. Board of Education of neurolaw.

One important question raised by the Roper case was the question of where to draw the line in considering neuroscience evidence as a legal mitigation or excuse. Should courts be in the business of deciding when to mitigate someone’s criminal responsibility because his brain functions improperly, whether because of age, in-born defects or trauma? As we learn more about criminals’ brains, will we have to redefine our most basic ideas of justice?

Two of the most ardent supporters of the claim that neuroscience requires the redefinition of guilt and punishment are Joshua D. Greene, an assistant professor of psychology at Harvard, and Jonathan D. Cohen, a professor of psychology who directs the neuroscience program at Princeton. Greene got Cohen interested in the legal implications of neuroscience, and together they conducted a series of experiments exploring how people’s brains react to moral dilemmas involving life and death. In particular, they wanted to test people’s responses in the f.M.R.I. scanner to variations of the famous trolley problem, which philosophers have been arguing about for decades.

The trolley problem goes something like this: Imagine a train heading toward five people who are going to die if you don’t do anything. If you hit a switch, the train veers onto a side track and kills another person. Most people confronted with this scenario say it’s O.K. to hit the switch. By contrast, imagine that you’re standing on a footbridge that spans the train tracks, and the only way you can save the five people is to push an obese man standing next to you off the footbridge so that his body stops the train. Under these circumstances, most people say it’s not O.K. to kill one person to save five.

“I wondered why people have such clear intuitions,” Greene told me, “and the core idea was to confront people with these two cases in the scanner and see if we got more of an emotional response in one case and reasoned response in the other.” As it turns out, that’s precisely what happened: Greene and Cohen found that the brain region associated with deliberate problem solving and self-control, the dorsolateral prefrontal cortex, was especially active when subjects confronted the first trolley hypothetical, in which most of them made a utilitarian judgment about how to save the greatest number of lives. By contrast, emotional centers in the brain were more active when subjects confronted the second trolley hypothetical, in which they tended to recoil at the idea of personally harming an individual, even under such wrenching circumstances. “This suggests that moral judgment is not a single thing; it’s intuitive emotional responses and then cognitive responses that are duking it out,” Greene said.

“To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain,” Greene says. “If that’s right, it radically changes the way we think about the law. The official line in the law is all that matters is whether you’re rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control.” In other words, even someone who has the illusion of making a free and rational choice between soup and salad may be deluding himself, since the choice of salad over soup is ultimately predestined by forces hard-wired in his brain. Greene insists that this insight means that the criminal-justice system should abandon the idea of retribution — the idea that bad people should be punished because they have freely chosen to act immorally — which has been the focus of American criminal law since the 1970s, when rehabilitation went out of fashion. Instead, Greene says, the law should focus on deterring future harms. In some cases, he supposes, this might mean lighter punishments. “If it’s really true that we don’t get any prevention bang from our punishment buck when we punish that person, then it’s not worth punishing that person,” he says. (On the other hand, Carter Snead, the Notre Dame scholar, maintains that capital defendants who are not considered fully blameworthy under current rules could be executed more readily under a system that focused on preventing future harms.)

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Others agree with Greene and Cohen that the legal system should be radically refocused on deterrence rather than on retribution. Since the celebrated M’Naughten case in 1843, involving a paranoid British assassin, English and American courts have recognized an insanity defense only for those who are unable to appreciate the difference between right and wrong. (This is consistent with the idea that only rational people can be held criminally responsible for their actions.) According to some neuroscientists, that rule makes no sense in light of recent brain-imaging studies. “You can have a horrendously damaged brain where someone knows the difference between right and wrong but nonetheless can’t control their behavior,” says Robert Sapolsky, a neurobiologist at Stanford. “At that point, you’re dealing with a broken machine, and concepts like punishment and evil and sin become utterly irrelevant. Does that mean the person should be dumped back on the street? Absolutely not. You have a car with the brakes not working, and it shouldn’t be allowed to be near anyone it can hurt.”

Even as these debates continue, some skeptics contend that both the hopes and fears attached to neurolaw are overblown. “There’s nothing new about the neuroscience ideas of responsibility; it’s just another material, causal explanation of human behavior,” says Stephen J. Morse, professor of law and psychiatry at the University of Pennsylvania. “How is this different than the Chicago school of sociology,” which tried to explain human behavior in terms of environment and social structures? “How is it different from genetic explanations or psychological explanations? The only thing different about neuroscience is that we have prettier pictures and it appears more scientific.”

Morse insists that “brains do not commit crimes; people commit crimes” — a conclusion he suggests has been ignored by advocates who, “infected and inflamed by stunning advances in our understanding of the brain . . . all too often make moral and legal claims that the new neuroscience . . . cannot sustain.” He calls this “brain overclaim syndrome” and cites as an example the neuroscience briefs filed in the Supreme Court case Roper v. Simmons to question the juvenile death penalty. “What did the neuroscience add?” he asks. If adolescent brains caused all adolescent behavior, “we would expect the rates of homicide to be the same for 16- and 17-year-olds everywhere in the world — their brains are alike — but in fact, the homicide rates of Danish and Finnish youths are very different than American youths.” Morse agrees that our brains bring about our behavior — “I’m a thoroughgoing materialist, who believes that all mental and behavioral activity is the causal product of physical events in the brain” — but he disagrees that the law should excuse certain kinds of criminal conduct as a result. “It’s a total non sequitur,” he says. “So what if there’s biological causation? Causation can’t be an excuse for someone who believes that responsibility is possible. Since all behavior is caused, this would mean all behavior has to be excused.” Morse cites the case of Charles Whitman, a man who, in 1966, killed his wife and his mother, then climbed up a tower at the University of Texas and shot and killed 13 more people before being shot by police officers. Whitman was discovered after an autopsy to have a tumor that was putting pressure on his amygdala. “Even if his amygdala made him more angry and volatile, since when are anger and volatility excusing conditions?” Morse asks. “Some people are angry because they had bad mommies and daddies and others because their amygdalas are mucked up. The question is: When should anger be an excusing condition?”

Still, Morse concedes that there are circumstances under which new discoveries from neuroscience could challenge the legal system at its core. “Suppose neuroscience could reveal that reason actually plays no role in determining human behavior,” he suggests tantalizingly. “Suppose I could show you that your intentions and your reasons for your actions are post hoc rationalizations that somehow your brain generates to explain to you what your brain has already done” without your conscious participation. If neuroscience could reveal us to be automatons in this respect, Morse is prepared to agree with Greene and Cohen that criminal law would have to abandon its current ideas about responsibility and seek other ways of protecting society.

Some scientists are already pushing in this direction. In a series of famous experiments in the 1970s and ’80s, Benjamin Libet measured people’s brain activity while telling them to move their fingers whenever they felt like it. Libet detected brain activity suggesting a readiness to move the finger half a second before the actual movement and about 400 milliseconds before people became aware of their conscious intention to move their finger. Libet argued that this leaves 100 milliseconds for the conscious self to veto the brain’s unconscious decision, or to give way to it — suggesting, in the words of the neuroscientist Vilayanur S. Ramachandran, that we have not free will but “free won’t.”

Morse is not convinced that the Libet experiments reveal us to be helpless automatons. But he does think that the study of our decision-making powers could bear some fruit for the law. “I’m interested,” he says, “in people who suffer from drug addictions, psychopaths and people who have intermittent explosive disorder — that’s people who have no general rationality problem other than they just go off.” In other words, Morse wants to identify the neural triggers that make people go postal. “Suppose we could show that the higher deliberative centers in the brain seem to be disabled in these cases,” he says. “If these are people who cannot control episodes of gross irrationality, we’ve learned something that might be relevant to the legal ascription of responsibility.” That doesn’t mean they would be let off the hook, he emphasizes: “You could give people a prison sentence and an opportunity to get fixed.”

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IV. Putting the Unconscious on Trial If debates over criminal responsibility long predate the f.M.R.I., so do debates over the use of lie-detection technology. What’s new is the prospect that lie detectors in the courtroom will become much more accurate, and correspondingly more intrusive. There are, at the moment, two lie-detection technologies that rely on neuroimaging, although the value and accuracy of both are sharply contested. The first, developed by Lawrence Farwell in the 1980s, is known as “brain fingerprinting.” Subjects put on an electrode-filled helmet that measures a brain wave called p300, which, according to Farwell, changes its frequency when people recognize images, pictures, sights and smells. After showing a suspect pictures of familiar places and measuring his p300 activation patterns, government officials could, at least in theory, show a suspect pictures of places he may or may not have seen before — a Qaeda training camp, for example, or a crime scene — and compare the activation patterns. (By detecting not only lies but also honest cases of forgetfulness, the technology could expand our very idea of lie detection.)

The second lie-detection technology uses f.M.R.I. machines to compare the brain activity of liars and truth tellers. It is based on a test called Guilty Knowledge, developed by Daniel Langleben at the University of Pennsylvania in 2001. Langleben gave subjects a playing card before they entered the magnet and told them to answer no to a series of questions, including whether they had the card in question. Langleben and his colleagues found that certain areas of the brain lighted up when people lied.

Two companies, No Lie MRI and Cephos, are now competing to refine f.M.R.I. lie-detection technology so that it can be admitted in court and commercially marketed. I talked to Steven Laken, the president of Cephos, which plans to begin selling its products this year. “We have two to three people who call every single week,” he told me. “They’re in legal proceedings throughout the world, and they’re looking to bolster their credibility.” Laken said the technology could have “tremendous applications” in civil and criminal cases. On the government side, he said, the technology could replace highly inaccurate polygraphs in screening for security clearances, as well as in trying to identify suspected terrorists’ native languages and close associates. “In lab studies, we’ve been in the 80- to 90-percent-accuracy range,” Laken says. This is similar to the accuracy rate for polygraphs, which are not considered sufficiently reliable to be allowed in most legal cases. Laken says he hopes to reach the 90-percent- to 95-percent-accuracy range — which should be high enough to satisfy the Supreme Court’s standards for the admission of scientific evidence. Judy Illes, director of Neuroethics at the Stanford Center for Biomedical Ethics, says, “I would predict that within five years, we will have technology that is sufficiently reliable at getting at the binary question of whether someone is lying that it may be utilized in certain legal settings.”

If and when lie-detection f.M.R.I.’s are admitted in court, they will raise vexing questions of self-incrimination and privacy. Hank Greely, a law professor and head of the Stanford Center for Law and the Biosciences, notes that prosecution and defense witnesses might have their credibility questioned if they refused to take a lie-detection f.M.R.I., as might parties and witnesses in civil cases. Unless courts found the tests to be shocking invasions of privacy, like stomach pumps, witnesses could even be compelled to have their brains scanned. And equally vexing legal questions might arise as neuroimaging technologies move beyond telling whether or not someone is lying and begin to identify the actual content of memories. Michael Gazzaniga, a professor of psychology at the University of California, Santa Barbara, and author of “The Ethical Brain,” notes that within 10 years, neuroscientists may be able to show that there are neurological differences when people testify about their own previous acts and when they testify to something they saw. “If you kill someone, you have a procedural memory of that, whereas if I’m standing and watch you kill somebody, that’s an episodic memory that uses a different part of the brain,” he told me. Even if witnesses don’t have their brains scanned, neuroscience may lead judges and jurors to conclude that certain kinds of memories are more reliable than others because of the area of the brain in which they are processed. Further into the future, and closer to science fiction, lies the possibility of memory downloading. “One could even, just barely, imagine a technology that might be able to ‘read out’ the witness’s memories, intercepted as neuronal firings, and translate it directly into voice, text or the equivalent of a movie,” Hank Greely writes.

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Greely acknowledges that lie-detection and memory-retrieval technologies like this could pose a serious challenge to our freedom of thought, which is now defended largely by the First Amendment protections for freedom of expression. “Freedom of thought has always been buttressed by the reality that you could only tell what someone thought based on their behavior,” he told me. “This technology holds out the possibility of looking through the skull and seeing what’s really happening, seeing the thoughts themselves.” According to Greely, this may challenge the principle that we should be held accountable for what we do, not what we think. “It opens up for the first time the possibility of punishing people for their thoughts rather than their actions,” he says. “One reason thought has been free in the harshest dictatorships is that dictators haven’t been able to detect it.” He adds, “Now they may be able to, putting greater pressure on legal constraints against government interference with freedom of thought.”

In the future, neuroscience could also revolutionize the way jurors are selected. Steven Laken, the president of Cephos, says that jury consultants might seek to put prospective jurors in f.M.R.I.’s. “You could give videotapes of the lawyers and witnesses to people when they’re in the magnet and see what parts of their brains light up,” he says. A situation like this would raise vexing questions about jurors’ prejudices — and what makes for a fair trial. Recent experiments have suggested that people who believe themselves to be free of bias may harbor plenty of it all the same.

The experiments, conducted by Elizabeth Phelps, who teaches psychology at New York University, combine brain scans with a behavioral test known as the Implicit Association Test, or I.A.T., as well as physiological tests of the startle reflex. The I.A.T. flashes pictures of black and white faces at you and asks you to associate various adjectives with the faces. Repeated tests have shown that white subjects take longer to respond when they’re asked to associate black faces with positive adjectives and white faces with negative adjectives than vice versa, and this is said to be an implicit measure of unconscious racism. Phelps and her colleagues added neurological evidence to this insight by scanning the brains and testing the startle reflexes of white undergraduates at Yale before they took the I.A.T. She found that the subjects who showed the most unconscious bias on the I.A.T. also had the highest activation in their amygdalas — a center of threat perception — when unfamiliar black faces were flashed at them in the scanner. By contrast, when subjects were shown pictures of familiar black and white figures — like Denzel Washington, Martin Luther King Jr. and Conan O’Brien — there was no jump in amygdala activity.

The legal implications of the new experiments involving bias and neuroscience are hotly disputed. Mahzarin R. Banaji, a psychology professor at Harvard who helped to pioneer the I.A.T., has argued that there may be a big gap between the concept of intentional bias embedded in law and the reality of unconscious racism revealed by science. When the gap is “substantial,” she and the U.C.L.A. law professor Jerry Kang have argued, “the law should be changed to comport with science” — relaxing, for example, the current focus on intentional discrimination and trying to root out unconscious bias in the workplace with “structural interventions,” which critics say may be tantamount to racial quotas. One legal scholar has cited Phelps’s work to argue for the elimination of peremptory challenges to prospective jurors — if most whites are unconsciously racist, the argument goes, then any decision to strike a black juror must be infected with racism. Much to her displeasure, Phelps’s work has been cited by a journalist to suggest that a white cop who accidentally shot a black teenager on a Brooklyn rooftop in 2004 must have been responding to a hard-wired fear of unfamiliar black faces — a version of the amygdala made me do it.

Phelps herself says it’s “crazy” to link her work to cops who shoot on the job and insists that it is too early to use her research in the courtroom. “Part of my discomfort is that we haven’t linked what we see in the amygdala or any other region of the brain with an activity outside the magnet that we would call racism,” she told me. “We have no evidence whatsoever that activity in the brain is more predictive of things we care about in the courtroom than the behaviors themselves that we correlate with brain function.” In other words, just because you have a biased reaction to a photograph doesn’t mean you’ll act on those biases in the workplace. Phelps is also concerned that jurors might be unduly influenced by attention-grabbing pictures of brain scans. “Frank Keil, a psychologist at Yale, has done research suggesting that when you have a picture of a mechanism, you have a tendency to overestimate how much you understand the mechanism,” she told me. Defense lawyers confirm this phenomenon. “Here was this nice color image we could enlarge, that the medical expert could point to,” Christopher Plourd, a San Diego criminal defense lawyer, told The Los Angeles Times in the early 1990s. “It documented that this guy had a rotten spot in his brain. The jury glommed onto that.”

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Other scholars are even sharper critics of efforts to use scientific experiments about unconscious bias to transform the law. “I regard that as an extraordinary claim that you could screen potential jurors or judges for bias; it’s mind-boggling,” I was told by Philip Tetlock, professor at the Haas School of Business at the University of California at Berkley. Tetlock has argued that split-second associations between images of African-Americans and negative adjectives may reflect “simple awareness of the social reality” that “some groups are more disadvantaged than others.” He has also written that, according to psychologists, “there is virtually no published research showing a systematic link between racist attitudes, overt or subconscious, and real-world discrimination.” (A few studies show, Tetlock acknowledges, that openly biased white people sometimes sit closer to whites than blacks in experiments that simulate job hiring and promotion.) “A light bulb going off in your brain means nothing unless it’s correlated with a particular output, and the brain-scan stuff, heaven help us, we have barely linked that with anything,” agrees Tetlock’s co-author, Amy Wax of the University of Pennsylvania Law School. “The claim that homeless people light up your amygdala more and your frontal cortex less and we can infer that you will systematically dehumanize homeless people — that’s piffle.”

V. Are You Responsible for What You Might Do? The attempt to link unconscious bias to actual acts of discrimination may be dubious. But are there other ways to look inside the brain and make predictions about an individual’s future behavior? And if so, should those discoveries be employed to make us safer? Efforts to use science to predict criminal behavior have a disreputable history. In the 19th century, the Italian criminologist Cesare Lombroso championed a theory of “biological criminality,” which held that criminals could be identified by physical characteristics, like large jaws or bushy eyebrows. Nevertheless, neuroscientists are trying to find the factors in the brain associated with violence. PET scans of convicted murderers were first studied in the late 1980s by Adrian Raine, a professor of psychology at the University of Southern California; he found that their prefrontal cortexes, areas associated with inhibition, had reduced glucose metabolism and suggested that this might be responsible for their violent behavior. In a later study, Raine found that subjects who received a diagnosis of antisocial personality disorder, which correlates with violent behavior, had 11 percent less gray matter in their prefrontal cortexes than control groups of healthy subjects and substance abusers. His current research uses f.M.R.I.’s to study moral decision-making in psychopaths.

Neuroscience, it seems, points two ways: it can absolve individuals of responsibility for acts they’ve committed, but it can also place individuals in jeopardy for acts they haven’t committed — but might someday. “This opens up a Pandora’s box in civilized society that I’m willing to fight against,” says Helen S. Mayberg, a professor of psychiatry, behavioral sciences and neurology at Emory University School of Medicine, who has testified against the admission of neuroscience evidence in criminal trials. “If you believe at the time of trial that the picture informs us about what they were like at the time of the crime, then the picture moves forward. You need to be prepared for: ‘This spot is a sign of future dangerousness,’ when someone is up for parole. They have a scan, the spot is there, so they don’t get out. It’s carved in your brain.”

Other scholars see little wrong with using brain scans to predict violent tendencies and sexual predilections — as long as the scans are used within limits. “It’s not necessarily the case that if predictions work, you would say take that guy off the street and throw away the key,” says Hank Greely, the Stanford law professor. “You could require counseling, surveillance, G.P.S. transmitters or warning the neighbors. None of these are necessarily benign, but they beat the heck out of preventative detention.” Greely has little doubt that predictive technologies will be enlisted in the war on terror — perhaps in radical ways. “Even with today’s knowledge, I think we can tell whether someone has a strong emotional reaction to seeing things, and I can certainly imagine a friend-versus-foe scanner. If you put everyone who reacts badly to an American flag in a concentration camp or Guantánamo, that would be bad, but in an occupation situation, to mark someone down for further surveillance, that might be appropriate.”

Paul Root Wolpe, who teaches social psychiatry and psychiatric ethics at the University of Pennsylvania School of Medicine, says he anticipates that neuroscience predictions will move beyond the courtroom and will be used to make predictions about citizens in all walks of life.

“Will we use brain imaging to track kids in school because we’ve discovered that certain brain function or morphology suggests aptitude?” he asks. “I work for NASA, and imagine how helpful it might be for NASA if it could scan your brain to discover whether you have a good enough spatial sense to be a pilot.” Wolpe says that brain imaging might eventually be used to decide if someone is a worthy foster or adoptive parent — a history of major depression and cocaine abuse can leave telltale signs on the brain, for example, and future studies might find parts of the brain that correspond to nurturing and caring.

=================

(Page 9 of 9)



The idea of holding people accountable for their predispositions rather than their actions poses a challenge to one of the central principles of Anglo-American jurisprudence: namely, that people are responsible for their behavior, not their proclivities — for what they do, not what they think. “We’re going to have to make a decision about the skull as a privacy domain,” Wolpe says. Indeed, Wolpe serves on the board of an organization called the Center for Cognitive Liberty and Ethics, a group of neuroscientists, legal scholars and privacy advocates “dedicated to protecting and advancing freedom of thought in the modern world of accelerating neurotechnologies.”

There may be similar “cognitive liberty” battles over efforts to repair or enhance broken brains. A remarkable technique called transcranial magnetic stimulation, for example, has been used to stimulate or inhibit specific regions of the brain. It can temporarily alter how we think and feel. Using T.M.S., Ernst Fehr and Daria Knoch of the University of Zurich temporarily disrupted each side of the dorsolateral prefrontal cortex in test subjects. They asked their subjects to participate in an experiment that economists call the ultimatum game. One person is given $20 and told to divide it with a partner. If the partner rejects the proposed amount as too low, neither person gets any money. Subjects whose prefrontal cortexes were functioning properly tended to reject offers of $4 or less: they would rather get no money than accept an offer that struck them as insulting and unfair. But subjects whose right prefrontal cortexes were suppressed by T.M.S. tended to accept the $4 offer. Although the offer still struck them as insulting, they were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing.

Some neuroscientists believe that T.M.S. may be used in the future to enforce a vision of therapeutic justice, based on the idea that defective brains can be cured. “Maybe somewhere down the line, a badly damaged brain would be viewed as something that can heal, like a broken leg that needs to be repaired,” the neurobiologist Robert Sapolsky says, although he acknowledges that defining what counts as a normal brain is politically and scientifically fraught. Indeed, efforts to identify normal and abnormal brains have been responsible for some of the darkest movements in the history of science and technology, from phrenology to eugenics. “How far are we willing to go to use neurotechnology to change people’s brains we consider disordered?” Wolpe asks. “We might find a part of the brain that seems to be malfunctioning, like a discrete part of the brain operative in violent or sexually predatory behavior, and then turn off or inhibit that behavior using transcranial magnetic stimulation.” Even behaviors in the normal range might be fine-tuned by T.M.S.: jurors, for example, could be made more emotional or more deliberative with magnetic interventions. Mark George, an adviser to the Cephos company and also director of the Medical University of South Carolina Center for Advanced Imaging Research, has submitted a patent application for a T.M.S. procedure that supposedly suppresses the area of the brain involved in lying and makes a person less capable of not telling the truth.

As the new technologies proliferate, even the neurolaw experts themselves have only begun to think about the questions that lie ahead. Can the police get a search warrant for someone’s brain? Should the Fourth Amendment protect our minds in the same way that it protects our houses? Can courts order tests of suspects’ memories to determine whether they are gang members or police informers, or would this violate the Fifth Amendment’s ban on compulsory self-incrimination? Would punishing people for their thoughts rather than for their actions violate the Eighth Amendment’s ban on cruel and unusual punishment? However astonishing our machines may become, they cannot tell us how to answer these perplexing questions. We must instead look to our own powers of reasoning and intuition, relatively primitive as they may be. As Stephen Morse puts it, neuroscience itself can never identify the mysterious point at which people should be excused from responsibility for their actions because they are not able, in some sense, to control themselves. That question, he suggests, is “moral and ultimately legal,” and it must be answered not in laboratories but in courtrooms and legislatures. In other words, we must answer it ourselves.

[Crafty_Dog]

In Defense of the Constitution
News & Analysis
010/07  March 19, 2007

Americans:  We Were All on US Airways Flight 300

On 13 March, the Council on American-Islamic Relations (CAIR) announced that six imams who had disrupted a US Airways flight by engaging in suspicious behavior, have filed a lawsuit against US Airways and the Minnesota Metropolitan Airport Commission (MAC) claiming a laundry-list of civil rights violations:

http://www.cair.com/default.asp?Page=articleView&id=2615&theType=NR

In addition to suing the airline and the MAC, the "Magnificent Six" are going after unknown gate agents, other unknown employees of US Airways, and "John Does"; currently unidentified passengers who, according to the complaint, had the effrontery to dare to report the suspicious activities of the Magnificent Six to authorities:

http://www.cair.com/pdf/usairwayscomplaint.pdf

The following was written by Katherine Kersten on 14 March and appeared in the StarTribune.com:
 
"The imams' attempt to bully ordinary passengers marks an alarming new front in the war on airline security. Average folks, "John Does" like you and me, initially observed and reported the imams' suspicious behavior on Nov. 20. Such people are our "first responders" against terrorism. But the imams' suit may frighten such individuals into silence, as they seek to avoid the nightmare of being labeled bigots and named as defendants."

"Ironically, on the day the imams filed their suit, a troubling internal memo came to light at the Minneapolis-St. Paul International Airport. The memo revealed that our airport is at particular risk of terrorist attack because of its proximity to the Mall of America, its employment of relatively few security officers and other factors. The memo advised heightened vigilance to counter "this very real and deliberate threat."

http://www.startribune.com/191/story/1055656.html

All non-Muslim Americans have been officially put on notice by CAIR that they report the suspicious activities of Muslims at risk of legal action. 

However, what about the role of the federal and state governments, which routinely ask citizens to report "suspicious activity" even if they are not quite sure it is dangerous on the presumption that "it's better to be safe than sorry?  Who do we listen to, an Islamist terrorist supporting "civil rights" group, or our governments?

Let us ask ourselves, what is the ultimate goal of this lawsuit?  Could it possibly be to make citizens second-guess themselves when they witness a possible terrorist act or precursor probe and to err on the side of not reporting under threat of lawsuit?  Why does CAIR apparently support the ending of this "first line of defense"? 

One thing we are certain of: it has absolutely nothing to do with civil rights, Muslim or otherwise. 

As this case moves to trial, we hope all Americans will stand in solidarity with the passengers,  US Airways, and its employees who were terrorized that day.

When the trial opens, we should all remember that we were passengers on US Airways Flight 300 that day.because if the Magnificent Six win their case, what person in their right mind will want to travel by air within the United States, knowing that security personnel are under orders to ignore Middle Eastern passengers, no matter how suspicious their activities?

Andrew Whitehead
Director
Anti-CAIR (ACAIR)
ajwhitehead@anti-cair-net.org
www.anti-cair-net.org
====================
Opinion Journal WSJ

A Hitchhiker's Guide to Village Idiocy

In the opening chapter of Douglas Adams's "The Hitchhiker's Guide to the Galaxy," the protagonist, Englishman Arthur Dent, awakes to find bulldozers poised to knock down his home to make room for a highway bypass. An added irony, the Earth is about to be demolished by the Vogons to clear a path for a hyperspace bypass. In both instances, the agents of bureaucratic destruction defend their actions by claiming they had given ample notice to any who might want to lodge a challenge.

New Yorker Bill Brody must know how the fictional Mr. Dent felt. In the late 1990s, he purchased four buildings in the New York suburb of Port Chester. The village issued him permits to renovate the buildings, which he did, and filled them with business tenants. What the village didn't tell Mr. Brody at the time it issued the renovation permits was that it intended to take his property under the law of eminent domain, not for a highway or school, but to give to another private entity, G&S Investors, to build a convenience store and parking lot as part of a larger development plan that included a Costco and a multiplex.

Under state law at the time, government agencies were not required to notify property owners directly of their plans to seize their land. All that was required was for a legal classified ad to be published in a newspaper, which didn't even have to inform the potential victims that they would be waiving their rights to challenge the decision in court if they didn't file a lawsuit within 30 days of the ad's publication. (The state legislature has since amended the law, though New Yorkers still bear a heavy onus in defending their rights.)

Represented by the Institute of Justice, which has a history of defending property owners in eminent-domain cases, Mr. Brody struck a blow for property rights when the Second U.S. Circuit Court of Appeals ruled in late 2005 that the Village of Port Chester had violated his 14th Amendment right to due process by condemning his property for private development without notifying him of his one opportunity to challenge the plan. That decision sent the case back to the district court where Mr. Brody can try to receive damages for the confiscated property that was demolished in 2004.

This week his case will be heard again in New York. Let's hope justice prevails for this real-life Arthur Dent.

[Crafty_Dog]

Three Cheers for Lawyers
Don't think a good defense attorney matters? Think again.

BY RANDY E. BARNETT
Tuesday, April 17, 2007 12:01 a.m. EDT
WSJ

Years ago, I appeared on "The Ricki Lake Show" in an episode about persons who had been freed on appeal after being wrongfully convicted of crimes. As a former criminal prosecutor with the Cook County State's Attorney's Office in Chicago, I was there to represent the "prosecution viewpoint" (whatever that might be), along with the leader of New York's Guardian Angels representing the "victims' viewpoint."

The other guests consisted of innocent persons whose convictions had been reversed, their appellate lawyers, their parents and a reporter who had helped vindicate a father wrongfully convicted of murdering his young daughter. As I approached the set, I wondered what I could possibly say that would ward off the hoots of the audience, especially given that I was just as appalled by wrongful convictions and prosecutorial abuses.

The point I decided to make was simple: For better or worse, we have an adversary legal system that relies for its proper operation on having competent lawyers on both sides. In every case I knew about where an innocent person had been convicted, there had been an incompetent defense lawyer at the pretrial and trial stages.

The reaction of the others on the stage with me was stunning. The former defendants all began nodding their heads while their lawyers, who represented them on appeal but not at trial, sat sullenly beside them. Afterwards, some parents even came up to shake my hand.





The crucial importance of defense lawyers was illustrated in reverse by the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper's highly unusual affirmation of the defendants' complete innocence. Others are rightly focusing on the "perfect storm," generated by a local prosecutor up for election peddling to his constituents a racially-charged narrative that so neatly fit the ideological template of those who dominate academia and the media. But perhaps we should stop for a moment to consider what saved these young men: defense attorneys, blogs and competing governments.
Our criminal justice system does not rely solely on the fairness of the police and prosecutors to get things right. In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done. This "professional" is a lawyer. The next time you hear a lawyer joke, maybe you'll think of the lawyers who represented these three boys and it won't seem so funny. You probably can't picture their faces and don't know their names. (They include Joe Cheshire, Jim Cooney, Michael Cornacchia, Bill Cotter, Wade Smith and the late Kirk Osborn.) That's because they put their zealous representation of their clients ahead of their own egos and fame. Without their lawyering skills, we would not today be speaking so confidently of their clients' innocence.

These lawyers held the prosecutor's feet to the fire. Their skillful questioning at pre-trial hearings revealed the prosecutor's misconduct that eventually forced him to give up control of the case and now threatens his law license. They uncovered compelling exculpatory evidence and made it available to the press; they let their clients and their families air their story in the national media.

There is no rule book for what prosecutors call "heater" cases like this one. Navigating the law, politics and publicity in such case is an art not a science. These fine lawyers displayed all the skills and tenacity that made me want to be a criminal trial lawyer after watching the television series, "The Defenders," when I was 10 years old.

Do you suppose that lawyers like these gained their skills only representing the innocent? Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.

As a prosecutor working "felony review," when I was in a Chicago police station at 3 a.m. deciding whether to approve charges, I had to evaluate the evidence as if I were a defense attorney. Where is the murder weapon? Where are the proceeds of the robbery? How credible are the witnesses? How was the identification of the accused conducted?

In this way, the mere prospect of a competent defense attorney scrutinizing the evidence in the future provides a powerful deterrent to pursuing weak cases even before anyone is charged. Thanks to defense lawyers defending the innocent and guilty alike, prosecutors generally win their cases because they avoid weak cases they may lose. (After the charging stage, a prosecutor's ability to avoid losing at trial by plea bargaining weak cases is a serious, but separate and complex issue.)

Paradoxically, the system's overall accuracy makes defending the truly innocent all the harder. While knowing that mistakes do happen, the accuracy of the system leads everyone, including defense lawyers, to assume that anyone who is charged is probably guilty. After all, they usually are. Notwithstanding the legal "presumption of innocence," in a system that generally gets it right, there is a pragmatic presumption of guilt.

Consequently, effectively defending the innocent usually requires the ability to prove your client's innocence. And that's not easy. Further, because representing the guilty consists mainly of negotiating pleas or knocking holes in the prosecutor's case, defense lawyers do not always develop the skills needed to effectively defend the truly innocent or, as important, know when to deploy them. Defense lawyers become as skeptical about their clients' claims of innocence as everyone else, if not more so. All this contributes to inadequate defense lawyering, which thankfully did not occur here.





Good lawyering alone, however, was not enough to free the Duke players. While the "mainstream" press largely swallowed District Attorney Mike Nifong's narrative of racial oppression, the blogs--especially history professor Robert "K.C." Johnson's blog Durham-in-Wonderland (durhamwonderland.blogspot.com)--provided the means by which the public could learn about the fruits of the defense's efforts. (Mr. Johnson's own difficulty in 2002 obtaining tenure at Brooklyn College over ideologically-motivated opposition was chronicled on this page by Dorothy Rabinowitz, who also, true-to-form, came to the defense of the Duke Lacrosse players.)
Finally, without the competing governing powers of the North Carolina state bar, the Attorney General's office, and potentially the U.S. Justice Department, there would simply have been no one in authority to rein in this prosecutor. It is worth noting, to those who champion political accountability as the highest form of legitimacy, that District Attorney Nifong was elected by, and presumably "accountable" to, his constituents. Nevertheless, his power needed to be checked by competing government agencies and a free press.

Rather than praising the defense lawyers, some of the same folks who whooped in support of Mr. Nifong's efforts are now bemoaning that it was the supposed wealth of these students' parents that enabled them to mount so effective a defense. Never mind that draining all their savings and putting them in debt is an additional injustice resulting from this wrongful prosecution. Of course, as my grandfather used to say, "rich or poor, it's nice to have money," but this case shows that wealth is no defense to public ruin. Sometimes it even invites it.

Let us not be distracted all over again. The difficult problem of innocent defendants typically arises in run-of-the mill cases where prosecutors acting in good faith have no reason to doubt their guilt. It results in part from the pragmatic presumption of guilt, which leads to inadequate defense lawyering, an indifferent press and an oblivious public. There are no easy solutions to this. But refraining from ridiculing lawyers in general, and criminal defense lawyers in particular, would be a nice start, and one that lies within the power of everyone reading these words.

Mr. Barnett is a professor at the Georgetown University Law Center and author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2004).

[Crafty_Dog]

I am pleasantly surprised to see that the State of NC is going after this abusive POS.   
===========================

Ethics Hearing for Duke Prosecutor
 
By DUFF WILSON
Published: June 13, 2007
RALEIGH, N.C., June 12 — Two months after the North Carolina attorney general dismissed sexual assault charges against three former Duke University lacrosse players, the prosecutor who brought the case found himself in a crowded courtroom Tuesday, facing charges that could lead to his own disbarment.

Ethics Complaint (N.C. State Bar v. Nifong)

Dismissal of Charges (N.C. v. Finnerty, et al.)Michael B. Nifong, the Durham district attorney, was portrayed by Katherine Jean, a state attorney prosecuting the ethics case, as a politically motivated, overzealous prosecutor who made false statements to the public, news media, defense lawyers and the court in bringing a case with virtually no credible evidence.

“The harm done to these three young men and their families and the justice system of North Carolina is devastating,” Ms. Jean said.

Mr. Nifong’s lawyer, David B. Freedman, responded that the ethics case was not about the weaknesses of the rape case, but primarily focused on whether Mr. Nifong had asked a laboratory director to hide DNA evidence. Mr. Freedman acknowledged in opening statements that some of Mr. Nifong’s public statements “clearly were outlandish” — for instance, he called the Duke lacrosse team “a bunch of hooligans” — but denied he had said anything knowingly false or politically motivated.

Mr. Nifong, 58, a 29-year career prosecutor who was running for election when the case arose in March 2006, is expected to take the stand this week. He sat expressionless during the opening remarks, often holding his chin and cheek by thumb and forefinger. His wife, teenage son, brother and sister sat behind him.

Two of the three former students’ mothers watched opening arguments, with a group of defense lawyers and other supporters whose insistence of innocence had been upheld in April by the state attorney general, Roy A. Cooper, who called Mr. Nifong a “rogue prosecutor.”

The ethics charges were filed by the North Carolina State Bar, a state agency, asserting that Mr. Nifong hid and lied about DNA evidence and that his pretrial comments inflamed the community and prejudiced the defendants.

While the ethics charges are limited to certain areas, the witness list shows it will be putting the whole case on trial, at least to try to show Mr. Nifong knew some of his public comments were false. For instance, he repeatedly said he was certain a rape had occurred.

Benjamin W. Himan, the Durham detective who was lead investigator on the case, said in testimony for the ethics prosecutors on Tuesday that Mr. Nifong had acknowledged to him that the case was weak and relied on the word of a woman hired to strip at a lacrosse team party.

Mr. Himan said he had responded with disbelief when he learned that after a month of inconclusive investigation, Mr. Nifong planned to indict two students. “With what?” Mr. Himan said he responded. At that point, he said, the police did not even know whether one suspect had been at the lacrosse team party. (It turned out he was there but left before any rape could have possibly happened.)

Mr. Himan also said he was “shocked” and “upset” that an investigator for the district attorney later interviewed the accuser by himself, not inviting him as the police investigator. When he read the results of that interview, Mr. Himan said, “It didn’t make any sense to what she had previously told us.”

Joseph B. Cheshire, a defense lawyer involved with the case, said in an interview later that Mr. Himan’s testimony was “chilling” and showed the potentially unchecked power of the state to destroy peoples’ lives even if the evidence did not exist.

Mr. Freedman, one of two lawyers for Mr. Nifong, said after the hearing that he looked forward to cross-examining Mr. Himan on Wednesday and presenting his side of the case — including testimony from Mr. Nifong — later in the week.

Mr. Nifong declined comment.

A decision on the ethics charges may come by Friday or Saturday and could result in penalties as severe as disbarment.

In coming weeks, Mr. Nifong is also facing two separate reviews by Superior Court judges, one on whether to remove him as district attorney, the other on whether he lied in court describing DNA evidence.

The case was overlaid with charges of racism and class privilege because the stripper was black and poor, inflamed the community and much of the nation.

Victoria Peterson, a black activist from Durham, was ejected from the courtroom and courthouse Tuesday after she accosted one mother during the lunch break and said people still thought her son did something wrong and should have stood trial.

[Crafty_Dog]

Certainly the NYTimes is a suspect source, especially with long-time nemesis Robert Bork, but this certainly sounds pretty bad for RB.
=======================

Bork v. Bork
             
Published: June 14, 2007
NY Times editorial

There are many versions of the cliché that “a conservative is a liberal who has been mugged,” and Robert Bork has just given rise to another. A tort plaintiff, it turns out, is a critic of tort lawsuits who has slipped and fallen at the Yale Club.

Mr. Bork, of course, is the former federal appeals court judge who was nominated to the Supreme Court in 1987 but not confirmed by the Senate. He has long been famous for his lack of sympathy for people who go to court with claims of race or sex discrimination, or other injustices. He has gotten particularly exercised about accident victims driving up the cost of business by filing lawsuits. In an op-ed article, he once complained that “juries dispense lottery-like windfalls,” and compared the civil justice system to “Barbary pirates.”

That was before Mr. Bork spoke at the Yale Club last year, and fell on his way to the dais, injuring his leg and bumping his head. Mr. Bork is not merely suing the club for failing to provide a set of stairs and a handrail between the floor and the dais. He has filed a suit that is so aggressive about the law that, if he had not filed it himself, we suspect he might regard it as, well, piratical.

Mr. Bork puts the actual damages for his apparently non-life-threatening injuries (after his fall, he was reportedly able to go on and deliver his speech) at “in excess of $1,000,000.” He is also claiming punitive damages. And he is demanding that the Yale Club pay his attorney’s fees.

We can imagine what Mr. Bork the legal scholar would ask if he had a chance to question Mr. Bork the plaintiff. If it was “reasonably foreseeable” that without stairs and a handrail, “a guest such as Mr. Bork” would be injured, why did Mr. Bork try to climb up to the dais? Where does personal responsibility enter in? And wouldn’t $1 million-plus punitive damages amount to a “lottery-like windfall”?

Since we believe in the tort system, when properly used, all we would ask is whether Mr. Bork’s unfortunate experience at the Yale Club has led him to re-evaluate any of the harsh things he has said in the past about injured people, much like himself, who simply wanted their day in court.

[Crafty_Dog]

WSJ

Kelo's Consequences
June 23, 2007; Page A10
Today marks the second anniversary of Kelo v. New London, the Supreme Court ruling that gave governments the authority to seize property on behalf of private developers. Since the 5-4 ruling, many state governments have taken some sort of action to limit these "takings." But in areas that legislators have failed to protect -- which usually turn out to be where low-income minorities reside -- citizens are still exposed to eminent domain abuse.

A recent study by the Institute for Justice compared the demographic characteristics of 184 areas targeted by eminent domain to the surrounding communities. The report shows that eminent domain disproportionately affects poor, ethnic minorities with lower levels of education. Minorities comprised 58% of the population in areas targeted by eminent domain, compared to 45% in the surrounding communities. The median income of residents targeted by eminent domain is less than $19,000 per year, compared to more than $23,000 elsewhere. And 25% live at or below the poverty line, versus only 16% elsewhere.

New Jersey resident Jim Keelen doesn't need statistics to define eminent-domain abuse. His home and business, located one block away from the Atlantic Ocean, have been slated for seizure by local government officials. His business, J&M Keelen Transportation Co., runs special-education transportation for public schools in two local counties.

If the government is successful in seizing his property, Mr. Keelen and his 85 employees -- most of them low-income minorities -- will be forced to vacate their office, a restored historical building, so that private developers can tear it down and put up condominiums in its place. His home, located next door, would be torn down as well.

New Jersey is one of 41 states that have enacted some kind of eminent domain reform. Florida and a couple of other states have done the most to limit eminent domain for private development, but others, such as New Jersey, still allow a loophole based on the definition of "blight." In effect, these laws form a patchwork of property rights that can leave many Americans vulnerable to politicians and local officials allied with rich private developers. (See Carla Main's feature.)

Congress is full of proposals to enact federal protections against eminent domain abuse, but so far no measure has gained political traction. Public support for legislative reform remains strong, however, with an overwhelming majority of Americans favoring some kind of limits on government takings. Opposition comes from city and state governments.

If the consequences of Kelo seem surprising, they were anticipated. In her powerful dissent in the case, Justice Sandra Day O'Connor wrote that "fallout from this decision will not be random." She predicted that "the government now has license to transfer property from those with fewer resources to those with more." Two years later, her predictions are coming true, and short of a Supreme Court reversal, more legislative protection for property rights is needed.

[Crafty_Dog]

WSJ
The 'Blight' Excuse
By CARLA T. MAIN
June 23, 2007; Page A11

In Brandon, Ore. there lives a one-armed man named Scott Cook who owns income-producing timberland. The state revoked his license to drive a truck on account of his having only one arm. Then the government decided it wasn't quite through with him: Now his land is being taken by the town by eminent domain, so his neighbor's golf resort can be expanded. The town likes the resort because it supplies jobs. Mr. Cook feels certain he will never get what his land is worth. He is outraged that his town would take land from one man to give to another.

This is called an "economic development" taking, and two years ago -- June 23, 2005 -- the nation was up in arms over this sort of thing. On that day the Supreme Court decided Kelo v. New London, and said that it is constitutional for the government to take your property and give it to someone else if doing so will rake in greater taxes for your town.

Americans were instantly united in bipartisan fury. The U.S. Congress swiftly passed a resolution condemning Kelo, and the House and Senate introduced a slew of bills, to curb what so many perceived as the power of eminent domain run amok. More than a hundred bills were introduced in state legislatures to accomplish the same end, and two states passed moratoriums on economic development takings. Pundits spilled ink declaring that the Founding Fathers were spinning in their graves. Spittle flew as politicians grabbed the nearest mike, rushing to condemn Kelo as the unquestioned death knell of American property rights.

But how is it we still have someone like the soon-to-be-timberless Mr. Cook? Well, a year went by and the moratoriums were lifted. Congress never did pass any of the bills. Reform was left to the states. Some states, such as Oregon (hence Mr. Cook's bad luck), California, New York and New Jersey passed no meaningful reforms. The latter three are among the most active in these kinds of takings.

Some 28 states have passed substantive eminent domain reform since Kelo. Many enacted laws that prohibited private-to-private transfers for purposes of economic development. Sounds grand, right? But there's a loophole: blight.

Armed with a blight exception, private property in nearly all of the loophole states may still be condemned and ultimately used for economic development. Put another way, once a finding of blight is made, it's anchors away to build whatever the city or a private developer fancies. This leaves property owners vulnerable to unholy alliances between municipalities and developers, with condemnation processes that can lack transparency and due process.

In 1954, Supreme Court Justice William O. Douglas unleashed municipalities with the ruling in Berman v. Parker: The liberal court at its apex unanimously agreed with the notion that the elimination of blight is a "public use" under the takings clause of the Constitution. But what is blight? A half-century of experience has demonstrated only that it is in the eye of the beholder, or perhaps more to the point, in the eye of the power holder.

Blight standards are notoriously subjective; it just isn't that hard to find when one goes looking for it. And Congress conveniently passed statutes that rewarded municipalities with federal dough for slum clearance. Bingo! Cities found ever more blight to remove, often and not coincidentally in neighborhoods inhabited by blacks and Latinos.

Now, even in the backlash against Kelo, eliminating blight as a ground for eminent domain has proven to be close to impossible. The importance of this problem must not be underestimated if we are to understand why takings for economic development have been so hard to stop. Even when common sense would dictate that a project is economic in purpose, it can still be pursued under an urban renewal plan, i.e., to eliminate "blight." In our post-Kelo world, the vocabulary of economic development takings may have changed, but in many states the substance will not, especially as towns learn to teach to the test.

Only Utah and Florida passed statutes that eliminated the blight loophole -- stating plainly, no economic development takings, ever. The relief in Utah was short-lived. On March 20, 2007, Utah reversed course. Gov. Jon Huntsman signed a bill that restores blight to the table and allows the taking of private property for private development so long as 80% of one's neighbors concur -- a democratic scenario one homeowner called "mob rule."

Florida's law was passed under the white-hot intensity of the Riviera Beach controversy, a massive project that gained national media attention right after Kelo. This development was the brainchild of former Mayor Michael Brown, who wanted to "save" his mostly black city by ejecting some 1,000 homeowners from their modest seaside bungalows that sit on valuable land not far from Palm Beach. Then a great condo and yacht marina complex could be built on this formerly "blighted" land.

The post-Kelo media wave, with support from then Republican Gov. Jeb Bush, helped push Florida's reform bill through and oust the Riviera Beach council, thus killing the project. It remains to be seen how long condo and yacht club developers, big box retailers and the lawmakers they lobby will wait in the wings before obtaining changes in Florida's law.

Fellow legislators wonder too. Ohio conducted a year-long, post-Kelo dog-and-pony show of hearings by an eminent domain task force. It issued a lengthy report -- but the legislature has passed no laws. One member of the task force, unable to envision a world without eminent domain bulldozers, commented to me about Florida's law: "I don't know how they plan to renovate their barrios down there."

At the other end of the spectrum from Utah and Florida there is New Jersey, which has seemingly never met an eminent domain project it didn't like. Events in the Garden State are an object lesson in how post-Kelo politics can devolve. New Jersey Public Advocate Ronald Chen, appointed by Gov. John Corzine, has championed the cause of basic reforms such as giving homeowners notice before condemning their property, improving compensation, and putting the burden on powerful developers to justify a taking by showing that the property is blighted.

As a result, Mr. Chen has found himself mired in the down and dirty muck one finds at the intersection of real estate and money in New Jersey politics. State senators have publicly excoriated him in a legislative hearing for something as ordinary as daring to file amicus briefs in eminent domain cases.

Meanwhile, change has come at an excruciatingly slow pace. Reform bills have been introduced, but none has passed. Working class octogenarians in Long Branch continue their fight to keep their small oceanfront homes -- now valuable -- from the grasp of condo builders; trailer park residents in Lodi have to litigate to hold on in a town that wants to upgrade its residents. In Paulsboro, the taking of empty warehouses and vacant land was challenged; the New Jersey Supreme Court held it does not pass muster to say a property is blighted simply because it is "not fully productive."

The decision was hailed, though it did not invalidate the redevelopment law that spawns such takings. Still, it's a faint light in a very dark tunnel, and similar to a decision by Ohio's Supreme Court, Gamble v. Norwood, in which a working class neighborhood was slated for urban renewal, not because it was deteriorated, but because it was "deteriorating." The court struck the term down as unconstitutionally vague.

In the summer of 2005, even as impassioned speeches to protect private property rights were made to the media on state house steps around the country, resistance was brought to bear inside by interest groups. The result is a national landscape that continues to include barely fettered economic development takings under the blight umbrella.

With each Kelo anniversary, the politics will become more partisan as we forget our initial outrage. While the reforms can improve due process, such as those Mr. Chen recommends, many have aimed at narrowing -- but not eliminating -- blight exceptions. We need to take care. Developers will always look for eminent domain bargains, and towns for ways to raise revenue or rid themselves of undesirable populations. It is not hard to imagine a time when they will set their sights on the surest bets -- the poor and minorities -- resetting eminent domain on its most pernicious historical path.

Ms. Main is the author of the forthcoming "Bulldozed: 'Kelo,' Eminent Domain and the American Lust for Land" (Encounter Books).

[Crafty_Dog]

This Is Not Your Land Anymore
An outrageous story of eminent-domain abuse.

BY JONATHAN V. LAST
Tuesday, December 18, 2007 12:01 a.m. EST

The legal phrase "eminent domain" has become all too familiar to nonlawyers in recent years as the U.S. Supreme Court has gradually expanded the power of municipalities to condemn private property and seize it for "public" use--even if they just end up handing property over to another private party. The court's now infamous Kelo decision (2005) no doubt pleased the city fathers of New London, Conn., who had taken possession of some residential neighborhoods for the sake of private developers. But it outraged nearly everyone else, not least Susette Kelo, the plaintiff whose home was coveted.

Outrage, appropriately, is the sustained effect of Carla Main's "Bulldozed," the case study of another instance of eminent-domain abuse, this time in the working-class town of Freeport, Texas (pop. 13,500), on the Gulf coast. Six years ago, after decades of decline, Freeport decided to revitalize itself by building a private marina on the Old Brazos River, which runs through the center of town. City leaders hoped that the development would attract hotels, restaurants, art galleries and tourists. But to make it all happen, they needed the land of a local family business. "Bulldozed" tells the story of a fight over domain, eminent and otherwise.





Ms. Main begins with the members of the Gore family, whose shrimping business has operated in Freeport since the 1940s. They own 330 feet of riverfront land, where shrimp boats dock and unload, and a state-of-the-art processing plant nearby. The family's company, called Western Seafood, employs more than 50 people and pays Freeport nearly $20,000 in taxes every year. Not that such good citizenry was enough to shield the company from the hazards of municipal overreach.
In March 2002, a group of private investors, led by a man named H. Walker Royall, formed a company called Freeport Waterfront Properties. Six months later, consultants hired by the city released a redevelopment plan--and, amazingly, it recommended a private marina, just what Mr. Royall's investors had hoped for. The city did not open the marina project to competition; it just handed it over to Freeport Waterfront. Conveniently, Mr. Royall sat on the board of Sun Resorts, another company that the city selected, also without competition, this time to manage the marina once it was built.

The cozy arrangements didn't stop there. Freeport agreed to give the private investors $6 million in the form of a no-recourse loan. (The city's annual budget was $13 million.) It promised to cover their cost overruns with a loan of up to $400,000. It gave them a tax abatement. And it limited the investors' financial liability to $250,000 in cash, leaving the city on the hook for other cost overruns.

The only obstacle to this sweetheart deal was Western Seafood. It owned the land where Mr. Royall and his friends wanted to build. The city came up with a clever way around this problem. Claiming eminent domain, it proposed to take only part of the company's land--paying the Gores $260,000 in compensation. But the part the city officially wanted was riverfront land. Without it, Western Seafood wouldn't have access to its shrimpboats, and the "problem" of the rest of Western Seafood's land--expensive property, crowded with buildings and industrial equipment--would take care of itself. The city would get it virtually without paying for it.

The tale gets worse. Freeport was in a position to consider building a marina in the first place only because a "guillotine gate" in the river--insulating boats from hurricanes and storm surges--made Freeport a safe harbor. When the guillotine gate needed modernization several years ago, Ms. Main reports, the city didn't have the money for the $300,000 job. So the Gores gave the city a gift of $150,000. If they hadn't been so generous, the city never would have tried to take their land.





Ms. Main's legal background and reporting skills serve her well as she navigates the Gores' messy, twisting fight against city hall. Her tone is usually judicious, though not always. (Recounting one insincere proposal from the city to create a tiny buffer between Western Seafood and the marina, she exclaims: "Buffer, my ass!") From time to time, she steps away from Freeport to give a primer on eminent domain and the legal arguments surrounding the claims of municipalities on private land.
But "Bulldozed" is at heart a story about trouble in a small town, a sort of eminent-domain version of "In Cold Blood," although it lacks a satisfying conclusion. In 2003, the Gores and Freeport took one another to court and fought a long, rancorous battle. After a series of defeats, the family was seemingly victorious. Freeport abandoned its plan for a private marina--only to unveil a plan for a public marina that would also need much of the Gores' land. As "Bulldozed" closes, the two sides are heading back to the courthouse once more.

Mr. Last is a staff writer at The Weekly Standard. You can buy "Bulldozed" from the OpinionJournal bookstore.

WSJ

[Crafty_Dog]

“The denial of annual [pay] increases, [Chief Justice John] Roberts wrote, ‘has left federal trial judges—the backbone of our system of justice—earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located.’ The cost of rectifying this would be less than 0.004% of the federal budget. The cost of not doing so will be a decrease in the quality of an increasingly important judiciary—and a change in its perspective. Fifty years ago, about 65 percent of the federal judiciary came from the private sector—from the practicing bar—and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it... The enlargement of the judiciary’s role by the regulatory state requires compensation of the judiciary commensurate with its ever-expanding importance. That importance, although regrettable, is a fact, and so is this: You get the quality—and the perspective—you pay for.” —George Will

[Crafty_Dog]

Columbia University
Has No Right to My Land
By NICK SPRAYREGEN
September 3, 2008

In the Fifth Amendment to the U.S. Constitution, the government is permitted to take private property only for "public use."

This clause was once limited to true public projects such as the construction of highways, fire houses and public libraries. But over the last 50 years it has been bastardized by the powerful (in collusion with compliant politicians and the acquiescence of the courts) into a weapon used routinely to forcibly take other people's property for nonpublic uses. What is occurring in West Harlem today is a prime example of this abuse.

Columbia University, a private institution, officially announced its desire for a new campus five years ago. The university zeroed in on the Manhattanville area of Harlem -- between 125th and 134th Streets, and between Broadway and the Hudson River. Since that time, while wielding the sledgehammer of the possible use of eminent domain, Columbia has purchased roughly 80% of Manhattanville.

My family has owned for almost 30 years four commercial Manhattanville properties. We run a self-storage business, plus we lease to various large retailers such as a discount store and a supermarket. For over four years we have been fighting the state and Columbia in their joint attempts to condemn my properties for the school's expansion.

This week, the board of directors of the state agency threatening the condemnation -- the Empire State Development Corporation -- will hold two legally required public hearings, ostensibly to give the public a chance to be "heard." I believe that this is merely perfunctory.

Under New York state law, in order to condemn property the state first has to undertake a "neighborhood conditions study" and declare the area in question "blighted." Earlier this summer the state released its study, which concluded that Manhattanville is indeed "blighted." This gives the state the legal green light to condemn my four buildings and hand them over to the university.

The study's conclusion was unsurprising. Since the commencement of acquisitions in Manhattanville by Columbia, the school has made a solid effort to create the appearance of "blight." Once active buildings became vacant as Columbia either refused to renew leases, pressured small businesses to vacate, or made unreasonable demands that resulted in the businesses moving elsewhere. Columbia also let their holdings decay and left code violations unaddressed.

Only a few years ago, this area was undergoing a resurgence. Virtually all property was occupied, many by long-standing family operations such as my own. Now most of those businesses are gone -- forced out by the university. Still, Columbia has not been able to freeze all positive change in the neighborhood. Just in the past few years, three upscale restaurants have opened here. They seem to be thriving.

There is also a conflict of interest in the condemnation process. The firm the state hired to perform the "impartial" blight study -- the planning, engineering and environmental consultant Allee King Rosen & Fleming, Inc. (AKRF) -- had been retained by Columbia two years earlier to advocate for governmental approval of the university's expansion, including the possible use of eminent domain.

When I go to court in a few months to contest the condemnation, I will face an overwhelmingly unfair process particular to New York, and to eminent domain trials. I will not be permitted to question any of the state or Columbia's representatives, nor will I be allowed to have anyone take the witness stand on my behalf. My attorney will only be provided with 15 minutes to speak to the court on a matter that Columbia and the state have been working on for over four years.

Another problem is that in New York, the precise definition of what is blighted is nowhere to be found. It is virtually impossible to defend oneself from something that is not properly defined.

I am still denied access to documents with facts surrounding the Columbia expansion plan, asked for through Freedom of Information Law (FOIL) requests. I filed 12 different FOIL requests and have gone to court four times. The courts have now twice ruled that it was improper for the state to refuse to hand over all communication between it and AKRF.

Still, I look forward to my day in court. I am cautiously optimistic that it will expose as unconstitutional what Columbia and the state are attempting to do.

Mr. Sprayregen is the president of Tuck-It-Away, a West Harlem based self-storage company.

[Body-by-Guinness]

I understand lawnmowers have those stupid deadman bars on the handle because a couple boneheads used one to try to trim the hedges, and lost a couple fingers in the process. Rewarding this kind of damn-foolishness only begets more, and gives lawyers and excuse to pursue this kid of idiocy.

But at Least He Got the $10
Jacob Sullum | January 27, 2009, 2:45pm

Last week a jury in Brevard County, Florida, awarded $76.6 million in damages to a construction worker who was paralyzed from the neck down after he dove head first into a foot of water on a dare. Timothy Hoffman, 20 at the time of the injury in 2003, said his supervisor during a project at Sunrise Village Condominiums in Port St. John offered him $10 to do a "belly flop" off a dock into the Indian River Lagoon. He sued the general contractor in charge of the project, C&D Dock Works, arguing that it inadequately trained its supervisors and failed to warn him of the lagoon's shallowness. The company's owner, Charles Brunty, could not afford a lawyer and made an abortive attempt at representing himself, giving up after filing for Chapter 7 bankruptcy in May as a result of the case. It's not clear how much money, if any, Hoffman will actually collect. Brunty gave the Orlando Sentinel a sample of his defense:

"There was no negligence on my part," Brunty said. There was a rail at the edge of the water, he added, indicating a potential danger.

"Why he went into the water, I don't know," Brunty said. "There's got to be some common sense, too."

A local TV station, perhaps out of sympathy for Hoffman, doctored the truth about how he was injured, reporting that "he broke his neck after falling 50 feet from atop a seawall."

http://www.reason.com/blog/show/131290.html

[Crafty_Dog]

Supreme Court Steps Closer to Repeal of Evidence Ruling
By ADAM LIPTAK
Published: January 30, 2009
WASHINGTON — In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.


The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”

In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography.

This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

“This conduct,” Judge Stanley R. Chesler wrote a week after Herring was decided, “while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.”

Constitutional adjudication is not a science experiment, and it is often hard to say for sure what difference a change in personnel makes. In the case of the exclusionary rule, though, you can get pretty close.

================

Page 2 of 2)



On Jan. 9, 2006, just months after Chief Justice Roberts joined the court, the justices heard arguments in Hudson v. Michigan. The police in Detroit had violated the constitutional requirement that they knock and announce themselves before storming the home of Booker T. Hudson, and the question in the case was whether the drugs they found should be suppressed under the exclusionary rule


Justice O’Connor, in her last weeks on the court while the Senate considered Justice Alito’s nomination, was almost certainly the swing vote, and she showed her cards.

“Is there no policy protecting the homeowner a little bit and the sanctity of the home from this immediate entry?” she asked a government lawyer, her tone sharp and flinty.

David A. Moran, who argued the case for Mr. Hudson, was feeling good after the argument. “I was pretty confident that I’d won,” he said in a recent interview. “O’Connor had pretty clearly spoken on my side.”

Three months later, the court called for reargument, signaling a 4-to-4 deadlock after Justice O’Connor’s departure. Justice Alito was on the court now, and the tenor of the second argument was entirely different.

Now Justice Stephen G. Breyer, who seemed to have been at work on a majority opinion in favor of Mr. Hudson, saw a looming catastrophe. The court, Justice Breyer said, was about to “let a kind of computer virus loose in the Fourth Amendment.”

Justice Breyer had reason to be wary. When the 5-to-4 decision was announced in June, the court not only ruled that violations of the knock-and-announce rule do not require the suppression of evidence but also called into question the exclusionary rule itself.

In a law review article later that year, Mr. Moran went even further. “My 5-4 loss in Hudson v. Michigan,” he wrote, “signals the end of the Fourth Amendment as we know it.”

Justice Scalia, writing for the majority, said that much had changed since the Mapp decision in 1961. People whose rights were violated may now sue police officers, and police departments are more professional. In light of these factors, he wrote, “resort to the massive remedy of suppressing evidence of guilt is unjustified.”

Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.

Justice Kennedy signed the majority decision, adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”

Another important Warren Court decision on criminal procedure, Miranda v. Arizona, appears to remain secure. Miranda, as anyone with a television set knows, protected a suspect’s right to remain silent and the right to a lawyer by requiring a warning not found in the Constitution. The decision, like Mapp, was the subject of much criticism in the Reagan years.

But in a pragmatic 7-to-2 decision in 2000, the Rehnquist Court refused to revisit the issue. Miranda warnings, Chief Justice William H. Rehnquist wrote for the majority, had “become embedded in routine police practice” and had “become part of the national culture.” Justices Scalia and Thomas dissented.

Defenders of the exclusionary rule breathed a sigh of relief in November

“From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”

For now, said Pamela Karlan, a law professor at Stanford, “they don’t have five votes to disavow the exclusionary rule by name.”

At the same time, Professor Karlan said, “you are not going to see any dimension along which there is going to be an expansion of defendants’ rights in this court.”

[Crafty_Dog]

Justice Ginsburg was my Constitutional Law prof at Columbia.
==========================
http://news.yahoo.com/s/ap/20090205/ap_on_go_su_co/scotus_ginsburg;_ylt=AowRVyeYqrWNA2W32SNRwJfgtY54

Ginsburg is hospitalized with pancreatic cancer

 AP – In this Oct. 23, 2008 file photo, Supreme Court Justice Ruth Bader Ginsburg reads from a small book version …
 Slideshow: Supreme Court Justice Ruth Bader Ginsburg WASHINGTON – Supreme Court Justice Ruth Bader Ginsburg had surgery Thursday after being diagnosed with pancreatic cancer, the court said.

Ginsburg, 75, had the surgery at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon, Dr. Murray Brennan, according to a release issued by the court.

The court announcement said the cancer is apparently in the early stages.

In 1999, Ginsburg had surgery for colon cancer and had chemotherapy and radiation treatment. The only woman on the court, she has been a justice since 1993.

The pancreatic cancer was discovered during a routine, annual exam late last month at the National Institutes of Health in Bethesda, Md.  A CAT scan revealed a tumor measuring about 1 centimeter across the center of the pancreas, the court said.  Pancreatic cancer is one of the most deadly cancers: Nearly 38,000 cases a year are diagnosed and overall, fewer than 5 percent survive five years.  The reason: Fewer than one in 10 cases are diagnosed at an early stage — like Ginsburg's appears to be — before the cancer has begun spreading through the abdomen and beyond. That's because early pancreatic cancer produces few symptoms other than vague indigestion.  Even when caught early, surgery for pancreatic cancer is arduous. Doctors typically remove parts of the pancreas, stomach and intestines. Radiation and chemotherapy are common after surgery.

Ginsburg has recently told her former law clerks and others that she envisioned serving on the court into her 80s, although those comments were made before the latest diagnosis.

Ginsburg is one of only two female justices ever. The other is Sandra Day O'Connor, who retired in 2006.  In her previous bout with cancer, Ginsburg received treatment throughout the court's term and never missed a day on the bench.  The justices, in the midst of a winter break, hold their next private conference on Feb. 20 and return to the bench on Feb. 23.

The court's announcement offered few details about the surgery. Brennan is a renowned surgeon whose expertise is treatment of pancreatic cancers and tumors on other soft tissues, like the adrenal and thyroid glands. He was chair of Memorial Sloan-Kettering's surgery department from 1985 until June 2006.

[ccp]

I don't get it.  This guy never faced justice for essentially child abuse and the President of France is outraged he is finally being brought to justice after fleeing to safe havens for all these years. 

***Sarkozy wants ‘resolution’ to Polanski arrest
By Scheherazade Daneshkhu in Paris

Published: September 27 2009 13:22 | Last updated: September 27 2009 16:28

President Nicolas Sarkozy said he hoped for a “speedy resolution” to the arrest in Switzerland of Roman Polanski, the film director who has French nationality.

Speaking on behalf of the French president, Frederic Mitterand, culture minister, said on Sunday he was “amazed” to hear that Mr Polanski was detained by Swiss police on Saturday night, at the request of US authorities.

EDITOR’S CHOICE
Workplace suicides spark French outcry - Sep-18Christopher Caldwell: French suicides complicate corporate life - Sep-18Global Insight: Case poised to put French politics on trial - Sep-18France to count happiness in GDP - Sep-15French opposition sets out party reform plans - Aug-29French minister calls for ban on burka - Aug-14Mr Polanski, 76, was travelling to pick up an award at a Zurich film festival when he was arrested on a 1978 warrant. In 1977, he was arrested in Los Angeles for unlawful sex with an underage girl, which the director admitted. He fled before being sentenced and has been considered a fugitive from US justice ever since.

He lives in France, where he is protected by its limited extradition laws with the US and avoids visits to countries likely to extradite him.

Mr Mitterand said he was in close contact with Mr Sarkozy who was giving the matter “his utmost attention”.

Born in Paris of Polish parents of Jewish origin, Mr Polanski won Best Director Oscar in 2003 for The Pianist. His other celebrated films include Rosemary’s Baby and Chinatown.

The festival directors, who had been planning to give Mr Polanski a lifetime achievement award, said they had received the news of his arrest with “great consternation and shock,” adding: “We are unable to judge the legal background surrounding the arrest.”

The Franco-Polish director made legal history in the UK in 2005 by becoming the first libel claimant to sue in the English courts using a video-link. Fearing extradition, Mr Polanski did not travel to the UK and successfully won a libel case against Vanity Fair magazine in London’s High Court after giving evidence via video-link.

The House of Lords ruled that his right to bring the libel claim trumped the fact that he was a fugitive from justice.
Copyright The Financial Times Limited 2009. You may share using our article tools. Please don't cut articles from FT.com and redistribute by email or post to the web.****

[Crafty_Dog]

This comes recommended by someone whom I greatly respect.  I just signed up!

Become the 10 Supreme and decide pending cases along with the other 9 Supremes.

http://www.fantasyscotus.net/

[DougMacG]

14 Dead, not 13.  So many categories this could fall under... Leave it to Michelle Malkin to pick up what everyone else is ignoring, so far.

Was a crime committed (on the 14th victim)? Was a life ended?  Apart from the law and regarding the 14th, does this (in your opinion) violate Thou shalt not kill? 
------------------

"seldom mentioned is the most hidden victim — soldier Francheska Velez’s unborn baby. Velez was on maternity leave when she stopped at Ft. Hood, where she and the child she carried in her womb fell victim to Hasan’s bullet."
http://michellemalkin.com/2009/11/11/the-14th-murder-victim-of-the-fort-hood-jihadi-massacre/
The Obama Justice Department will never prosecute, but raising the question provides a teachable moment:

    In the interest of true justice, Hasan should be prosecuted under the Unborn Victims of Violence Act, also known as Laci and Conner’s law, named for the pregnant woman and unborn baby who were murdered in California by Scott Peterson, the baby’s father.

    It would seem that the law applies in this case for three reasons: the act of violence was committed on federal property…the shooting was allegedly done by a member of the military…and the violence could be classified as an act of terrorism.

    …The Obama Administration has a moral obligation to press for prosecution of Hasan under the Unborn Victims of Violence Act. If such a legal path is ignored, it will demonstrate to the world that the President is caving into a pro-abortion lobby who will not recognize the legal rights of any child in the womb—even a child whose mother desperately longs to give birth.

    My father had a favorite saying which he applied to criminal and terroristic acts: “Who weeps for the victim?” Let’s hope that, in this case, the President weeps for the victim who never had a chance to see a mother’s loving face.
---------
Here's the law:
The Unborn Victims of Violence Act of 2004 (Public Law 108-212) is a United States law which recognizes a "child in utero" as a legal victim, if he or she is injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."[2]

The law is codified in two sections of the United States Code: Title 18, Chapter 1 (Crimes), §1841 (18 USC 1841) and Title 10, Chapter 22 (Uniform Code of Military Justice) §919a (Article 119a).

The law applies only to certain offenses over which the United States government has jurisdiction, including certain crimes committed on Federal properties, against certain Federal officials and employees, and by members of the military. In addition, it covers certain crimes that are defined by statute as federal offenses wherever they occur, no matter who commits them, such as certain crimes of terrorism.

[Body-by-Guinness]

Police property seizures ensnare even the innocent

Money raised by Metro Detroit agencies increases 50% in five years

George Hunter and Doug Guthrie / The Detroit News

Local law enforcement agencies are raising millions of dollars by seizing private property suspected in crimes, but often without charges being filed -- and sometimes even when authorities admit no offense was committed.

The money raised by confiscating goods in Metro Detroit soared more than 50 percent to at least $20.62 million from 2003 to 2007, according to a Detroit News analysis of records from 58 law enforcement agencies. In some communities, amounts raised went from tens of thousands to hundreds of thousands -- and, in one case, into the millions.

"It's like legalized stealing," said Jacque Sutton, a 21-year-old college student from Mount Clemens whose 1989 Mustang was seized by Detroit police raiding a party. Charges against him and more than 100 others were dropped, but he still paid more than $1,000 to get the car back.
Advertisement

"According to the law, I did nothing wrong -- but they're allowed to take my property anyway. It doesn't make sense."

While courts have maintained the government's right to take property involved in crimes, police seizures -- also known as forfeitures -- are a growing source of friction in Michigan, especially as law enforcement agencies struggle to balance budgets.

"Police departments right now are looking for ways to generate revenue, and forfeiture is a way to offset the costs of doing business," said Sgt. Dave Schreiner, who runs Canton Township's forfeiture unit, which raised $343,699 in 2008. "You'll find that departments are doing more forfeitures than they used to because they've got to -- they're running out of money and they've got to find it somewhere."

The increase in property seizures merely is a byproduct of diligent law enforcement, some law enforcement officials say.

"We're trying to fight crime," said Police Chief Mike Pachla of Roseville, where the money raised from forfeitures jumped more than tenfold, from $33,890 to $393,014.
"We would be just as aggressive even if there wasn't any money involved."

Roseville had among the most dramatic increases over the five-year period examined by The News. But several other agencies also more than doubled their takes, including Novi, Trenton, Farmington Hills, Southfield, the Michigan State Police, Shelby Township, Livonia, Warren and Romulus.

The increase in money coming in leads to a higher percentage of the police budget being covered by seizures. In Roseville, the share of the police budget raised from forfeitures went from 0.3 percent to 4.2 percent. In Romulus, it jumped from 4.5 percent to 11.2 percent from 2003-2007, the most recent years for which comparable records were available. Some agencies said records weren't available.

Police and prosecutors profit because citizens must either pay to get their confiscated property back or lose their cars, homes and other seized assets to the arresting agencies, which auction them off.

The increased reliance on seized property to fund police operations amounts to a trade-off for law enforcement. The tough economy may be prompting law enforcement agencies to use an "entrepreneurial spirit," but that makes for bad public relations, said Tom Hendrickson, director of the Michigan Association of Chiefs of Police.

Courts support seizures

The friction over seizures is a result of two competing legacies in U.S. law. While the Fourth Amendment, adopted in 1791, protects the right of citizens to be free from unreasonable searches and seizures, the Supreme Court ruled in 1827 that a Spanish-owned ship could be seized after it fired on a U.S. vessel. Whether or not the crew was convicted, the brig was the principal offender, it ruled.

And 169 years later, the nation's high court reaffirmed the notion when it ruled that a Royal Oak woman couldn't challenge the seizure of the family sedan after her husband was caught having sex with a prostitute inside, even though she didn't know the car was being used for that purpose.

Just last month, the high court heard the case of six people from Chicago who sought prompt hearings on the seizure of their cars and money. When a federal attorney told the court the government needs time to determine who owns a car and to investigate that person's connection to the criminal activity, Justice Sonia Sotomayor said: "I'm sorry. You take the car and then you investigate?"

A ruling, expected to come on procedural grounds, is due by the end of the Supreme Court's term in June and isn't expected to change law on property forfeiture.

"Unfortunately, the Supreme Court so far has ruled that they're not unconstitutional," said Kary Moss, director of the Michigan American Civil Liberties Union.

Modern civil forfeiture laws originally were passed in the 1970s and 1980s to allow police to seize the means of committing crimes. For instance, if a drug dealer was using a boat to transport drugs, the law enabled officers to confiscate the vessel before the case went to trial.

But the laws expanded over the years to allow the seizure of property that had only a loose connection to the alleged crime, and police now are taking property for infractions that would not have resulted in forfeitures in the past, including minor drug possession, gambling, drag racing, drunken driving and even loitering near illegal activity.

While laws governing seizures by federal authorities have been reformed to make it more difficult for them to seize property, state legislatures, including Michigan's, have not followed suit.
The Wayne County Prosecutor's Office often makes people pay to get their seized property back without filing any charges -- and in some cases citizens such as Sutton must pay even though police and prosecutors admit they can't prove any law was broken. In his case, police raided a dance party they thought was a blind pig and issued tickets to more than 100 people, all of which were later dropped.

Prosecutor Kym Worthy declined comment, but issued a written statement explaining that she wants to get criminals off the street, and that the law allows her office to seize property without filing charges.

Canton's Sgt. Schreiner insisted forfeiture laws should be wielded responsibly.

"There's a right way and a wrong way to do forfeitures," he said. "First of all, you should always file charges; if you don't have a case against someone, you shouldn't seize their property.
"But even when there is a crime, the law should be used as it was intended. If we seize a computer that was used to commit identity fraud, that's a good thing. But if Joe Citizen complains that he was arrested for a small amount of drugs, and we took his refrigerator and silverware, then I think he has a valid complaint."

Agencies ramp up efforts

Many of the increases in forfeitures obtained by local police agencies aren't the result of money hunting, officials say, although they also admit their efforts to take property have increased.
When Romulus saw a 118 percent jump in forfeiture revenues from 2003-07, the increase was not the result of more criminal activity, Chief Michael St. Andre said.

"It's because our forfeiture efforts have ramped up in the past few years," he said.

Revenue was not a primary concern, he said, "but it is nice when we're able to purchase things we need from arrests.

"I don't have to go to the city and ask for things like bulletproof vests or computers."

In Trenton, forfeitures hit a high of $874,499 in 2006. Police Chief William Lilienthal said his department joined a federal drug task force in 2005 that focused on asset seizures, which partially accounts for the increase.

Novi saw the biggest revenue increase in forfeiture revenues, going from $12,278 in 2003 to $2.7 million in 2007. But police officials said that spike is largely attributed to a 2005 arrest of a nationwide drug cartel that netted millions of dollars over a three-year period.

Yet adding to the dissent over seizures is that police agencies are able and even required to return the proceeds from forfeitures into more law enforcement activities, which can make a seizure look like a money-grab even if it isn't.

That's risky business, said Hendrickson, who represents the state's chiefs of police.

"Police departments should never make revenue a prime concern," he said. "That undermines people's confidence in their police officers."

Under state law, police departments may use the funds raised from most seizures indiscriminately within their own departments, although drug forfeiture money must be put back into fighting drugs.

But even that rule is being relaxed because of the tough economy. Earlier this year, Romulus police were able to purchase 16 new Dodge Chargers from drug forfeiture funds, which usually isn't allowed.

"They allowed it this year because the economy is so bad, it's an emergency situation," St. Andre said. "We contacted the DEA and asked permission to use that money to purchase vehicles."
In Trenton, forfeiture revenues paid for a new firing range.

"Forfeitures are a way to help supplement your budgetary issues," Trenton Chief William Lilienthal said.

"You can't supplant your budget with them, but you can supplement it. If you need something, you can utilize those funds to purchase it."

ghunter@detnews.com The Detroit News' Bridget Baulch and Mike Wilkinson contributed.

http://www.detnews.com/article/20091112/METRO/911120388

[Crafty_Dog]

BBG:

You have raised a matter that I confess gets me quite hot.  I find this whole area of the law to be quite outrageous.

[G M]

I have no problem with the seizure of property post-conviction, but the "civil forfeiture" as currently practiced is indeed outrageous. I can't believe that the courts have upheld this practice.

[Rarick]

This comes recommended by someone whom I greatly respect.  I just signed up!

Become the 10 Supreme and decide pending cases along with the other 9 Supremes.

http://www.fantasyscotus.net/

Nope not playing it that way.  If there was a column for which way would you judge it, then it would be interesting to compare my choice with the justices.  I am not into the brain sweat of trying to predict other peoples actions.

[Rarick]

On Seizure of Property-  I remember when this was only in relation to DRUGS and ONLY Drug Crime.  The usual slide down the slippery slope you have with anything done in govt.  This little change was another camels nose under the tent, and that expanded into the camel walking into and out of my tent whenever it pleased under color of the law.

Immediate seizure for immediate safety, I understand.  This "if you want it back come down to the office and fill out the forms" stuff is just wrong, I should get whatever property- pocket knife, gun, tools, whatever back Immediately when the situation has abated, or the item has been "processed".
If the govt want to keep it for evidence and future reference, then I am owed compensation.  I am not a wealthy citizen who can go and replace my handgun, or vehicle the next day, heck sometimes I do not have enough cash/change to get a bus pass, and the police are not the king's men who should expect us to bow down and submit either.  That is the attitude they have, from my experience.

I avoid a lot of confrontations/ look the other way simply because THE LAW puts up too much of a barrier for me to surmount with my resources, and do the right thing.  If the legal system was truly about justice, that would not be an issue.

[G M]

If something is seized as evidence, it is retained until all legal avenues are exhausted.

best evidence rule

A rule of evidence that demands that the original of any document, photograph, or recording be used as evidence at trial, rather than a copy. A copy will be allowed into evidence only if the original is unavailable.

[Crafty_Dog]

I think we have a first!  GM siding against a law enforcement practice!

Anyway, I am in complete agreement.  Our forfeiture laws, and the SCOTUS's affirmation of them, are an outrage.

[G M]

Although not a law enforcement practice, I have condemned Kelo. Does that count? 

[Crafty_Dog]

No , , , because it is not a law enforcement practice 

[G M]

I will point out that we have not extensively covered law enforcement practices. Mostly it's been "OMG, the police have a camera! We are but minutes away from an orwellian dictatorship!" And then me trying to inject a dose of reality into the discussion.

[G M]

Kyllo v. United States

Facts of the Case:
A Department of the Interior agent, suspicious that Danny Kyllo was growing marijuana, used a thermal-imaging device to scan his triplex. The imaging was to be used to determine if the amount of heat emanating from the home was consistent with the high-intensity lamps typically used for indoor marijuana growth. Subsequently, the imaging revealed that relatively hot areas existed, compared to the rest of the home. Based on informants, utility bills, and the thermal imaging, a federal magistrate judge issued a warrant to search Kyllo's home. The search unveiled growing marijuana. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. Ultimately affirming, the Court of Appeals held that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous 'hot spots' on the roof and exterior wall."

Question:
Does the use of a thermal-imaging device to detect relative amounts of heat emanating from a private home constitute an unconstitutional search in violation of the Fourth Amendment?

Conclusion:
Yes. In a 5-4 opinion delivered by Justice Antonin Scalia, the Court held that "[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." In dissent, Justice John Paul Stevens argued that the "observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of [Kyllo's] home but did not invade any constitutionally protected interest in privacy," and were, thus, "information in the public domain."

Decisions

Decision: 5 votes for Kyllo, 4 vote(s) against
Legal provision: Amendment 4: Fourth Amendment

[Crafty_Dog]

Do you think the court decided correctly in Kyllo?

As for your mockery of "Oh my god, the police have a camera!"-- yes you bring lucid rejoinders, but IMHO we also need to address the profound implications of CAMERAS EVERYWHERE, RECORDING MOST EVERYTHING.

[Body-by-Guinness]

Mostly it's been "OMG, the police have a camera! We are but minutes away from an orwellian dictatorship!" And then me trying to inject a dose of reality into the discussion.

I'd take issue with this caricature if I didn't know it would lead us into another circuitous conversation with each of us staking out turf at either extreme. . . .

[G M]

Do you think the court decided correctly in Kyllo?

As for your mockery of "Oh my god, the police have a camera!"-- yes you bring lucid rejoinders, but IMHO we also need to address the profound implications of CAMERAS EVERYWHERE, RECORDING MOST EVERYTHING.

Yes, the court was correct, although I'd actually draw a different bright line rather than "not currently in the general public's use". Rather, I'd use a standard that the 4th applies equally to a police officer physically intruding into a place where there is a reasonable expectation of privacy, or by any technological means, breaching that privacy. A search is a search, no matter if it's "actual" vs. "virtual".

[G M]

As far as cameras everywhere, in the US the vast majority of the cameras are privately owned and thus not subject to the 4th amendment. Cameras in public spaces are no different than having a police officer view what is open to anyone in that public place.

[Crafty_Dog]

Is there or is there not a slippery slope that ends with us like the UK, being surveilled by the state wherever we go?

[G M]

I think we should look at the topic from a cost/benefit analysis. Outside of certain specific environments, I'm thinking the money would be better spent on police officers.

[Rarick]

Cost Benefit does not apply to people, it has already been determined that lives are not bought and sold.  I do not trust human beings to get it right with any kind of predictability.  The old Lady in Florida and the Kids in New England are simply too much used of SWAT levels of force.  Regular beat cops screwed up recently in Henderson where someone appears to have ended up dead over a parking ticket and a language barrier.  (Henderson cops in nNevada have had a "rep." for years, they really stepped in it this time)

The camera surveillance is to invasive, yes there is no expectation of privacy, but to be on camera just because you are in public?  No that is not an answer either.  Cameras at ATMs and Banks and places where there is an "expectation of monitoring' is fine, but generic authorization for general surveillance, nope I do not agree with that.

[Crafty_Dog]

As far as cost benefit analysis goes GM how does one value the cost to freedom of continuously being under scrutiny?  Or is the cost of which you speak merely that of the technology itself-- which in that the cost of a given level of technology tends to decline rapidly over time, tends to mean no protection at all.

You're a bright guy and you do a good job of building seamless webs of logic, but on this one there is something here that cannot be evaded or avoided.

[G M]

I'm unaware of anywhere in the US where one is constantly under scrutiny, especially government scrutiny. I'm curious what sort of legislation you'd suggest to restrict the use of cameras. Does the local stop-n-rob or Walmart get to keep their cameras? Howabout the security cameras at schools? Do Private Investigators working insurance fraud cases get to use cameras? Does a patrol car keep it's cameras?

[Rarick]

You just used the L word again! I can hear all the good little bureaucrats jumping up and down with glee! Another reason to raise taxes, become more overbearing with the use of force to tell more people how to run their life!

The property owner puts up whatever cameras he sees fit, it is his land.  The cops like those cameras, it helps them to remember to toe the line (a good thing) and also serves to document various aspects of their job- fine.  I know I am being surveyed, the cop is in my business. 

It is all the other stuff.  A cop cruising around with a license plate scanner "looking for business" is definitely going to be one of the ones I am going to dislike.  Most of that equipment is more for revenue collection than actual crime catching anyway.  The speeding cams, the stop sign cams.  The speed traps, the attitude that everyone is a crook.  The stopping of random people behaving "suspiciously" and checking pockets, they behave suspiciously because 2 funny dressed goons from the govt are here using force against innocent citizens.  Cops are walking with their hand on their gun way to often, that is almost a direct threat of anyone within sight.  Unethical when police are the disturbance of the peace even though they are the LAW.

I do not need anyone to watch over me, I would gladly embrace the privilege of a free man to starve to death if he cannot find a way to eat. It solves a whole bunch of problems rather nicely.  I never want to be a burden thru taxes that are taken by force from another person for welfare.  Taxes are required by LAW, I am stealing indirectly thru a proxy.  That is still as unethical as stealing a pie of the neighbors windowsill.  I do not need someone to protect me, any one who attacks me is assuming the risk of losing the fight. I do not need anyone to tell me who initiated the attack first.  All a cop should do is verify "fair fight", and tell the kin where to pick up the looser (hospital, or morgue).  The crowd will know who the criminal is and point that out if I fail to protect my right to life.  It is unethical to remove a persons ability to defend himself, by requiring me to run away and call a cop, that is exactly what is being done, because there is often no option to run (bullets are pretty fast, knives/rocks can be thrown, etc.).

Yeah it is the LAW but an unethical law is worse than no law at all, and that is why laws are observed more in the breaking than the keeping.

[Body-by-Guinness]

I'm feeling kinda silly these days. I'm something of a geek and a big time early adopter so I've glommed on to a Google Voice account as well as Google Wave, and have all the above integrated with various others stuff. I'll be out in bum fornication Kentucky next week but will have about six integrated ways to keep in touch with work including by video if need be.

I mention all this because of a paranoid fantasy: what if Google was a wholly owned subsidiary of some spook agency? Someone leaves a voicemail on my Google Voice account and it gets transcribed into a text email that finds me wherever I am. If they can transcribe a voicemail that quickly they could certainly do the same to any conversation I route through them. They have my web history, and as I start getting into Wave they'll have those collaborations too. Expect they have some of my shopping and doubtless other stuff; link it all together and a pretty complete picture of me emerges.

Well Google doesn't have to be wholly owned as there is the Patriot Act and FISA amendment that allow the feds to co-opt just about any communications resource to their end. NSA is building a new storage facility in Utah rumored to have yottabytes (1 yottabyte=1,000,000,000,000,000GB) of drive space where all sorts of electronic utterances could be stored and collated. The thought of my accreted internet wanderings and warblings being stored somewhere and then used for who knows what end down the line give me the willies. Plenty of times and places where my anti-federal, anti-authority, well-armed, somewhat trained perspectives and predilections would have lead to a gulag or worse.

I say all this as a reaction to some of the discussion occurring currently and as preface to this CATO piece. Said piece has a lot of links to Electronic Frontier, Wired, and other sources that are will worth exploring. I fret for a country that has yottabytes of data about their citizens stored and I fear the day looms when a politician will put said data to a mass, malign use.

CATO piece follows:

A Handy PATRIOT Act Cheat Sheet

Posted by Julian Sanchez

While there are a slew of USA PATRIOT Act reform bills buzzing about Capitol Hill, the focus in Congress is now on two chief contenders, reported out by the House and Senate judiciary committees respectively. The very very short version is that the Senate version renews expiring PATRIOT powers with very few modifications, and that the House version includes an array of moderately more robust civil liberties safeguards. As Kevin Bankston of the Electronic Frontier Foundation has argued cogently, these differences are really far less important than the need to reform the FISA Amendments Act, which vastly expanded the surveillance powers of the National Security Agency, in effect permitting the Bush administration’s program of warrantless wiretapping to proceed with some cosmetic trappings of oversight. Still, the House bill does go some ways toward restoring the quaint notion that government should pry in to the private records of its citizens only when some evidence exists to provide grounds for individualized suspicion.

The Obama administration, alas, has decided to back the Senate’s bill, though the Justice Department also expressed “concerns” about the handful of actually-substantive checks on government spying power, and made clear that it intends to continue “working with the Committee” to gut those before the bill reaches the floor. For those with a taste for the gory details, Wired points to CDT’s handy dandy cheat sheet comparing the main provisions of the two bills.

http://www.cato-at-liberty.org/2009/11/16/a-handy-patriot-act-cheat-sheet/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29

[G M]

I'm feeling kinda silly these days. I'm something of a geek and a big time early adopter so I've glommed on to a Google Voice account as well as Google Wave, and have all the above integrated with various others stuff. I'll be out in bum fornication Kentucky next week but will have about six integrated ways to keep in touch with work including by video if need be.

I mention all this because of a paranoid fantasy:

**I'm glad you have the insight to recognize this is a paranoid fantasy.**


what if Google was a wholly owned subsidiary of some spook agency? Someone leaves a voicemail on my Google Voice account and it gets transcribed into a text email that finds me wherever I am. If they can transcribe a voicemail that quickly they could certainly do the same to any conversation I route through them. They have my web history, and as I start getting into Wave they'll have those collaborations too. Expect they have some of my shopping and doubtless other stuff; link it all together and a pretty complete picture of me emerges.

**And aformentioned spook agency would care why?**

Well Google doesn't have to be wholly owned as there is the Patriot Act and FISA amendment that allow the feds to co-opt just about any communications resource to their end. NSA is building a new storage facility in Utah rumored to have yottabytes (1 yottabyte=1,000,000,000,000,000GB) of drive space where all sorts of electronic utterances could be stored and collated. The thought of my accreted internet wanderings and warblings being stored somewhere and then used for who knows what end down the line give me the willies. Plenty of times and places where my anti-federal, anti-authority, well-armed, somewhat trained perspectives and predilections would have lead to a gulag or worse.

**Yeah, they'll get to you as soon as they roll up the muslim army majors who just happen to be dialoging with AQ affilitated imams about jihad.**

I say all this as a reaction to some of the discussion occurring currently and as preface to this CATO piece. Said piece has a lot of links to Electronic Frontier, Wired, and other sources that are will worth exploring. I fret for a country that has yottabytes of data about their citizens stored and I fear the day looms when a politician will put said data to a mass, malign use.

**Please cite the source where the yottabytes will be used to document our collective warblings.**

CATO piece follows

A Handy PATRIOT Act Cheat Sheet

Posted by Julian Sanchez

While there are a slew of USA PATRIOT Act reform bills buzzing about Capitol Hill, the focus in Congress is now on two chief contenders, reported out by the House and Senate judiciary committees respectively. The very very short version is that the Senate version renews expiring PATRIOT powers with very few modifications, and that the House version includes an array of moderately more robust civil liberties safeguards. As Kevin Bankston of the Electronic Frontier Foundation has argued cogently, these differences are really far less important than the need to reform the FISA Amendments Act, which vastly expanded the surveillance powers of the National Security Agency, in effect permitting the Bush administration’s program of warrantless wiretapping to proceed with some cosmetic trappings of oversight. Still, the House bill does go some ways toward restoring the quaint notion that government should pry in to the private records of its citizens only when some evidence exists to provide grounds for individualized suspicion.

The Obama administration, alas, has decided to back the Senate’s bill, though the Justice Department also expressed “concerns” about the handful of actually-substantive checks on government spying power, and made clear that it intends to continue “working with the Committee” to gut those before the bill reaches the floor. For those with a taste for the gory details, Wired points to CDT’s handy dandy cheat sheet comparing the main provisions of the two bills.

http://www.cato-at-liberty.org/2009/11/16/a-handy-patriot-act-cheat-sheet/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29

[G M]

Cost Benefit does not apply to people, it has already been determined that lives are not bought and sold.  

**I was discussing the use of cameras vs. hiring more police officers as a budgetary matter, although I will point out that lives saved or lost do figure into the equasion.**

I do not trust human beings to get it right with any kind of predictability.  The old Lady in Florida and the Kids in New England are simply too much used of SWAT levels of force.  

**Ohhhkayyyyyy. What old lady in Florida? What kids in New England? What does "are simply too much used of SWAT levels of force." mean?**

Regular beat cops screwed up recently in Henderson where someone appears to have ended up dead over a parking ticket and a language barrier.  (Henderson cops in nNevada have had a "rep." for years, they really stepped in it this time)

** And you know the Henderson cops screwed up how, exactly? You were there? What is the basis for you to judge the use of force by a law enforcement officer. What's your training and experience on the topic?**

The camera surveillance is to invasive, yes there is no expectation of privacy, but to be on camera just because you are in public?  No that is not an answer either.  Cameras at ATMs and Banks and places where there is an "expectation of monitoring' is fine, but generic authorization for general surveillance, nope I do not agree with that.

**And your policy solution is what?**

[G M]

You just used the L word again! I can hear all the good little bureaucrats jumping up and down with glee! Another reason to raise taxes, become more overbearing with the use of force to tell more people how to run their life!

**And instead of the rule of law, you'd prefer what?**

The property owner puts up whatever cameras he sees fit, it is his land.  The cops like those cameras, it helps them to remember to toe the line (a good thing) and also serves to document various aspects of their job- fine.  I know I am being surveyed, the cop is in my business. 

It is all the other stuff.  A cop cruising around with a license plate scanner "looking for business" is definitely going to be one of the ones I am going to dislike. 

**Actually, doing traffic is one of the best ways to catch fugitive felons and roll up crimes before they happen. The career criminal stopped for a minor traffic violation that ends up getting arrested isn't free to victimize you the next day.**


Most of that equipment is more for revenue collection than actual crime catching anyway. 

**Wrong, as pointed out above.**

 The speeding cams, the stop sign cams.  The speed traps, the attitude that everyone is a crook.

**The stop sign cameras save lives. Speed enforcement saves lives. Like it or not, those are the laws created by state legislatures and signed by governors and upheled by the courts. Law enforcement just enforces those laws.**

  The stopping of random people behaving "suspiciously" and checking pockets, they behave suspiciously because 2 funny dressed goons from the govt are here using force against innocent citizens. 

**First read up on a Terry Stop. Facts are good. Having an informed opinion is a good thing, you'll find.  My kingdom for a libertarian that can debate from facts rather than emotion.**

Cops are walking with their hand on their gun way to often, that is almost a direct threat of anyone within sight. **Uh huh. What's you training and experience in the use of defensive firearms. Are you a criminal? What do you frighten so easily?**  Unethical when police are the disturbance of the peace even though they are the LAW. ** Really? Please cite the statute you are alleging was/is being violated?**

I do not need anyone to watch over me,

**Really? for such an independent tough guy, you seem to get scared awful easy.**

 I would gladly embrace the privilege of a free man to starve to death if he cannot find a way to eat.

**Well, based on your prior post where you state that you can't afford a bus pass, it's seems you are well on your way there.**


 It solves a whole bunch of problems rather nicely.  I never want to be a burden thru taxes that are taken by force from another person for welfare.  Taxes are required by LAW, I am stealing indirectly thru a proxy.  That is still as unethical as stealing a pie of the neighbors windowsill.  I do not need someone to protect me, any one who attacks me is assuming the risk of losing the fight. I do not need anyone to tell me who initiated the attack first.  All a cop should do is verify "fair fight", and tell the kin where to pick up the looser (hospital, or morgue).  The crowd will know who the criminal is and point that out if I fail to protect my right to life.  It is unethical to remove a persons ability to defend himself, by requiring me to run away and call a cop, that is exactly what is being done, because there is often no option to run (bullets are pretty fast, knives/rocks can be thrown, etc.).

Yeah it is the LAW but an unethical law is worse than no law at all, and that is why laws are observed more in the breaking than the keeping.

**Rather than be angry at law enforcement, you should focus that rage on whomever was supposed to educate you. Print out a copy of your posts and take them to an attorney so they can file a tort claim on your behalf. **