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Police Should Have to Record Confessions

One guard against false confessions and convictions based on them is to record the full interrogations of those facing charges for serious crimes. That's what the California Commission on the Fair Administration of Justice is recommending that all police agencies be mandated to do. And that's what SB 171, sponsored by Sen. Elaine Alquist, D-San Jose, would require.

Having been a practiciing criminal defense lawyer for the last sixteen years, I have come to see how important it is that the police either audiotape or videotape statements that they obtain from a suspect. Much needless litigation occurs because a criminal defendant claims that he was never given Miranda warngings, but the police say he was. If the statement had been recorded in its entirety, there would seldom be a dispute over this issue.

I have had other cases where a police officer will state in his report that the suspect was given Miranda warnings, but when I reviewed the taped statement, it turned out that they were given incorrectly. In still another case, the detective stated in his report that my client gave up his Miranda rights and then confessed. But when I reviewed the videotape, my client began the interrogation by stating that he wanted a lawyer present to defend him. That request was ignored. Fortunately, that was all videotaped. Had it not been, it would have been my client's word against the detective's word. And in those situations, both judges and juries almost always believe the police and not the client.

In short, the criminal justice system would be greatly enhanced if the law required that all interrogations be tape recorded.

The Insanity Defense Goes Back on Trial

http://www.nytimes.com/2006/07/30/opinion/30hoffman.html

By MORRIS B. HOFFMAN and STEPHEN J. MORSE

Published: July 30, 2006

In June, the Supreme Court upheld a narrow Arizona test for legal insanity, which asked simply whether mental disorder prevented the defendant from knowing right from wrong. Last week, a Texas jury used a similarly narrow test to decide that Andrea Yates was legally insane when she drowned her five children in a bathtub, allegedly to save them from being tormented forever in hell.

Many scientists and legal scholars have complained that tests like these, used by the law to determine criminal responsibility, are unscientific. Given recent advances in our understanding of human behavior and of the brain, these critics argue, the legal test for insanity is a quaint relic of a bygone era.

These criticisms misunderstand the nature of criminal responsibility, which is moral, not scientific. On the other hand, legislation that has eliminated or unduly constrained the insanity defense, often in response to unpopular verdicts of not guilty by reason of insanity, is likewise off the mark. Between these two attacks, the concept of the morally responsible individual seems to be disappearing.

For centuries we have had a rough idea of the categories of people whom we should not hold criminally responsible. Early cases labeled them “the juvenile, possessed or insane.” The idea was that only people capable of understanding and abiding by the rules of the social contract may justly be declared criminally responsible for their breaches. Someone who genuinely believes he has heard God’s voice command him to kill another does not deserve blame and punishment, because he lacks the ability to reason about the moral quality of his action.

In an effort to hold most people accountable, and recognizing both the difficulty of establishing what was in the defendant’s mind at the time of the crime and the defendant’s incentive to lie about it, the law sought to establish strict standards for responsibility. As a result, legal insanity tests were drawn quite narrowly. They did not excuse most defendants whose intentional conduct broke the law, even if they might have suffered from mental disorders or other problems at the time of the crime.

The rise of various materialistic and deterministic explanations of human behavior, including psychiatry, psychology, sociology and, more recently, neuroscience, has posed a particular challenge to the criminal law’s relatively simple central assumption that with few exceptions we act intentionally and can be held responsible. These schools of thought attribute people’s actions not to their own intentions, but rather to powerful and predictable forces over which they have no control. People aren’t responsible for their crimes: it’s their poverty, their addictions or, ultimately, their neurons.

Lawyers and policymakers brought these academic explanations into the courts and legislatures, many of which responded to the pressure by expanding the doctrines of mitigation and excuse. Predictably, however, the public tired of many of the broader uses of the defense, especially after John Hinckley Jr. was found not guilty for reason of insanity for the attempted murder of President Ronald Reagan and others. Congress responded by adopting a narrow insanity defense, and many states followed suit. Four states have abolished the insanity defense entirely.

Once we agree that there may be some small percentage of people whose moral cognition is seriously disordered, how can the law identify those people in a way that will not allow the materialism of science to expand the definitions of excusing conditions to include all criminals? That is, if paranoid schizophrenia can provide part of the basis to excuse some criminal acts, why not bipolar disorder, or being angry, or having a bad day, or just being a jerk? After all, a large number of factors over which we have no rational control cause each of us to be the way we are.

The short answer is that we should recognize that the criteria for responsibility — intentionality and moral capacity — are social and legal concepts, not scientific, medical or psychiatric ones. Neither behavioral science nor neuroscience has demonstrated that we are automatons who lack the capacity for rational moral evaluation, even though we sometimes don’t use it. Some people suffer from mental disorder and some do not; some people form intentions and some do not. Most people are responsible, but some are not.

Punishing the deserving wrongdoers among us — those who intentionally violate the criminal law and are cognitively unimpaired — takes people seriously as moral agents and lies at the heart of what being civilized is all about. But being civilized also means not punishing those whom we deem morally impaired by mental disorder. Convicting and punishing a defendant who genuinely believed that God commanded him to kill is not unscientific, it is immoral and unjust.

We should be skeptical about claims of non-responsibility. But, if insanity-defense tests are interpreted sensibly to excuse people who genuinely lacked the ability to reason morally at the time of the crime, and expert testimony is treated with appropriate caution, the criminal justice system can reasonably decide whom to blame and punish.

Wrong insanity verdicts are possible, of course, but wrong verdicts are always possible. We should not respond by abandoning a defense that justice requires. A sensible test for legal insanity, fairly applied, can help prevent the concept of the responsible person from disappearing, either because the law naïvely accepts a cacophony of untestable excuses, or because cynical legislators overreact by permitting the conviction and punishment of blameless defendants.

Morris B. Hoffman is a state trial judge in Denver and a fellow at the Gruter Institute for Law and Behavioral Research. Stephen J. Morse is a professor of law and psychiatry at the University of Pennsylvania.

Surveillance Bill Meets Resistance in Senate

http://www.nacdl.org/public.nsf/mediasources/20060721a?OpenDocument

July 21, 2006
Washington Post
By Dan Eggen

A Senate surveillance bill personally negotiated by President Bush and Vice President Cheney ran into immediate trouble this week, as Democrats and other critics attacked the proposal while key GOP leaders in the House endorsed a different bill on the same topic.
The Senate legislation, drafted during negotiations between the White House and Sen. Arlen Specter (R-Pa.), would allow the administration to submit the National Security Agency's warrantless surveillance program to a secret intelligence court for review of its legality.

The proposal was billed as a rare and noteworthy compromise by the administration when unveiled last week. But the legislation quickly came under attack from Democrats and many national security experts, who said it would actually give the government greater powers to spy on Americans without court oversight.

A competing bill introduced by Rep. Heather A. Wilson (R-N.M.) was endorsed this week by two key House GOP leaders: Peter Hoekstra (Mich.), the intelligence committee chairman, and F. James Sensenbrenner Jr. (Wis.), head of the Judiciary Committee.

Specter, chairman of the Senate Judiciary Committee, canceled a markup session for his proposal that had been scheduled for yesterday. He announced instead plans instead for a full committee hearing Wednesday on the Foreign Intelligence Surveillance Act (FISA), the 1978 statute at the center of the debate.

The developments add to the uncertainty surrounding the eavesdropping program, which allows the NSA to intercept telephone calls and e-mails between the United States and locations overseas without court approval if one of the parties is suspected of links to terrorism.

The program -- secretly ordered by Bush after the Sept. 11, 2001, attacks but not revealed publicly until media reports in December -- has been the focus of fierce congressional debate. The Justice Department has spent much of its time fending off a flurry of legal challenges to the program in the courts, including a class-action lawsuit that was allowed to proceed yesterday by a federal judge in California.

Specter's proposal would, among other things, allow the transfer of all pending lawsuits to a secret FISA appeals court that could throw the cases out for "any reason." The bill would also allow -- but not require -- the administration to seek legal approval for the NSA program from another secret court that administers FISA.

The legislation also would lengthen the amount of time the government could spy on alleged terrorism suspects before receiving warrants, and would explicitly affirm the president's "constitutional authority" to conduct spying programs on his own.

Specter defended the proposal during a committee hearing on Tuesday, calling the agreement with Bush "a major breakthrough" that included necessary but acceptable compromises. He also argued that the language acknowledging Bush's legal authority has no real impact but was insisted on by White House negotiators.

"I do believe that it would be a significant precedent if we work this out and the president fulfills a commitment to refer to FISA," Specter said.

But critics say the proposal would effectively gut the FISA law and give the government too much leeway in clandestine surveillance. Opponents also say the bill would allow the FISA court to approve surveillance programs as a whole, rather than reviewing warrants for specific cases as it does now.

Other GOP proposals -- including bills proposed by Wilson and Sen. Mike DeWine (Ohio) -- are opposed by Democrats and civil liberties groups because they formally authorize the NSA program. But the scope of the Wilson bill, for example, is more limited than Specter's, and requires the executive branch to brief all members of the House and Senate intelligence committees.

Rep. Jane Harman (Calif.), ranking Democrat on the House intelligence committee, said she opposes all the GOP's proposals dealing with the NSA issue, calling them "solutions in search of a problem."

Judge Declines Bush's Request to Dismiss Privacy Suit Against AT&T

http://www.nacdl.org/public.nsf/mediasources/20060721b?OpenDocument

July 21, 2006
The New York Times
By John Markoff
SAN FRANCISCO, July 20 — A federal judge on Thursday rejected a motion by the Bush administration to dismiss a lawsuit against AT&T; over its cooperation with a government surveillance program, ruling that state secrets would not be at risk if the suit proceeded.

The case was filed in February by the Electronic Frontier Foundation, a civil liberties group, and alleged that AT&T; was collaborating with the National Security Agency in a surveillance program tracking the domestic and foreign communications of millions of Americans.

In rejecting the motion brought by the Justice Department, Vaughn R. Walker, chief judge of the Federal District Court for the Northern District of California, ruled that the government had already disclosed in broad terms whose communications it monitored, and that it was generally interested in calls between the United States and other countries.

“The government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content,” Judge Walker wrote.

“Because of the public disclosures by the government and AT&T;,’’ he added, “the court cannot conclude that merely maintaining this action creates a ‘reasonable danger’ of harming national security.”

The judge also rejected a separate motion to dismiss by AT&T;, which had argued that its relationship with the government made it immune from prosecution.

Judge Walker noted that his ruling should not be interpreted as an indication that his review of classified material presented by the government confirmed the accusations in the suit.

The government’s surveillance of telephone and Internet activity as part of its effort to track terrorists was disclosed in an article in The New York Times last December. In filing its lawsuit, the Electronic Frontier Foundation cited the testimony of a former AT&T; technician who disclosed technical documents about the installation of monitoring equipment at an AT&T; Internet switching center in San Francisco.

“This cases arises against the backdrop of the accountability of the government as it pursues its surveillance program,” said Marc Rotenberg, director of the Electronic Privacy Information Center, a civil liberties group based in Washington. “This is a significant victory for the principle of government accountability.”

Cindy Cohn, legal director for the Electronic Frontier Foundation, said the lawsuit was one of about 35 filed in different states in response to disclosures about the surveillance program, which the Bush administration has acknowledged. Senator Arlen Specter, Republican of Pennsylvania, has introduced legislation to consolidate those cases before a special court that had previously been established under the Foreign Intelligence Surveillance Act to deal with such issues.

Separately, at the request of AT&T;, Verizon and the government, a federal court in Chicago has begun to consider whether the cases should be consolidated or heard before separate federal courts.

An AT&T; spokesman, Walt Sharp, said the company was evaluating its options in light of the judge’s ruling. Mr. Sharp emphasized that the company was committed to protecting the privacy rights of its customers.

A Justice Department spokesman did not return telephone calls seeking comment.

In a separate lawsuit filed before a federal court in Detroit, the American Civil Liberties Union is suing the National Security Agency over the surveillance program.

Lawyers for the Electronic Frontier Foundation said they assumed the government would appeal the ruling, and said the next phase of the case would deal with whether the judge would permit the discovery phase of the trial to continue during the appeal process.

“Everyone expects the government to appeal, and that could take some time,” said Robert D. Fram, a partner at Heller Ehrman, the San Francisco firm representing the foundation in the case.

Innocence & the Death Penalty

http://www.nacdl.org/public.nsf/mediasources/20060717a?OpenDocument

July 16, 2006
Boston Globe
By David Feige

ALAN NEWTON LEFT PRISON last week after serving 22 years for a rape he didn't commit. Though eligible for parole for nearly a decade, he was repeatedly denied his freedom because he insisted on his innocence. Through repeated motions and letters from his prison cell, Newton relentlessly sought the DNA testing that eventually cleared him. But it took the New York City Police Department nearly a dozen years to locate that evidence-even though it was stored in the original evidence barrel the whole time-years Alan Newton spent in prisons like Attica and Sing Sing.

The Newton exoneration stands as a poignant rebuke to Justice Antonin Scalia's concurring opinion in the recent Supreme Court case of Kansas v. Marsh. In that death penalty decision, Scalia went far out of his way to attack what he termed the death penalty ``abolition lobby." In his analysis, Scalia joined a growing chorus of death penalty proponents who claim that our criminal justice system is nearly perfect in adjudicating guilt and innocence. Indeed, Scalia devoted entire pages of his opinion to excoriating several of his fellow justices for succumbing to what he believes are unfounded fears of fallibility created by the extensive attention garnered by the exonerated.

A principal flaw in Scalia's argument is that it is grounded in misleading statistics from a pro-death penalty piece published on the op-ed page of The New York Times in January. In the piece, which Scalia both cites and quotes at length, Joshua Marquis, the district attorney of Clatsop County, Ore., and an oft-quoted spokesperson for the prosecutorial lobby, asserts that the conviction of the innocent is essentially unheard of in our system of criminal justice.

Citing a 15-year study of exonerations by Samuel Gross, a law professor at the University of Michigan, Marquis argues as follows: ``Let's assume...that there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate 0.027 percent-or, to put it another way, a success rate of 99.973 percent."

Surely, Marquis suggests, when only a few out of every 10 thousand criminal defendants are innocent, and they have appeals and executive clemency to rely on, the criminal justice system is working as well as we could possibly hope. That argument, presaged in a law review article Marquis wrote in 2005, has driven the thinking and rhetoric of those who oppose criminal justice reform. With Justice Scalia's imprimatur, this flawed analysis is sure to take an even more prominent place in the criminal justice debate.

Unfortunately, Marquis has propounded a flawed analysis grounded in faulty, irresponsible arithmetic. Here's the problem: Comparing exonerations to felony convictions is like arguing that the Ford Pinto was safe because compared to the total number of automobiles sold in the United States, not many of them blew up. The proper way to determine the failure rate of the Pinto is not to use the total number of cars sold as the denominator, but rather the number of Pintos sold. Likewise, the denominator in Marquis's fraction shouldn't be the 15 million felony convictions over the past 15 years, but rather the number of similar cases in which innocence is actually disputed.

Marquis's most glaring error is his failure to acknowledge the fact that most felony arrests aren't contested. In fact, 95 percent of them are resolved by plea rather than trial. Thus in 19 out of every 20 felony cases, there is no contested issue of guilt and no real claim of error.

Only trials in which someone is convicted while maintaining his innocence should be considered in computing an error rate. Of Marquis's 15 million felony cases, 14.25 million were pleas. When the denominator in his fraction is changed from 15 million to 750,000, the error rate jumps from the arguably ignorable 3 in 10,000 to more like 50 in 10,000.

And Marquis's numbers become even more disturbing with further analysis. Because of the overwhelming demands involved in reinvestigating a crime with an eye toward exoneration, it is almost exclusively defendants sentenced for rapes and murders whose cases get scrutiny from groups like the Innocence Project, the nonprofit organization that helped free Alan Newton. The chances that a drug defendant is going to interest them are virtually nil. Thus the only people who have any meaningful access to the possibility of exoneration are a tiny subset of criminal defendants. Murders constitute only 0.8 percent of all felony cases, and rapes less than 2 percent. In other words, less than 450,000 of Marquis's 15 million felony convictions came in cases where the defendant has had a real shot at exoneration.

It is true that murder cases go to trial far more often than run-of-the-mill drug sales or check forgeries. In fact, some 44 percent of murder cases actually go to trial, with an average conviction rate of about 85 percent. But even taking this into account, of the 150,000 murder cases in Marquis's 15 million, only 66,000 homicide defendants maintained their innocence through a trial, of which just over 56,000 were convicted. Using similar trial and conviction rates for rapes yields somewhere south of 200,000 contested convictions in serious cases. In the final analysis, Marquis's error rate is off by orders of magnitude-his vision of a virtually error-proof system is simply unsupported by the numbers.

As Alan Newton's wasted years clearly demonstrate, imprisoning citizens for crimes they didn't commit is a tragic injustice whether it is freakishly improbable or terrifyingly commonplace. But as long as the opponents of change refuse to acknowledge the scope of the problem, much needed reforms will remain-like the exonerating evidence in Mr. Newton's case-unexamined. The tragedy here isn't merely questionable scholarship, it's the degree to which the prosecutorial lobby has latched on to what appears to be advocacy masquerading as statistical argument. That Justice Scalia has adopted this reasoning wholesale, seemingly without critical analysis, is merely further proof that when it comes to criminal justice reform, it is hardly the zealousness of the abolitionist movement we have to fear.

*David Feige was a public defender in the Bronx and is the author of ``Indefensible: One Lawyer's Journey into the Inferno of American Justice," published last month by Little, Brown & Co.

Wrongful Conviction Lawsuit Goes to Trial

http://www.nacdl.org/public.nsf/defenseupdates/illinois003

July 12, 2006
Washington Post
By Don Babwin

CHICAGO -- Members of a police unit that is facing allegations of torturing innocent men to obtain convictions went on trial Tuesday in a lawsuit brought by a man who spent 27 years in prison before he was released and later pardoned.

Michael Evans and a second man were convicted in 1977 in the murder of a 9-year-old girl. A Cook County judge released both men from prison in 2003 after DNA evidence did not match either one. Gov. Rod Blagojevich later pardoned the men.

Evans has sued the city of Chicago, and 12 current and former members of the Area 2 violent crime unit.

He testified Tuesday that he was so young, unsophisticated and confused when Chicago police interrogated him that at one point he thought a prosecutor was his lawyer. Asked why he cooperated with police and tried to answer all their questions, Evans said officers told him he would be released to his mother if he did.

Evans, who testified he has a learning disability and could barely read or write when he was interrogated, said he also went along with police out of fear.

"I was afraid if I didn't cooperate they were going to use any type of brutality," Evans said.

In opening statements earlier Tuesday, Evans' attorney said his client was the victim of overzealous police officers who were desperate to solve the case. Jon Loevy said that detectives fabricated and withheld evidence showing Evans was innocent. Loevy also accused the officers of offering a woman money to say what they wanted until she caved in and identified Evans as one of the two men she saw grab the girl.

The officers' attorney described Evans as the logical suspect in the slaying and said Evans even tried to intimidate the one witness who could put him at the scene of the crime.

Lawyer Andrew Hale said police did not withhold any evidence that would have exonerated Evans.

Hale dismissed Loevy's contention that police paid off the woman, saying the Cook County State's Attorney's office gave Judy Januczewski about $1,200 so she could move out of the neighborhood where she felt her life was in danger.

"There was nothing nefarious about that," he said.

Hale also pointed out that Evans was convicted twice in the slaying _ first by a judge and later by a jury _ and that there remains "ample evidence" Evans was involved with at least the girl's abduction.

Hale suggested that the DNA evidence that led to Evans' release from prison means only that he did not take part in a sex crime for which he was charged. It doesn't mean, he said, that Evans was not involved with abducting and killing the girl.

The trial, expected to last three to four weeks, is going on against a backdrop in which attorneys, exonerated suspects and City Hall are awaiting the release of a special prosecutor's report on the same police unit.

A Cook County judge appointed the prosecutor four years ago to look into allegations that homicide detectives in the 1970s and 1980s tortured 192 black men in interrogation rooms. The investigation has cost $5.5 million, and the special prosecutor says the report will likely be released by July 20.

All the defendants in Evans' lawsuit are white, and Evans is black.

Illinois' criminal justice system has been haunted by errors and wrongful convictions. The problems were so widespread that Gov. George Ryan, before leaving office early in 2003, commuted the sentences of everyone on the state's death row rather than risk executing innocent people.

Actually Innocent

http://www.nacdl.org/public.nsf/DefenseUpdates/NorthCarolina012

July 12, 2006
Winston-Salem Journal

No criminal justice system is perfect, but North Carolina's is on the verge of getting closer to true justice.
The General Assembly is within reach of creating the N.C. Innocence Inquiry Commission, a radically different form of process aimed at determining whether a person convicted of a crime actually committed that crime.

No other state in the country has such a commission. Something similar does exist, however, in Great Britain.

Many Americans think that the criminal-justice system is designed to ensure that the innocent are exonerated and the guilty convicted. Much as we all would like that to be so, it is not. The criminal law, with its presumption of innocence and its rules of evidence, is designed only to guarantee that a defendant gets a fair trial. In most cases, that should be enough to ensure that the defendant gets the correct verdict.

High-profile cases, such as Darryl Hunt's, demonstrate, however, that the system has flaws: Some people get convicted of crimes they did not commit.

This is where the appeals process often fails. To win a new trial, defense lawyers must demonstrate that their defendant did not get a fair review the first time around. What happens when a fair trial, however, did not deliver the correct verdict?

That's a question that tormented former N.C. Chief Justice I. Beverly Lake Jr.. Several years ago, Lake formed a study group that looked at state law and how it might be changed to allow for a post-conviction review.

The group devised a process that will be aimed at determining innocence or guilt in a very different framework from a court of law.

Lake has a record as a conservative politician and jurist. He's no bleeding-heart liberal by any stretch of the imagination. His backing of the concept was critical to its political passage through the General Assembly. The process by which convicts appeal through the commission will be arduous, but it opens an avenue for finding a truth that a jury may have missed.

The House and Senate have passed slightly different bills. The main difference is that the Senate would deny access to the commission to anyone who pleaded guilty to the crime for which he or she was convicted. The House version, in allowing those who pleaded guilty to appeal to the commission, is better. For any number of reasons, innocent people often plead guilty to crimes they did not commit, as national statistics show.

Legislators are hopeful that a compromise will pass before the fast-approaching adjournment. That will truly be good news.

The innocence commission can provide one more assurance that those in prison are truly guilty and, for that reason, it would do much to raise public confidence in the criminal-justice system.

Supreme Court Justice Kennedy Criticizes Federal Sentencing Guidelines

By TINA BAY, Staff Writer

http://www.metnews.com/articles/2006/conf071106.htm

U.S. Supreme Court Justice Anthony M. Kennedy yesterday criticized the federal Sentencing Guidelines and the lobbying efforts of correctional officers’ unions.

“The only thing worse than sentencing under the guidelines is sentencing without them,” he told judges and lawyers from across the Ninth Circuit yesterday. “I think the guidelines are far too severe,” he added, explaining that spending money on prisoners while failing to invest in efforts to inform at-risk groups about sentencing undermined the principle of deterrence.

“The fact that the prison guards’ association lobbies for higher penalties is sick,” he added emphatically.

Kennedy was the opening speaker at this year’s Ninth Circuit Judicial Conference in Huntington Beach, beginning the conference with a tribute to the late Chief Justice William Rehnquist and recently retired Justice Sandra Day O’ Connor.

Lay's death could set Skilling free

http://www.theglobeandmail.com/servlet/story/LAC.20060707.IBENRON07/TPStory/Business

Lay's death could set Skilling free
Lawyers likely to argue that entire case has effectively been voided
BARRIE MCKENNA

WASHINGTON -- Kenneth Lay's sudden death could prove to be an unexpected legal bequest to Jeffrey Skilling, his co-defendant in the landmark Enron Corp. fraud case.

Mr. Skilling's legal team will almost certainly invoke Mr. Lay's demise to try to reverse his own fraud and conspiracy conviction or demand a retrial, legal experts said yesterday.

That's because Mr. Lay's death Wednesday of an apparent heart attack effectively voids the entire case against the Enron founder, including the guilty verdict. Mr. Skilling, the former Enron chief executive officer who is appealing his own conviction, could now argue that much of the evidence against him stems from a case that no longer exists, argued lawyer Jacob Frenkel, a former federal prosecutor and white collar crime specialist.

"This is the first time this has happened in such a high profile case," Mr. Frenkel said. "Everybody is scrambling to see what the law says on this."

How it all plays out could set a legal precedent, he added.

Federal prosecutors may be stymied in their bid to seize Mr. Lay's assets. A recent appeals court ruling in the U.S. Fifth Circuit, where Mr. Skilling and Mr. Lay were tried, determined that when a defendant dies before he has exhausted all his appeals "everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted."

And that, Mr. Frenkel said, could arguably include any evidence used to convict Mr. Skilling.

Both men were free on bail, awaiting sentencing following their May 25 criminal conviction on fraud and conspiracy for their role in the spectacular 2001 collapse of Enron, a Houston-based energy trader.

Execution of innocent people

http://www.nacdl.org/public.nsf/mediasources/20060705a?OpenDocument

July 4, 2006
Washington Post

In his intemperate concurrence to a decision on capital punishment last week, Justice Antonin Scalia made a remarkable claim: "One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. . . . But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum." Justice Scalia sneered that those "ideologically driven to ferret out and proclaim a mistaken modern execution" have been unable to find "a single verifiable case to point to."

The justice's remark could not have been more ill-timed. It came in the midst of a remarkable series by the Chicago Tribune casting grave doubt on the guilt of a man executed in Texas in 1989, Carlos De Luna. The state executed Mr. De Luna for the stabbing death of a gas station clerk in 1983, and the condemned went to his death proclaiming his innocence. From the beginning, he named an acquaintance, Carlos Hernandez, as the killer. According to the Tribune, friends and family of Mr. Hernandez, a violent felon who died in prison in 1999, have now come forward to say he boasted of the crime and of letting Mr. De Luna take the fall for it. The Tribune's investigation calls into question the eyewitness evidence presented at trial. It shows how leads concerning Mr. Hernandez were not followed up.

Mr. De Luna's case is far from the only one of its kind. Only last year the Houston Chronicle detailed the case of Ruben Cantu, executed over a decade earlier for a murder and robbery back in 1984. The lone eyewitness, who was shot repeatedly during the crime but lived to identify Mr. Cantu, says he was pressured to do so. Mr. Cantu's co-defendant claims he committed the robbery with someone else. The Tribune had earlier revisited the case of Cameron Todd Willingham, executed in Texas more recently for setting fire to his home and thereby murdering his children. The science in the case was obsolete; it isn't even clear the fire was caused by arson. Then there's the case of Larry Griffin, executed in Missouri in 1995; prosecutors there are no longer convinced they got the right man and have reopened the matter.

Justice Scalia is correct that innocence has not been -- and probably can never be -- proven in these cases. There is no DNA to test, after all. What's more, as Justice Scalia notes, the Virginia case of Roger Keith Coleman -- whose posthumous DNA testing finally confirmed his long-disputed guilt -- shows that caution is appropriate in proclaiming any convict's innocence. Still, it seems highly unlikely that all of these convictions are solid. We hope never to see convincing evidence that an innocent person has been put to death. Avoiding that unthinkable likelihood is one reason capital punishment should end.

The death penalty is a failed experiment

http://www.nacdl.org/public.nsf/mediasources/20060626a?OpenDocument

June 26, 2006
Newsweek
By Anna Quindlen

You brush up against a lot of weird stuff in the course of child rearing, but one phenomenon that always had me scratching my head was the parents who hit their kids to teach them that hitting was a bad thing.

In their defense, they had a civic model for that kind of bizarre circular reasoning. Americans still live in one of the few countries that kill people to make clear what a terrible thing killing people is.

Hardly any other civilized place does this anymore. In the past three decades, the number of nations that have abolished the death penalty has risen from 16 to 86. Last year four countries accounted for nearly all executions worldwide: China, Iran, Saudi Arabia and the United States.

As my Irish grandmother used to say, you're known by the company you keep.

Last week the Supreme Court agreed to cogitate once more about capital punishment, a boomerang the justices find coming back at them time and time again. This new case is about the way lethal injection is administered. The argument is that even though one drug anesthetizes, a second paralyzes and a third stops the heart, the first is not sufficient to mitigate the pain and the second makes the inmate appear peaceful when he is in agony.

In other words, the case is about whether being put to death hurts. Passing judgment on this particular issue is the equivalent of diagramming an ungrammatical sentence.

Much of the debate about the death penalty since it reared its ugly head again in the '70s has been about whether it is disproportionately meted out to poor minorities, whether it should be permitted for juvenile offenders, whether various methods constitute cruel and unusual punishment. Most of these discussions are designed not to examine underlying deep moral issues but to allow Americans to continue to put people to death and still feel good about themselves.

That's become increasingly difficult. At the same time the court decided to revisit lethal injection, the justices agreed to a federal hearing in the case of a man who has spent 20 years on death row. He was convicted of raping and murdering a neighbor. The prosecution said his semen was found on the dead woman. New DNA tests show that the semen was instead that of her husband, who witnesses say had drunkenly confessed to the murder.

This is just one of a long line of such cases. Accusers recant, guilty parties confess, the lab makes a match that wasn't possible before. Since 1976, more than a thousand men and women have been executed in the United States. But during that same period more than 123 death-row inmates have been exonerated. That's a terrible statistical average. Put another way, more than 123 individuals truly guilty of savage crimes were walking free while someone else sat waiting on death row. And most, if not all, of those death-row inmates would have been wrongly executed if not for the lengthy appeals process death-penalty advocates like to decry.

Some years ago the execution of a woman named Karla Faye Tucker in Texas got a lot of attention. She had been found guilty of a particularly heinous double murder involving a pickax. But in jail she had a religious conversion so transformative that she referred to the place where she was held as "life row."

When Tucker was put to death, there was a mob scene outside the prison. Some of those who gathered there were opponents of the death penalty. Some wanted the execution to proceed. And some of the latter group danced and laughed and cheered and acted as though they were at the Super Bowl and their team had just scored a touchdown. They did everything but sell funnel cakes. If they had lived 300 years earlier, they would have happily paraded through cobbled streets with Karla Faye's head on a pike.

Most people who support capital punishment can't be counted as members of that sorry fringe mob. But this is one of those issues where there isn't really a middle ground. Just because the electric chair has been phased out doesn't mean civilization has prevailed; it only means that people didn't like how reports of a convicted man's head bursting into flame made them feel about what they were doing. In judicial terms, Justice Harry Blackmun concluded in 1994 that all it came down to was figuring out how to "tinker with the machinery of death."

And he was officially finished with it, writing: "Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed." The question isn't whether executions can be made painless: it's whether they're wrong. Everything else is just quibbling. And most of the quibbling simply boils down to trying to make the wrong seem right.

Stopping prosecutorial misconduct

http://www.nacdl.org/public.nsf/mediasources/20060628a?OpenDocument

June 28, 2006
Washington Post
By Carrie Johnson

A Justice Department policy that warns companies against paying legal bills for employees under investigation violated the workers' constitutional rights, a federal judge ruled, as he blasted the government for letting "its zeal get in the way of its judgment."
U.S. District Judge Lewis A. Kaplan criticized the federal government for holding "the proverbial gun" to the head of accounting firm KPMG LLP and advising the firm not to pay full fees to lawyers defending more than a dozen former partners on fraud charges.

The policy "interfered" with the executives' ability to fight criminal charges in a case that has been called the largest tax fraud in history, the judge wrote. He said the government "evidenced a desire to minimize the involvement of the defense attorneys" and added that "the government's proper concern is not with obtaining convictions."

Kaplan's harshly worded 83-page decision handed a potent symbolic victory to defense lawyers and business groups, who have for years complained that the government is overreaching in its attempt to weed out fraud after the Enron Corp. and WorldCom Inc. scandals.

An unusual coalition of trade organizations, including the U.S. Chamber of Commerce, the Securities Industry Association and the National Association of Criminal Defense Lawyers, banded together to fight the policy and submitted court briefs in the KPMG case.

"This decision is a big step in curbing abuse of the significant power that prosecutors enjoy," said Michael J. Madigan, a lawyer at Akin Gump LLP in the District who is defending John Lanning, one of the former KPMG executives. "Hopefully, the decision will be read carefully by U.S. attorneys around the country."

E. Lawrence Barcella Jr., a lawyer at Paul Hastings LLP in the District who represents former KPMG partner Larry DeLap, said he hoped the decision would signal an end to prosecutors using a "litmus test for cooperation that undermined employees' constitutional rights."

Michael J. Garcia, the U.S. Attorney for the Southern District of New York, said he was "disappointed by the ruling . . . which we respectfully believe is unsupported by the factual record and the applicable law."

The prosecutor added, in a prepared statement: "The actions of the Government were entirely consistent with appropriate Department of Justice policy, and we believe that the prosecutors acted ethically and properly throughout this case."

At issue is a three-year-old document known as the Thompson memo, named after former U.S. deputy attorney general Larry D. Thompson. The memo, which binds federal prosecutors across the nation, sets out factors for the government to consider when deciding whether to indict a corporation. Central to the analysis is how much companies have cooperated with prosecutors, including such things as handing over documents, making available witnesses, waiving attorney-client privilege and not aiding employees who are suspected of wrongdoing by paying severance or their legal bills.

Last month, prosecutors in California indicted the law firm Milberg Weiss LLP, in part based on the argument that the firm had failed to waive its legal privilege and help the government investigate payments to third parties in exchange for serving as plaintiffs in securities cases.

The government policy has long vexed defense lawyers, who claim it violates clients' rights to a fair trial and to be represented by attorneys, a position with which Kaplan agreed after holding an unusual three-day hearing where prosecutors testified under oath about their conversations with KPMG.

But the immediate practical implications of the decision are less clear.

The judge rejected outright a bid by defense lawyers to dismiss the criminal charges against their clients. He did, however, invite them to file a related lawsuit against KPMG for the fees within two weeks' time. He also urged KPMG to pay the fees of its own accord and encouraged prosecutors to lean on the accounting firm to do so.

George Ledwith, a spokesman for KPMG, said the firm was reviewing the decision. But in court papers lodged this year, KPMG said the former executives could not sue because they were subject to mandatory arbitration clauses in their partnership agreements. Kaplan said in a footnote to his opinion that if such arguments are raised in front of him, he will consider whether they stand in the face of "public policy."

KPMG of New York already has paid $456 million under an August deal with federal prosecutors that allowed the firm to survive and avoid criminal charges over its sale and marketing of abusive tax shelters in the 1990s. A similar indictment killed rival Arthur Andersen LLP four years ago.

Eager to cooperate with the government and avoid Andersen's fate, KPMG capped lawyer fees at $400,000 per employee and required employees to pick up any additional fees. The firm has advanced more than $10 million in fees for its current and former partners.

The criminal case against the former partners and other advisers, set for trial Sept., 11, could yet be postponed. Kaplan has called for a hearing next month on another defense motion, this one related to a dispute over the exchange of more than 6 million documents in the complex case. In one exhibit, defense lawyers offered a picture of documents nibbled by rats in a Queens, N.Y., warehouse.