Author Archive
Judge Dresses Down Federal Prosecutors
When we hear the phrase “witness intimidation” we’re likely to think of a gang member who is on trial or about to go on trial and, to evade justice, tries to have key witnesses change their story so the case will collapse. We hardly ever hear about cases where the prosecutors try to intimidate witnesses. But it happens. In an extraordinary proceeding this week in Santa Ana, CA, a federal judge reprimanded prosecutors for contemptible conduct toward witnesses. This story needs telling.
Here’s the gist of the case: William Ruehle was charged with criminal securities law violations. Mr. Ruehle’s defense was that his actions were always made in good faith — that he did not act with criminal intent. That’s an important aspect of the case. To take another example that most people can relate to, we all know the tax code is very complicated. People (including IRS employees) make honest mistakes about it all the time. Under the law, the government can only make a case for criminal tax evasion if it can persuade a jury that the person accused knew what the tax law required and proceeded to violate it anyway.
Crucial to Mr. Ruehle’s defense were three witnesses whom he wanted to call on his behalf at trial. They were familiar with his business dealings and would support his good faith defense. That was the plan anyway.
In preparation for trial, prosecutors embarked on an outrageous mission to “flip” or destroy the defense witnesses. One lady was fired from her job after prosecutors called her employer and spread innuendo. Prosecutors then pressured her into pleading guilty to some offense that allegedly took place seven years earlier – a very peculiar prosecution under the surrounding circumstances. And then her plea deal was contingent upon this lady changing her story to support the prosecution, not Mr. Ruehle. Taking all this in, the judge said he had ”absolutely no confidence that any portion of [this lady's] testimony was based upon her own independent recollection of events as opposed to what the government thought her recollection should be on those events.”
And that’s just one witness. It gets worse.
A Civil Liberties Roundup
Here are some interesting new items on the web:
- Cato Senior Fellow Nat Hentoff is interviewed by John W. Whitehead of the Rutherford Institute. Nat says “Obama has little, if any, principles except to aggrandize and make himself more and more important.” And “Obama is possibly the most dangerous and destructive president we have ever had.” Go here for the full interview.
- Cato adjunct scholar Harvey Silverglate is blogging this week over at the Volokh Conspiracy on his new book, Three Felonies a Day.
- Cato Adjunct Scholar Marie Gryphon, who is also a Senior Fellow with the Manhattan Institute, has just put out a new paper, It’s a Crime: Flaws in Federal Statutes That Punish Regular Businesspeople.
- Cato Media Fellow Radley Balko takes a look at the pathetic machinations in the Chicago Police Department. Reminds me of the proud boast from a patronage worker in the political machine: “Chicago ain’t ready for reform!”
Good stuff here. For more Cato scholarship, go here.
Bill of Rights Day
Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter.
Let’s consider each amendment in turn.
The First Amendment says that Congress “shall make no law … abridging the freedom of speech.” Government officials, however, insist that they can make it a crime to mention the name of a political candidate in an ad in the weeks preceding an election. They also insist upon gag orders in thousands of federal investigations.
The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, insist that they can make it a crime to keep and bear arms.
The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners. This safeguard is doing so well that we can pause here for a laugh.
The Fourth Amendment says the people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Government officials, however, insist that they can storm into homes in the middle of the night after giving residents a few seconds to answer their “knock” on the door.
The Fifth Amendment says that private property shall not be taken “for a public use without just compensation.” Government officials, however, insist that they can take away our property and give it to others who covet it.
10 Rules for Dealing With the Police
Our friends at Flex Your Rights have a new film that is about to be released. It’s called 10 Rules for Dealing with Police. Trailer for the film here. I have seen the entire film and it is an outstanding work–accurate and useful information, great screenplay, and great acting.
Believe it or not, the police can lie to you and can try to trick you into giving up your constitutional rights. Happens every day. In less than 45 minutes, this film teaches you what you need to know about police encounters. Every citizen should take an interest in learning about constitutional rights. And experienced lawyers will tell you that you can save thousands of bucks in legal fees by avoiding common mistakes. But you need to know the traps. If you have teenagers in the family, make them watch it. Knowledge is power. Spread the word.
Are You a Criminal? Maybe You Are and Don’t Know It
Yesterday, Michael Dreeben, the attorney representing the U.S. government, tried to defend the controversial “honest services” statute from a constitutional challenge in front of the Supreme Court. When Dreeben informed the Court that the feds have essentially criminalized any ethical lapse in the workplace, Justice Breyer exclaimed,
[T]here are 150 million workers in the United States. I think possibly 140 [million] of them flunk your test.
There it is. Some of us have been trying to draw more attention to the dangerous trend of overcriminalization. Judge Alex Kozinski co-authored an article in my book entitled “You’re (Probably) a Federal Criminal.” And Cato adjunct scholar, Harvey Silverglate, calls his new book, Three Felonies a Day to stress the fact that the average professional unknowingly violates the federal criminal law several times each day (at least in the opinion of federal prosecutors). Not many people want to discuss that pernicious reality. To the extent defenders of big government address the problem at all, they’ve tried to write it all off as the rhetoric of a few libertarian lawyers. Given yesterday’s back-and-forth at the High Court, it is going to be much much harder to make that sort of claim.
For more on this subject, go here, here, and here.
The ‘Honest Services’ Law
Next week the Supreme Court will be hearing two criminal cases involving the controversial “honest services” law that has been used by federal prosecutors in recent years to police ethics in government and business. By focusing attention on the (sometimes) shady dealings of their targets, federal prosecutors have been able to deflect attention away their own actions, at least with regard to this statute. No longer.
We have a preview of next week’s Supreme Court argument because Justice Scalia filed an opinion in February lamenting the fact that the Court had just declined to hear an appeal involving the honest services statute. Here is an excerpt from Scalia’s opinion:
It is practically gospel in the lower courts that the statute “does not encompass every instance of official misconduct,” United States v. Sawyer, 85 F. 3d 713, 725 (CA1 1996). The Tenth Circuit has confidently proclaimed that the statute is “not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing,” United States v. Welch, 327 F. 3d 1081, 1107 (CA10 2003). But why that is so, and what principle it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified. Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.
Is it the role of the Federal Government to define the fiduciary duties that a town alderman or school board trustee owes to his constituents? It is one thing to enact and enforce clear rules against certain types of corrupt behavior, e.g., 18 U. S. C. §666(a) (bribes and gratuities to public officials), but quite another to mandate a freestanding, open-ended duty to provide”honest services” — with the details to be worked out case by-case.
Read the whole thing (pdf). A few weeks after Scalia filed this opinion, the Court evidently reconsidered and accepted several appeals involving the honest services law.
For additional information, here is a podcast interview and an article I prepared for the Washington Legal Foundation. For more detailed info on the cases before the Supreme Court, go to SCOTUS blog.
For info on trends in the criminal law more generally, go here, here, and here.
Intelligence Squared Debate: America, Mexico, and the Drug War
Kudos to Jeff Miron, Andres Martinez and Fareed Zakaria for their decisive win in the Intelligence Squared Debate, Is America to Blame for Mexico’s Drug War?
For related Cato work, go here and here.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Tacoma Police Killings
National Review Online invited me to offer comments on the four police officers who were murdered in Tacoma, Washington. Here’s an excerpt:
The vicious killing of the police officers in Tacoma, Washington, may well have political repercussions for Mike Huckabee, as others have noted here. The primary suspect is Maurice Clemmons, who in 1989 received a 95-year prison sentence that was later commuted, in 2000, by then–Governor Huckabee. Whenever Clemmons has been free, he seems to have perpetrated still more violent crimes, according to the news stories.
I would, however, caution against a blanket condemnation of pardons, as well as any hasty move to simply abolish parole. The American criminal-justice system is thoroughly swamped. Right now there are more than 7 million people under criminal-justice “supervision.” About 2.5 million are behind bars, and about 4.5 million are on probation or parole. This system is greatly overburdened by non-violent drug offenders. Conditions vary by jurisdiction, but in general there is no prison space left. So it is unrealistic for us to say, “If a prisoner violates parole, send him back to jail immediately!”
Liberals thought it was unfair for Bush 41 to attack Michael Dukakis for his decision to release violent offenders like Willie Horton. It was not unfair at all because it raised good questions about Dukakis’s judgment.
The best way to curb violent crime is to lock up violent criminals. Sounds like a no-brainer but our system is swamped with drug offenders. Problems fester while the pols try to deflect criticism away from themselves.
Is Cato ‘Liberal’ on Criminal Law Issues?
Kent Scheidegger, who blogs over at Crime and Consequences, takes issue with the recent New York Times article that said liberal and conservative groups are finding common ground on criminal justice issues. He makes some fair observations but then he had this to say about Cato:
The picture is somewhat complicated by the existence of libertarian groups such as Cato that side with conservatives on economic issues and liberals on criminal law issues, but that is an issue of taxonomy rather than realignment.
I don’t think that’s accurate at all. To begin with, Cato has been very critical of gun control regulations. A few other issues where we part company with our liberal friends include hate crime legislation (and the role of the federal government more generally), welfare/social spending, and the rights of businesspeople. There are doubtless more issues, but this should suffice. I might add that ending the misguided drug war is a major objective, but there are plenty of conservatives who agree with libertarians on that topic.
More Cato scholarship here.
Right and Left Take on Feds
The New York Times has a good article about how lawyers on both the right and left are working together to try and roll back state power in the criminal justice system. Here is an excerpt:
“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”
There’s plenty to be concerned about — overcriminalization, federalization of crime, and the militarization of police tactics. I told the reporter that Cato has been uniquely positioned on this subject — that is, we remind our friends on the left that businesspeople have their rights violated all the time. And we remind our friends on the right that police and prosecutors abuse their powers in the “blue collar” context as well. It is encouraging that more organizations are taking a more skeptical view of government power generally and are embracing more principled positions with respect to the rights of the accused set forth in the Constitution.
Other blogs are covering this article and subject too — go here, here, and here.
It was also nice to see that our friend Harvey Silverglate’s new book (Three Felonies a Day) was mentioned. We had a book forum for Harvey a few weeks ago and C-Span was here to cover it.
For additional Cato work on criminal justice, go here, here, and here.
Chapman on Chicago Pols and Guns
Steve Chapman has another terrific column — this one about gun regulations and the tendency of politicians to exempt themselves from such regulations — for the public good, of course. Here’s an excerpt:
Roland Burris, another Chicagoan, has endorsed a nationwide ban on handguns and, in 1993, organized Chicago’s first Gun Turn-in Day. But the following year, while running unsuccessfully for governor, he admitted he owned a handgun — “for protection,” he explained — and hadn’t seen fit to turn it in along with those other firearms. Lesser mortals apparently can protect themselves with forks and spoons.
The Supreme Court will soon be hearing an important case about Chicago’s firearm regulations and the right to keep and bear arms. Cato just filed an amicus brief (pdf) in that case.
Also, persons interested in this subject should know that Cato associate policy analyst David Kopel has a new book just out.
For additional Cato work, go here.
New Trial For Cory Maye
Great news – for a change! A Mississippi court has ordered a new trial for Cory Maye.
When Cato author Radley Balko was preparing his report on violent, no-knock, drug raids, he discovered the case of Cory Maye, who was then on death row for murdering a police officer. On closer inspection, Radley thought the shooting looked like self-defense, not murder. At Maye’s initial trial, he had lousy legal representation. Thanks to Radley’s writings about the case, Maye secured top notch lawyers for his appeal. With a new trial, Maye now stands a very good chance of getting out of prison altogether. Congratulations to Radley Balko!
Previous coverage here.
John Yoo on Civilian Trials for Terrorism Cases
Yesterday, the Wall Street Journal published an article by John Yoo that criticized the Obama administration’s decision to prosecute Khalid Sheik Mohammed (KSM) and several of his fellow Guantanamo prisoners in civilian court. Yoo makes too many claims for me to respond to in a blog post, but let me address a few.
According to Yoo, “The treatment of the 9/11 attacks as a criminal matter rather than an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.” That is an odd thing to say for several reasons. First, it is all over the news: We are still very much at war. Second, even if Obama pulled U.S. troops out of Afghanistan and Iraq, would the United States really be “crippled” in the fight against bin Laden? ”Crippled” suggests the U.S. is on the verge of joining Costa Rica or Belize in terms of our military strength. Farfetched. Third, the Bush administration also treated the 9/11 attacks as a criminal matter when it indicted and prosecuted Zacarias Moussaoui in civilian court. Yoo seems to think that that call was mistaken, but did it ”cripple” the U.S.? Did the Bush administration, in effect, declare that the U.S. was “no longer at war”? Of course not. So why does Yoo make that claim now? Odd.
Next, Yoo complains that by bringing KSM to New York for a civilian trial, the prisoner will get to “enjoy the benefits and rights that the Constitution accords to citizens and resident aliens.” This is another odd statement because the benefits of a civilian trial (public trial, jury trial, calling witnesses, confronting adverse witnesses, etc) are not limited to citizens and resident aliens. After all, Asian tourists and illegal immigrants from Mexico, to take two examples, are not “citizens” or “resident aliens.” If a federal prosecutor were to accuse them of a crime, they would get a trial in civilian court. A claim that the government could deny, say, a nonresident alien from China a civilian trial would be totally at odds with American constitutional law. Yoo may disagree with that law, but if he does, he should have made that clear because he left a misleading impression.
Third, Yoo calls the Moussaoui trial a “circus” because it provided Moussaoui with a “platform to air his anti-American tirades.” Well, to start, just because Yoo calls a trial a “circus” does not make it so. The federal judge in the Moussaoui case did what we would expect a good American judge to do–that is, give the person who is accused of the crime a fair opportunity to speak and to offer a defense. At the same time, the judge must maintain order in the courtroom and anyone who becomes disruptive (including the accused) can be removed. The potential problem of a “tirade” is nothing new and is not, of course, limited to persons who share bin Laden’s twisted worldview. Some recent examples include the Unabomber and the shooter at the Holocaust museum. In short, it is a weak argument to critique our system of civilian trials because the defendant may want to insist on saying something that is unpopular, unpleasant, or incoherent. And, at the time of sentencing, a trial judge can respond, as Judge William Young did when he sentenced Richard Reid to life behind bars.
For more on the subject of military commissions, go here and here. For more on John Yoo, go here and here.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Gitmo Prisoners to NY for Trial
Today, Attorney General Eric Holder announced that he plans to move five prisoners from Guantanamo to New York for a civilian trial. Holder says the prisoners masterminded the 9/11 attacks and will now face the death penalty.
Some journalists and commentators are calling this move a wholesale repudiation of the Bush policy. Actually, no. Holder also announced that five other Gitmo prisoners will soon be put on trial before a military commission. Thus, the Bush framework essentially remains in place. The Executive will decide on a case-by-case basis who will be held prisoner (overseas, Gitmo, here in the USA), and who will be tried in civilian court, and who will be tried before a military commission.
By way of background, these prisoner controversies (habeas corpus, waterboarding, trial by commissions) fall into three basic categories: (1) detention/imprisonment; (2) treatment (including interrogation practices); and (3) trial issues. Today’s announcement concerns trials.
If there is to be a trial for persons accused of terrorism, it ought to be in civilian court. Courts martial are for persons actually in the U.S. military (the Fort Hood shooter). Military “commissions” are a hybrid that is nowhere mentioned in the Constitution. It is mistake for Obama to retain the commission system because it is (a) dubious to begin with, and (b) can be whimsical with respect to the people that end up there. Even the former Gitmo prosecutor has voiced his objections to the system!
Bin Laden and his cohorts murdered some 3,000 people on 9/11. It is lamentable that they did not all go down fighting at Tora Bora. But we do have to have policies in place for captures. Boiled down, the U.S. should follow the Geneva Convention for prisoners and, for trials, the procedures set out in the Constitution.
For additional Cato work on this subject, go here and here.
Filed under: Foreign Policy and National Security; General; Law and Civil Liberties
Problems with 911
Michael Crowley, senior editor at The New Republic, recounts some nightmare episodes with the 911 Emergency Response System in the current issue of Reader’s Digest. Here’s an excerpt:
If there’s one thing we think we can count on, it’s that a frantic call to 911 will bring a swift and effective response. Government’s first priority, after all, is protecting its citizens. But a spate of recent cases reveal shocking flaws in our national emergency response system–at a cost measured in lives.
One of those cases involved a young college student at the University of Wisconsin. She dialed 911 and then hung up without saying anything. Before the line was disconnected, however, there were screams and sounds of a struggle caught on tape. The operator claims she could hear no noise–so she did not dispatch the police or try to call back. Later that day, the college student, Brittany Zimmerman, was found beaten to death in her apartment. An audio recording of some of the 911 nightmares can be found here.
Michael Crowley stresses the need for better trained operators and perhaps penalties for the people who tie up the lines with frivolous calls. That’s all well and good, but more importantly, we must all acknowledge the limits of the 911 system and take responsibility for our own safety. As the libertarian sheriff, Bill Masters, points out “If you rely on the government for protection, you are going to be at least disappointed and at worst injured or killed.”
For related Cato work, go here.
Update: New Jersey State Police are reviewing how a recent 911 call was handled. A Catholic priest called 911 as he came under criminal attack in his church.
Prosecutorial Immunity
Last week the Supreme Court heard the case of Pottawattamie v. McGhee. The gist is whether prosecutors who fabricate evidence against persons accused of crime can be sued and held liable for money damages, or whether they are immune from suit. The Crime & Federalism blog reports on the back-and-forth at oral argument in a post entitled “Prosecutors should feel the chill.”
Cato filed an amicus brief in the case. A ruling is expected by the Supreme Court by June.
Greenwald on the Arrar Ruling
Glenn Greenwald has a good post about Arrar v. Ashcroft, an appeals court ruling that came down the other day. Here’s an excerpt:
Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” – despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing. I’ve appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria.
Read the whole thing. Also, the ACLU has put together a short film about the experiences of some prisoners released from Guantanamo.
Filed under: Foreign Policy and National Security; General; Law and Civil Liberties
CBS News Reports on Prospects for Drug Policy Reform
CBS News has a good report out on recent developments in drug policy, including extensive coverage of the Cato report, Drug Decriminalization in Portugal. Here’s an excerpt:
Portugal’s case is important, Greenwald says, because it provides hard evidence that removes the debate from the realm of speculation.
“If you’re the first state to do it, there’s really no way you can point to evidence of what will or will not happen. … It’s just theory and it’s very abstract,” he said. “The more examples that arise and the more that you can prove that the sky doesn’t fall in,” he said, the more politically feasible drug liberalization will become in the U.S.
So far, Portugal has largely flown under the radar, even in drug policy circles. But Greenwald says that, six months after his paper was released, he’s getting more invitations than ever to present it. In August, New York Times columnist Nick Kristof cited it in a column praising Webb’s reform push.
Read the whole thing. For more Cato scholarship on drug policy, go here.
Obama, International Law, and Free Speech
Stuart Taylor has a very good article this week about the Obama administration, international law, and free speech. This excerpt begins with a quote from Harold Koh, Obama’s top lawyer at the State Department:
“Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh — then a professor at Yale Law School — “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.
Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.
In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.
Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.
Read the whole thing.
More on ‘Hate Crimes’
Law professors James Jacobs and Kimberly Potter make an interesting point:
Laws do not spring forth from a groundswell of public opinion, but rather are the product of lobbying by interested (“interest”) groups that must mobilize support among politicians. The hate crime laws are passed because of the lobbying efforts of organizations that advocate on behalf of blacks, Jews, gays, and lesbians, a few other ethnic and nationality groups, and in some cases, women. …Regardless of what it accomplishes, the passage of legislation boosts morale and the status of the organizations and their constituencies.
That’s from their excellent book on the subject, Hate Crimes: Criminal Law and Identity Politics (Oxford University Press, 1998), p. 66.
If liberals write laws to “send messages,” can social conservatives do the same thing if they control the legislative assembly? Perhaps enact a criminal law against, say, adultery. Note that the point is not necessarily that the law be actually enforced or have any impact as far as reducing adultery in the jurisdiction. If the point is simply to “send a message,” liberals are going to be hard-pressed to lodge objections to conservative symbolic lawmaking.
Cato on Facebook
Cato on Twitter
Cato on YouTube
Cato Tweets