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Convicting the Innocent

Nobody cares about false confessions because convicts occupy the lowest rung in the social caste system. Once convicted, wrongfully or not, you are just toast. You are just another convict with zero credibility. You don't have enough credibility to overturn your wrongful conviction. Thus chicken begat egg.

I am about to shine a spotlight on that with a forthcoming book. It will be entertaining, on the order of Who Moved My Cheese. Still, nobody will care.

Videotaping a false confession, as Simple Justice (in blue below) argues, will simply preserve the confession and do nothing to prevent the coercion and trickery overcoming free will which caused that false confession to begin with. Confessions have always been recorded in some fashion. They have to be in order to be useful in court. The videotape will only make it seem more credible; and the contrary defense, the coercion defense, will seem only more incredible and absurd in light of the airtight video confession. The confession is developed strategically, in a very personal way unique to the particular defendant. When the moment is right it is sprung and recorded on paper or on audio, and soon now, video. Often, as in my case, the defense lawyer's and court's complicity is utilized. Nothing more will change, except perhaps the bureacracy and budget required to track, oversee, and insure the video process. What a mess.

In my case simple mental torture was used, by kidnapping my minor children and threatening to keep them indefinitely in foster care until I saw the light; isolation was also applied by requiring my wife to divorce me and have no contact, until I saw the light. Yes, I too was threatened with 2 years in county jail with no lawyer just to await the appointment of a lawyer and trial. Check the commentator on Grits' post below for similar story. It happens all the time. Standard operating procedure in Texas, and where else? Who knows. Maybe Professor Richard Leo does.

Thus my alleged victim, my second daughter, and my wife, who were the only three witnesses able to attest to my innocence, to essentially second or confirm my innocence had they been free to do so, were cut off from contact with me, and forced NOT to testify on my behalf under threat of never seeing the others again. The threat to destroy my family was carried out in this manner.

I gladly agreed to plead guilty in order to release my children from foster care and have them returned to my wife, their mother. It did not help that my lawyer promised I'd get probation and CPS was saying there would be "family reunification" if only I'd admit to abusing my own daughter. Of course at first I refused to admit because I didn't engage in any abuse whatsoever. I gladly paid the price of my conviction to save my family. That's what family means to me.

I'm innocent, I'm a convict, and the state justifies it by arguing that my false confession was given voluntarily. Nobody cares if it's false. The key here seems only that it be voluntary. No, this is not a Kafka story.

It happens all the time. This is your America.

What a shame, as I could have saved my children all that unnecessary pain and suffering they had to endure in foster care by making a false admission immediately, but I didn't see it that way. Not right away at least. My wife could have saved the Twenty Thou she spent on her lawyer getting the kids back, and she could have been saved a lot of heartache too. Oh well. You just live and learn. I just didn't "confess" soon enough.

Here are several recent posts on this, in no particular order,

Grits
Deliberations
a public defender
Simple Justice
In the News

discussing a new book, Police Interrogation and American Justice.

The title is actually wrong.

It should read " ... Injustice" and for forty-five dollars I'll bet it is more like a "how to" manual than a piece of prose.

The only way to preserve innocence and freedom in America is to massively cut police funding and the power which goes with it. It is way too easily abused.

In its other two certiorari grants, the Court agreed to examine law enforcement’s ability to conduct a warrantless search of the automobile’s passenger compartment incident to the arrest (Arizona v. Gant, No. 07-542) and when erroneous jury instructions can lead to habeas corpus relief (Chrones v. Pulido, No. 07-544). DC Dicta

Request for Cert here in Bell v Cone, earlier Supreme Court decisions here and here. The petition challenges the application of a technique used widely by the states' attorneys to dispose of state habeas actions: the ignored federal claim. By ignoring federal claims under guise of state rules of procedure, or simply for no reason whatsoever, states have been able to argue that vague elements of the "procedural default" doctrine apply. I'm glad to see that this form of legal abuse is getting the attention it deserves. I'm sorry to see that it takes a capital case and a big rich law firm to bring it up with any force.

Reviewing Wallace v Kato

The Short Skinny on Wallace v. Kato from Scotusblog and a longer piece by Kent (Crime and Consequences), here:

Justice Antonin Scalia wrote for the majority. There were two Justices in partial dissent. The case was Wallace v. Kato (05-1240, download here). In that case, the statute of limitations for filing a civil rights claim was two years, under Illinois law.

The false arrest claim in the civil rights lawsuit by Andre Wallace of Chicago had its origin, the Court ruled, when he appeared before a magistrate after his arrest and was bound over for trial. More than two years elapsed between that date and the day he filed his lawsuit, and thus, the Court decided, the lawsuit was too late.

The Scalia opinion was supported by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Clarence Thomas. Justice John Paul Stevens joined in the result only, along with Justice David H. Souter. Justice Stephen G. Breyer dissented, joined by Justice Ruth Bader Ginsburg.

The Supreme Court (Danforth opinion), Ohio and Missouri make news this week in the Habeas and Residency Restriction arenas. Get your update from here of course, thanks to Doc Berman.

On Danforth, the headliner here says it all (THANKS SCOTUSBLOG). Was that supposed to be a good thing I wonder, Wanda? To expand the "criminal rights" -- I'm sure it is a magnanimous thing for the Court to allow the States to do that. But read on, and we find we are actually talking about something akin to the retrospective application, or as some say, the "retroactive benefit" of Supreme Court rulings. Chief Justice Roberts dissented, in which Justice Kennedy joined.

Is it only coincidence that retrospective application of laws is also in the spotlight in those Residency challenges? Don't let the big words fool you. What this involves is determining whether the rules of the game can/will be changed in the middle of the fourth quarter, sort of like counting the Florida and Michigan delegates after the DNC said they wouldn't before the vote (or non-vote), because the state's delegations broke, (transgressed?) the Party rules.

That depends, of course, on what the word Justice means to you. The Framers'? I heard something about "restoring habeas" (Obama) in last night's debate with Hilary. Was he speaking only about Guantanomo detainees? Barrack also mentioned the phrase "wrongful convictions." This is clearly something to be redressed through a pardon or a more muscular Habeas process. There must be consequences for those who would callously engage in behavior designed to produce wrongful conviction of innocent individuals.

Here is an interesting, if tangential discussion arising out of Danforth on Scotusblog's site.

“…while on your website you claim this is relevant to constitutional habeas.”

If by “constitutional habeas” you mean habeas as required by the Suspension Clause, the only point in today’s decision relevant to that question is the Court’s acknowledgment that common law habeas (and therefore the Suspension Clause) was limited to jurisdictional questions. That was once a furious historical debate, but it’s largely over, and the Fay v. Noia revisionism lies in ruins.

The primary debate over § 2254(d)– the one in the two law review articles I cited in the beginning and the one before the Ninth Circuit in Irons v. Carey — is all about the statutory writ and whether Congress can, consistently with Article III, require “deference” (actually a limited form of res judicata) to state court judgments in a class of cases where Congress could repeal the jurisdiction entirely if it chose. Today’s holding on the nature of the Teague rule is highly relevant to that debate, as I explained in comment 7, above.

And here's this one concerning Theory: "Blinking on the Bench -- How Judges Decide Cases"

Bad Trail Poetry

I'm shocked at the primary sweep Obama has managed to obtain.
Am I still living in the US of A?

They say that Hillary's back is against the wall, that she needs a political hat trick.
No question the big MO is going that way, even though some were afraid to say it sooner.

The question is, will there be backlash?
The tail of the dragon in defeat is still unpredictably dangerous.

The Asian, Latino, Black vote seems to have been, caricatured.
The white male's, the white woman's too is broad brush, certain.
But talk is cheap. In which direction will the vote actually be cast?
As Maine? Or New Hampshire? By a margin of . . . damn it's going to be close.
The superbowl wasn't this hard on the fingernails.

Michigan and Florida? Outta there. Who voted anyway?
Romney, out but could be back in 'twelve.

No question D turnout has never been higher.
So if super delegates don't go with the popular vote, what happens next?

Iglittarati

AND ON A LIGHTER NOTE:

The administration immediately condemned the House action, noting that no White House official has ever been cited for contempt. "This action is unprecedented, and it is outrageous. It is also an incredible waste of time -- time the House should spend doing the American people's legislative business," White House press secretary Dana Perino said in a statement.

Yes, the legislative business of, say, impeaching the President, investigating wrongdoing emanating from the West Wing, which has, you don't say, been politicizing law enforcement, trashing Justice, US Attorneys?

Oh, but that's exactly what the congress was doing. They're just finding more balls now. Read the WP on it here. Even if they will be pardoned anyway, don't we just want to know if anybody did anything wrong? Don't the ones who are under scrutiny want to enlighten us? Don't we care? This theoretical fight over Executive Privilege carries only so much water when at stake we find fragile notions of trust, integrity of Justice, etc.

December 7 is a date which will live on, in infamy to infinity ad infinitum. Bad, very bad. The point is not to throw anybody in jail but to promote the ability of Congress to investigate the executive, if and when necessary. It has never been more necessary.

AND ON HABEAS: (Thanks Howard)

Of Beethoven, of vodka, or of the Bill of Rights containing the first ten amendments to the U.S. Constitution? The U.S. Supreme Court has ruled that if a criminal suspect indicates in any manner during custodial questioning that he wishes to remain silent, interrogation must cease. Today, a fifteen-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit resolves whether a criminal defendant's statement, during an interrogation, that "I plead the fifth" is sufficient to invoke the right to remain silent. Complicating this question, the appeal arises in the habeas context challenging a state court conviction and is governed by the federal law whose acronym is AEDPA. The majority, in a decision that you can access here, overturns the federal district court's denial of habeas relief. Back on November 6, 2006, a three-judge Ninth Circuit panel voted 2-1 to affirm the district court's denial of habeas relief. Now-Chief Judge Alex Kozinski joined in the original panel's majority opinion, which a federal district judge sitting by designation wrote. The judge who dissented from the panel opinion wrote the en banc majority opinion on behalf of a sizable majority. Because this case was reargued en banc before Kozinski became the Ninth Circuit's chief judge, he was not guaranteed a seat on the en banc panel, and he was not randomly selected to serve on the en banc panel. Thus, we can only imagine what he might have said in response to today's ruling.

And,

By a vote of 8-5, en banc Sixth Circuit holds that the federal constitutional right to the appointment of counsel for indigent defendants seeking first-tier review of plea-based convictions in Michigan state court does not apply retroactively on habeas review: You can access today's ruling at this link. The U.S. Supreme Court specifically recognized this right to counsel in Halbert v. Michigan, a ruling that issued in June of 2005.

And,

By entering into a plea that required at least a 27-year prison sentence on one count of child exploitation, defendant waived any Eighth Amendment challenge to what that the federal district judge described as "the most unjust sentence that I have ever imposed": The U.S. Court of Appeals for the Eighth Circuit issued this ruling today (2/14).

Fantasy

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Labels and Such: Liberal, Frontrunner

Confucius says--A preview on future, by take poll here:

Question--What's the best outcome as Clinton and Obama battle for delegates?

Obama wins quickly and builds a transpartisan movement.
(1530) 52%

Clinton wins quickly and turns her energy on the GOP.
(225) 7%

Clinton and Obama duke it out until the brokered convention in August.
(366) 12%

They team up quickly to create an unbeatable dream ticket.
(779) 26%

Is America ready for being called liberal? What does this mean, anyway. Is progressive any different? President Kennedy has a few words below. I'm really looking forward to comparing some choice quotes from the current administration in the history books, if I live that long. I'll be willing to bet that wimpy, week-kneed, defeatist will be among them. Our foreign policy has been a disaster, as has our prisons'. You'd think our slogan has been Every Foreigner a Terrorist or Prisoner, or Low Wage Worker (read Slave).

Any thoughts on this? I'd call myself fiscally conservative and socially liberal, but I'm ready to fight the world and occupy it too, just like a hawk. Just because I'm ready does not mean that I would. The question is, what's best for America. A long slow occupation of Iraq and Iran, military buildup vis a vis China? Or economic development and diplomatic cooperation lifting up the weak and poor.

Here's Eric:

The label will be forced on Democrats regardless of their preference, and weaseling out of it will only make them look wimpish, as it did Kerry. Rather than shying away from the L-word, Democrats should embrace it proudly, while ensuring that their definition is the one that carries the day.

But this is the part I like:

Speaking to New York's Liberal Party in September 1960, Kennedy proclaimed, "What do our opponents mean when they apply to us the label 'liberal'? If by 'liberal' they mean, as they want people to believe, someone who is soft in his policies abroad, who is against local government and who is unconcerned with the taxpayer's dollar, then...we are not that kind of 'liberal.' But if by a 'liberal' they mean someone who looks ahead and not behind, someone who welcomes new ideas without rigid reactions, someone who cares about the welfare of the people--their health, their housing, their schools, their jobs, their civil rights and their civil liberties--someone who believes we can break through the stalemate and suspicions that grip us in our policies abroad, if that is what they mean by a 'liberal' then I'm proud to say I'm a 'liberal.'"

Washington Business As Usual

What more could America expect from our President? A lot! As this terrific short by Dahlia notes:

water-boarding has morphed from torture that unquestionably violates both federal and international law to an indispensable tool in the fight against terror.

Charting that progression is almost not worth doing anymore, so familiar are the various feints and steps. First, the administration breaks the law in secret. Then it denies breaking the law. Then it admits to the conduct but asserts that settled law is not in fact settled anymore because some lawyer was willing to unsettle it. Then the administration insists that the basis for unsettling the law is secret but that there are now two equally valid sides to the question. And then the administration gets Congress to rewrite the old law by insisting it prevents the president from thwarting terror attacks and warning that terrorists will strike tomorrow unless Congress ratifies the new law. Then it immunizes the law breakers from prosecution.

That's how Americans have come to reconcile themselves to illegal warrantless eavesdropping and to prisoner abuse at Guantanamo Bay. It's why we're no longer bothered in the least by the abuse of national-security letters or extraordinary rendition or by presidential signing statements. Deny, admit, codify, then immunize. The law as quickstep.

Comment on AWA

Thanks to a kind reader, whose site can be found here, (and which I've added to my blogroll under the appropriate heading, Sex Offenders, Public Education and Civil Rights, the following comment on a Topix piece from Hampton Roads: "States can protect children without the problematic Adam Walsh Act"

It is so refreshing to see writers print facts and not just follow the politician's methods of preying on a mostly uneducated public's fears.

People need to wake up to this mess that is being created by politicians. Ted Strickland & Marc Dann should stand up & be LEADERS and admit they have made a wrong decision. Thank God some other states are thinking this modern day witch hunt through & are concerrned about financial and social ramifications. This law does NOT make us any safer.

I feel terrible for what happened to Mr. Walsh's son but it does seem to me now that this entire thing has BECOME a business and money making venture for him.

I want the to know who PREDATORS are. The mess in OHIO has created so many Tier 3 offenders it has watered the entire registry down and makes it useless. PLUS, how in the world is Ohio going to pay for this???? Strickland is now making budget cuts because we can't afford our current system.

People may think this law does not apply to them or anyone they know. When we are complacent and allow politics to start strippping constitutional rights away it is a VERY slippery slope. YOU ARE AFFECTED WHETHER YOU REALIZE IT OR NOT.

Then, there was this one demonstrating how the registries can, and have been used:

Sex offenders should be castrated with a plastic spoon dipped in vinegar. The governments should do what ever it takes to keep these POSs out of society.

The first comment is right on. Check out this NYT piece today, about a slice of history we'd all rather forget, but can't, called How Democracy Produced a Monster. As for the second comment. This is the best argument why the registries are going to go, or should go, the way of the Edsel, known as the "most monumental failure in the Twentieth Century" . . . according to Failure Magazine, which suggests that its legacy could also be the most instructive. The Most Instructive could be a bit of a stretch but I'll not take that argument too vociferously. I can think of bigger ones, but it'll take time, time. Tick tock, waste not want not, said our most famous Richard.

On Theory

Here is a good NYT article on theory.

The Great Writ Debunked

An ineffecive piece of parchment as slick as the Constitution is solid. This, from Judging Crimes, promises to be a great read. HT Crime and Consequences

And here, read the most recent Ninth Circuit opinion(s) on whether the habeas law's standard of review violates the Constitution, Crater v Galaza

Here's a footnote from the opinion explaining how AEDPA, the current version of the habeas writ, got it's misleading nomenclature (translation: name).

1The statute’s imposing title is somewhat of a misnomer. The provision held constitutional by the panel—section 2254(d)(1), the centerpiece of the statute’s modification of federal habeas practice—has nothing to do with antiterrorism and little to do with the death penalty. Rather, § 2254(d)(1) restricts the rights of all habeas petitioners detained in state custody, including those, as in this case, who have neither been sentenced to death nor convicted of an act of terrorism. The title was, however, politically appealing in the wake of the bombing of the Oklahoma federal building, on which event President Clinton relied as justification for the bill of which § 2254(d)(1) was a part. President Clinton’s Statement on Antiterrorism Bill Signing, 1996 WL 203049, *1 (Apr. 26, 1996).

I LOVED Barack's comment --"we need to be as careful about getting out as we were careless going in" The media really loves him, but are afraid to piss off Hillary. Very afraid.

How many people were afraid not to vote for Bush, and look at what they got for their fears:
A failed Republican Party doing its best to run away from a well deserved reputation for re- distributing wealth from poor to the rich.

They've redefined the term compassionate conservative. Now it means starve'em and slaughter 'em.

Here, at America's most revered, The Nation, is the infamous Katrina Vanden Heuval on this very topic. It starts like this:

"We must ensure that all life is treated with the dignity it deserves," President Bush declared during his final State of the Union address. He then segued into a call to ban human cloning. He didn't talk about dignity in terms of ravaged pensions, working longer hours for lower wages, and the loss of healthcare and other benefits. He didn't talk about dignity in terms of the rise in poverty – 37 million Americans, one in eight citizens now living below the poverty line in the wealthiest nation in the world. And he certainly didn't talk about dignity when it comes to migrant workers in Immokalee, Florida . . .

Know what? Living under bridges doesn't sound half bad compared to how the tomato growers are being treated right under Florida's nose. Compassion kimchee!

More Larnin' If You Please

I saw this today from Sex Offender Research about banning sex offenders from emergency shelters. It prompted me to create a new section on my blogroll which I'm calling Sex Offenders, Public Education and Civil Rights.

This will help you stay up to date on all the new developments in this cutting edge arena of American Civil Rights.

Perhaps to be more aptly designated "How America Got Screwed"

Now, if I'm going to get serious about blogging I'll have to start adding labels for my posts, and add them retroactively. A rainy day project indeed if I might be presumpuous enough to think that anybody cares.

Criminal Defense (Offense) in Texas?

I had to add this guy (Mr. Warren L. Clarke aka Hack Lawyer) to my blogroll when I saw the following re Texas CCA. In my years following the CCA I've never seen so many remands in a year, let alone a day. What's going on? Bringing justice to Texas was never very easy -- go on vacation, leave on probation.

The Court of Criminal Appeals handed down no published opinions today. However, it remanded four applications for writ of habeas corpus to the trial court for further fact-finding. They caught my eye because each dealt with allegations of ineffective assistance of counsel and are worth looking at.

In the first application, the defendant claimed ineffective assistance because her trial counsel failed to present evidence of her mental condition at the time of the offense. She further claimed that there was ample evidence available to establish that she was taking medication for schizopohrenia and bipolar disorder. The Court, finding that the records existed and clearly would have been relevant to support her credibility and undermine the State’s theory which portrayed her as a calm, calculating, clear-headed murderer, held that the claim alleged facts sufficient to provide her with relief. The Court also noted that trial counsel’s affidavit did in fact concede that he did not present any mental health evidence but failed to explain why he did not present any of this evidence after the defendant testified in her own behalf. The Court made clear that trial counsel be provided with another opportunity to explain his failure to present the evidence.

Numbers Guy and Recidivism Update

Here's Corey over at Sex Crimes

I wish the Numbers Guy had looked at the DOJ study which had the odd result of showing that non-sex-offenders actually had a higher rate of committing sex crimes upon release than did sex offenders. That seemingly anomalous result sometimes adds needed context to discussions of sex offender recidivism. It would also be nice to see a greater attention paid to breaking down sex offender sub-populations to assess those recidivism rates in context. Overall, though, I'm happy to see this issue getting a little more coverage. It's always nice to have the possibility that facts, not fear, will inform policy.

Facts, what are those?

OHHH NOOOO ! --- not global warming?

So Right, grasshopper: we must blame it on somebody else. "We"'re never responsible.
But papa, do bears shit in the woods?
Does the Wall Street Journal like taking candy from a baby?