Posts Tagged ‘Justice’

The Thinker

The verdict

Eight years ago I was called as a juror, sat for a trial then learned over lunch that the defendant had copped a plea. This week I was called to be a juror again. Seventeen were called for a criminal trial, eight of us were empaneled and six of us got to render verdicts. I was one of the latter. I should have expected as much given that my juror number was 3. If hoping to get out of jury duty trial, hope they give you a larger number.

Aside from paying taxes and obeying laws, citizens have only two duties. Voting is optional, but jury duty is not. So I drove to the courthouse in Belchertown, Massachusetts (a really bad name for a town, BTW) and got predictably lost for a while, arriving about ten minutes late. Fortunately, I was not in trouble or the last to arrive. They forced us to watch Today on NBC and I tried to tune it out with a crossword puzzle.

The case involved someone I realized later I probably had met tangentially. Not only does she live in my little village, she also does a lot of ordering at the local pet food store we frequent. At age twenty-nine, she looked ten years younger and no more than one hundred pounds soaking wet. She was charged with negligent driving and driving under the influence. She had participated in a charity golf event for her employer, played eighteen holes of bad golf, retired to the clubhouse and consumed (she testified) about twelve ounces of an IPA. Sometime afterward she drove home, but probably missed the turnoff to the shortest way home on her GPS and ended up in South Amherst. There at a set of double roundabouts she flew over the circle, destroyed a tire and ended up on the side of the road. She said approaching the roundabout she had glanced down at her GPS to understand how to navigate the two roundabouts and that bad timing caused her accident.

A lady watched the whole thing and she and her husband tried to offer assistance. She testified that the defendant seemed shocked and/or drunk. She was not very coherent when she tried to talk to them, but was proactive enough to have her registration and drivers license ready for the officer who showed up some minutes later. She was given a sobriety test by being asked to walk a straight line, one foot in front of the other. After one step she leaned on her car for support. She attempted the test three times and was eventually arrested and taken to the police station. She never got a Breathalyzer test.

So it was up to the six of us who actually made it to deliberations to pass judgment on her. The woman who watched the accident testified, as did the arresting officer. Her husband who was also a witness was not called, nor was a second officer also there. The judge solemnly instructed us that we either had to find her guilty or not guilty, and we had to be unanimous.

In one respect Massachusetts law is good, since we were a jury of eight instead of the traditional twelve, and two were alternates who got to sit in a nearby room and twiddle their thumbs. Even with six of us in a room it looked like we might end up as a hung jury. However, no one really wanted to come back on Friday to deliberate some more because it didn’t look like we would have a change of mind.

At least it was easy to convict her of the first charge of negligent driving. Not only was there a witness, but also the defendant admitted it in her testimony. The driving under the influence charge though divided the jury. The standard for convicting someone was that the evidence had to be beyond a reasonable doubt. And we all had different ideas about what the criteria was for beyond a reasonable doubt. The judge was not too helpful either. When we filed back into the courtroom for more instructions he basically told us that we had to figure it out for ourselves and we had to be unanimous.

So when we filed back into the jury room we at least agreed that the beyond a reasonable doubt is an unreasonable standard. But it is useful in forcing us to compromise our principles, which is probably the point. Where was the reasonable doubt here? The officer testified her eyes were bloodshot and there was the smell of alcohol on her breath. Then there were those repeated sobriety tests. Was this beyond reasonable doubt? In my case, at age 61, I wasn’t sure I could pass the test completely sober.

It was to a couple jurors, but not to the rest of us. Would one beer affect one skinny woman that much? Maybe it was half a dozen beers. It’s hard to say how tanked she was because of the lack of a Breathalyzer test. Why was one not done? We weren’t allowed to ask any questions, simply judge on the evidence presented. And we were explicitly told we had to use our own life experiences as a guide.

I remembered a day thirty-two years earlier when my wife and I arrived with painting supplies to paint the townhouse we had just purchased. We opened the door to find the ceilings down and water flowing out the door. It was probably the most traumatic thing that had happened to either of up to that time, made more traumatic because we only had a verbal okay on our insurance policy. We were in shock for hours. That was my life experience. Could something like this have happened to this woman, who had only recently bought the relatively new Acura for cash? Maybe she was mentally ill too? Was she rattled because of something like that, or from having one too many IPAs at the club?

Who could say? When pressed I agreed that she was likely under the influence. But could I convict her for this opinion when I felt it did not meet the standard of a reasonable doubt? We all agreed we would have liked to hear from the witness’s husband and the second officer. But the prosecution didn’t think it was necessary for their case.

Ultimately, four of us felt there was reasonable doubt about her condition and two did not. The two who felt she was guilty compromised their reasonable doubt standard. And that was the justice we ended up delivering: not guilty. The forewoman said she could agree because she was at least found guilty of negligent driving.

The defendant cried when the verdict was read, whether from joy or sorrow is hard to say. It was more likely from joy because her license had been suspended. Because of our verdict she was allowed to drive again. I felt we delivered imperfect justice. On that no one in the jury room disagreed. We hope that if she was drunk at the time, she learned her lesson. We’ll never know.

I learned that despite all the legal mumbo jumbo and the sonorous words from the judge, our jury system is imperfect. I suspect the amicable judge presiding over the case silently agreed.

 
The Thinker

I smell a cover up

Curiouser and curiouser. Just how far down the rabbit hole does this domestic spying business go anyhow?

If the Bush Administration has its way, not even the Congress will know. Well, maybe a few key members of Congress with the proper clearance will know. Of course, because publicly revealing their knowledge would be a crime, they are keeping their lips zipped.

What we do know (at least at this moment) is that Congress is balking at extending existing wiretap provisions in the domestic spying legislation that it hastily passed this summer. Democrats in Congress want more court and congressional oversight on calls placed between American citizens and potential terrorists overseas. The current legislation delegates to intelligence agencies decisions that traditionally were authorized by the courts. In addition, President Bush is now insisting that the Baby Bells be granted retroactive immunity from the law for facilitating unlawful wiretaps and access to calling records. The Democratic Congress is asking the very reasonable question: “How can we know whether to grant the Baby Bells this immunity when you won’t tell us what they did?” The Administration retorts that it cannot tell the committees responsible for intelligence legislation because in doing so state secrets could be exposed.

Well! Something here stinks to high heaven, that’s for sure. The Administration seems to be tacitly admitting that the actions taken by compliant telephone companies was probably illegal. The nature, size and scope of the illegality though are largely unknown because only a trusted few know what the Baby Bells actually did. One thing is clear: the administration does not want them to held liable. Why? Because the Baby Bells were just doing their duty for God, country and the American Way, which means that if something illegal did happen they should not pay any penalty.

Naturally, I hope that the Congress refuses to pass a bill with such a provision without first knowing the full details of these transgressions. If, as I expect, President Bush vetoes a bill that does not contain the immunity provisions, then I make the following modest proposals instead. First, the bill should grant the Baby Bells immunity if and only if the President agrees to waive his right to pardon any individuals in his administration who may have facilitated this lawbreaking. Second, the bill should require that a special prosecutor to investigate this matter. This way if violations of the law occurred then those who instigated them could be held accountable.

The way I studied government, no one is above the law. Yet in this case, the Bush Administration appears to want to retroactively ensure that no one will have to pay a price for their decision. They want to frame the debate as one of national security, and not pay a price for the fact that they arm-twisted the Baby Bells into facilitating these likely illegal acts. They want us to believe what is simply not true: that they were not required to first petition Congress for these powers.

A decade ago, such an action would have been routinely dealt with by the Justice Department. If there were any concern that the Justice Department could not be impartial, a special prosecutor would be appointed. Few in Congress now trust the Justice Department to impartially go after any violation of the law. This sad and sordid squabble tells us just how badly our system of checks and balances has eroded during this administration. It simply does not give a damn about its duty to ensure that the laws are faithfully and impartially executed.

If the Democrats are more worried that they will be judged “soft on terror” then ensuring our civil liberties and agree to these requirements then the Administration wins through intimidation. Moreover, Congress’s ability to exercise meaningful oversight is further degraded. This is no time for the Democratic congress to capitulate yet again. It needs to demonstrate that it truly is a coequal branch of government. Moreover, in this case it holds the Trump Card. President Bush needs an extension to the badly named Protect America Act. These proposed minimal accommodations to the current egregious law are entirely reasonable. I hope the Congress stands firm. In the process, it will help restore both the rule of law and our system of checks and balances.

 
The Thinker

Impeach Bush and Cheney

Update 7/23/2007. Here is a Microsoft Word document you can to write your own congressional representative or senator. Tailor to suit your needs, but make sure to fill in the areas between < and > as appropriate. You can get the addresses for your senators and representatives here.

If this article in yesterday’s Washington Post is correct then President Bush and Vice President Dick Cheney must be impeached. This is necessary not just because I do not particularly like either of them, but because there is clear evidence that are breaking the law.

If you read this article, many of you wonder if I am making a mountain out of a molehill. You may think this might be of interest to lawyers and academics, but it is nothing that you should fret about. If you feel this way, let me try to provide an example that is more concrete.

As is true in many jurisdictions, suppose that your sheriff is elected. Suppose you were elected to the county board of supervisors. You and your fellow council members create and provide oversight to the laws (ordinances) to be followed within the county. Suppose that you and your fellow supervisors keep hearing from citizens that the cops are only pulling over blacks for speeding.

You and your fellow supervisors decide this needs investigation. Therefore, you go to the sheriff and ask him to provide records on all speeding tickets issued by your county. However, rather than cooperating the sheriff refuses to provide any information. Moreover, he dictates that no one within the police force may discuss the matter with any member of the county council. Although it is nowhere in the county’s charter, he claims that if people in the sheriff’s department were to give out this information then his ability to effectively run the police department would be hampered. He calls it the “sheriff’s inherent privilege”. Since he has a lawyer on his staff, he has the lawyer write an opinion that agrees with his assessment. Curiously, the sheriff is also his boss. He cites the opinion as his justification for not providing the information.

What would you do next if you were a member of the county council? Most likely, you would try to keep trying to discern the truth. If there was a violation of county ordinances you would want it remedied, and those responsible to be held to account to county law. After all, the current county code requires that the police department must uniformly enforce the law. Instead, you are stonewalled by the sheriff’s department. The only thing they will do is agree to short “off the record” meetings. The sheriff will limit those you can talk with. He will insist that no notes will be taken. No one is allowed to take an oath before providing testimony.

This, my friends, is exactly what the Bush Administration is doing with Congress. Congress is trying to find out whether the law of the land, which requires the Justice Department to impartially enforce the law, has been violated. If true, such actions would demonstrate serious contempt for the law. It is quite clear now that the Justice Department is apparently being used for partisan political reasons. Attorneys who investigated alleged voter fraud against Republicans are retained. Those who do not are fired. Congress is trying to find out the extent of this transgression. Is it just a few bad apples in the Justice Department? Or was this the official policy by the president?

The public would justly chastise Congress if they simply ignored the issue. Unfortunately, the Administration will not allow Congress to determine the truth. Not only do they claim that such information is covered by executive privilege, they have specifically instructed the Justice Department neither to file contempt charges nor to empower any grand juries to look into these potential violations of the law.

The effect of this policy is to make the Congress deaf, dumb and blind whenever the Executive Branch so chooses. Perhaps Congress is supposed to consult with psychics in order to determine the truth.

Our system of checks and balances is not just a good idea. It is fundamental to having an accountable government. No one should be beyond the reach of the law. It is so important that in 1868 we ratified the 14th Amendment to the U.S. Constitution. However, by issuing these instructions the White House is putting itself beyond the law and is also trampling on the constitution. It has become its own judge and jury. Not surprisingly, it is not finding much wrong.

For egregious violations of the rule of law that threaten the sanctity of our government and the rule of law, impeachment is the constitutionally prescribed remedy. The House of Representatives impeaches. An impeachment is a political indictment which amounts to saying “Something sure smells fishy around here.” I think that is already amply clear, but the House makes this judgment, not me. It takes a vote of two thirds of the Senate, which can only occur after an impeachment, to remove impeached office holders from office.

Given the White House’s unyielding positions, its outrageous assertions of executive privilege (which is mentioned nowhere in our constitution or in the law), as well as its many dubious “signing statements” that in some cases indicate the Executive Branch refuses to adhere to the law of the land, impeachment is the only remedy to restore the rule of law. The evidence to me is overwhelming: Bush and Cheney have egregiously, consistently and deliberately violated the separation of powers doctrine. More importantly from a legal standpoint, by not allowing the Justice Department to follow the law of the land, they have broken the law. If this policy came from Bush and Cheney then they are also lawbreakers. A grand jury indictment (impeachment) and trial (vote by the Senate) is our prescribed means to assess whether these actions are so egregious that executive leadership must change out of turn.

Yes, I know their terms have less than eighteen months to go. I also know that most Republicans in Congress are spineless at this point. During the Watergate Crisis, Republicans put the needs of the country ahead of partisanship. Sadly, I see few signs that will happen this time.

Nonetheless, their impeachment is now vital. If you are an American that believes that our constitutional form of government means something, you too much act. You must speak up. You must contact your representative and senators and let them know that Bush and Cheney should be subject to an impeachment process and, if the Senate decides, removed from office. If they refuse to follow your advice then you must take to the streets in peaceful protest until they show the respect for the rule of law.

If we fail to do this then our constitution has become a meaningless document. We will become a nation with forever two standards of justice. The United States of American will resemble Animal Farm. The pigs, in this case the Executive Branch, will forever be “more equal” than other branches. It will be accountable only when it chooses to be held accountable.

This entry is going to my representatives. If you cannot find the time to express yourself but you agree with my analysis, feel free to print this out, sign your name to it, and send it to your representatives and senators. You have my permission.

It is time to take back our country. This latest outrage is the final straw. It must not stand.

 
The Thinker

Oh, the humanity!

It is completely impossible to ignore Paris Hilton when she is in the news. I wish I could ignore her, but unfortunately, the media will not let me. They figure I want to know all about her tawdry little life as the exceedingly spoiled and obnoxious heiress of the Hilton estate. The latest vital news bulletin assaulting me on Yahoo! News is that after three days in the clink for violating the terms of her probation (driving on a suspended license) the Los Angeles County sheriff sent her home to serve her sentence because of an “unspecified medical condition”. To make sure she did not resume her habit of driving drunk or going 70 miles an hour without headlights in the dark on a 35 mile an hour road, she was required to wear an ankle bracelet and not leave her house. Now Paris is being hauled in front of the judge again to see if she should go back to jail. Of course, poor Paris, probably because of her unspecified “medical condition”, wanted to “phone in” her court hearing.

I did not want to know any of this. However, now that I know I want to fly to Los Angeles, find Paris and slap her on both cheeks. That might get me thrown into the clink too for assault, but it would be worth it. Maybe Paris and I can get adjoining cells. This is unlikely though. Because she is a celebrity and I am not she gets special treatment. She is housed in a special wing of the Los Angeles County jail for people like her. Lord knows that is punishment enough; interacting with ordinary lawbreakers would amount to cruel and unusual punishment, which is unconstitutional. One thing is for sure. Even if Paris and I were in jail together, the Los Angeles County sheriff would not be releasing me to home custody for an unspecified medical condition, despite my inflamed hangnail.

Yes, of course Paris should serve her 23-day sentence, which has already been cut in half from the original 45-day sentence. She should serve it to demonstrate that no one, including celebrities, is above the law. The reality of course is that with a few exceptions the rich and the famous do get a higher tier of, er, service from the judicial branch.

Most of us though when we are in the presence of a celebrity lose all sense of perspective, which is likely what happened to this sheriff. We are too awed simply being caught in their aura to impartially appraise them as fellow Homo sapiens. There is something about being a celebrity, or just plain beautiful, that interferes with our prefrontal cortexes. Celebrities of course know this. This is the one muscle they have that operates reflexively. So it is a natural law that they will use their talent, charm and ready reserves of cash to ensure they keep living in their artificial bubble, free from any kind of pain or inconvenience.

You have to understand that Paris is suffering, poor dear. She is used to five star hotels. Can you imagine the shame and humiliation of being sent to a common county jail and forced to sleep on a thin mattress? To make your own bed every morning? To be woken up at an inconvenient hour and being told when to do things like eat and take a shower? Oh, the humanity! Three days apparently was sufficient for her to feel total repentance. “I am going to serve the remaining 40 days of my sentence,” she said today. “I have learned a great deal from this ordeal and hope that others have learned from my mistakes.”

Yes, she has learned that three days in jail is enough for a Hilton heiress, who should never have been subjected to such an indignity in the first place. The very idea! Not to fret. Even though she is at home, the remaining 37 days will be just as rough on her. After all, she cannot dash off on her private jet anytime she wants to for a while. She is limited to her tiny palatial estate, her toys, her closets full of shoes, her cell phone and her many airhead celebrity friends. Imagine the powerful lesson she will learn when she is forced to get up whenever she feels like it. Doubtless, she will be crying in shame when she takes those laps in her private pool.

However, I am all for an alternative sentence. I think Paris should spend her remaining 37 days, not in the Los Angeles County jail, but in Darfur. There she can do some community service, perhaps by handing out Giorgio Armani handbags to the raped and pillaged women who have to call these squalid and unsafe refugee camps home. For the children, DVD’s of the Telatubbies are in order. Bring many cases of Evian water, Paris. I am sure the women there will be quite grateful. It would be thoughtful to give them 50% off coupons for their next visit at a Hilton hotel or resort. Spread the love, Paris!

One thing going against her is that because she is a particularly obnoxious spoiled celebrity, American’s dander has been raised. Members of the Los Angeles County Board of Supervisors report over 400 angry emails and hundreds of phone calls from the public all with one common theme: put that chick back in the clink! Paris should count her blessings. The days of the French Revolution are long past. Instead of a mob leading her to a guillotine, she just has to spend a few uncomfortable weeks on a thin mattress and then go back to her surreal opulent and spoiled life. Perhaps she can tell her harrowing story in a Barbara Walters exclusive interview.

I will be happy if she just serves out her tiny little sentence. I know that most celebrities will continue to get a different standard of justice than the rest of us. However, I am particularly grateful that this 26-year-old spoiled brat finally had her comeuppance, modest though it may be. She will soon be back living her bubble, but for a few weeks, she will have glimpsed an entirely new world called reality.

 
The Thinker

The Problem with Vengeance

Saddam Hussein has gone to meet his maker. Shortly before dawn this morning, the former Iraqi dictator was hanged. Reputedly, justice was served. Hussein received the same ultimate penalty that he and his henchmen inflicted on reputedly hundreds of thousands of Kurds and Shi’ites during his twenty-five years or so as national dictator and despot. Hussein at least had the benefit of having his guilt established in an open trial. One thing is for sure: Saddam Hussein will not be around to inflict further atrocities.

I certainly understand the need for the survivors of Hussein’s tyranny to see Hussein suffer some small measure of the pain that was inflicted on them and their loved ones. Mesopotamia, after all, gave us Hammurabi, the Babylonian king. Nearly four thousand years ago he invented a form of justice that was still evident in Saddam’s hanging today: an eye for an eye and a tooth for a tooth. Saddam’s hanging of course could not begin to really equal the voluminous misery he inflicted on others. Still, death is the ultimate penalty. Having Saddam spend a couple of years in prison knowing he was going to pay the ultimate penalty was probably a very miserable experience.

The problem is that by hanging Hussein, the justice that was served did nothing to solve the underlying problem. Rather, by hanging Saddam the violence in Baghdad is likely to worsen. Ninety-two people died from violence in Iraq today. A curfew imposed later in the day will hopefully staunch the violence, although most likely the violence will keep recurring until it is fully expressed. Sunnis will feel even more aggrieved by Saddam’s execution. Shi’ites and Kurds will feel even more righteous. If national unification is the goal, it is hard to see how serving this kind of justice, no matter how lawful and fair, will serve Iraq’s national interests.

Real solutions to Iraq’s sectarian problems can only be solved by changing hearts and minds. Saddam’s execution was thus counterproductive toward those ends. All sides will be more inclined to dig in their heels and less inclined to work toward national reconciliation. Imagine if during our Civil War we had captured General Robert E. Lee and had him hung for treason and for ordering the murdering hundreds of thousands of Union soldiers. It is unlikely that the Confederacy would have suddenly felt the desire to sue for peace.

What then does this execution really accomplish? While it does give survivors some feeling of vengeance, I am not persuaded that vengeance as a form of justice will be much of a deterrence. By definition, no sane people would engage in violent crime in the first place. Millenniums pass by and regardless of how lax or strict the execution of our laws is, violence continues at roughly the same levels it always has.

I think that vengeance is like throwing wood onto a fire: it keeps it going. What is needed is something that will douse the fire. What justice for Saddam Hussein would have served both as punishment and have served the interests of the stability of Iraqi society?

In countries like Liberia and South Africa, truth and reconciliation commissions have proved to be effective vehicles for mending societies torn by decades of strife. Such a commission in Iraq could have done much to reduce sectarian tensions by allowing victims to air their grievances. Now that Saddam is dead, those who did not have a chance to formally air those grievances feel in some measure that they were not heard, and consequently justice was not served for them. The Kurds suffered thousands of deaths because of chemical attacks ordered by Saddam Hussein. Their rage, which should have had the opportunity to be expressed in a proper forum, is instead bottled up and unchecked instead. As a result, this rage is likely to cause further destabilization and violence in the future.

I think it would have been better for all parties had Saddam been tried by the International Criminal Court. It was established precisely for these kinds of crimes. By having his crimes adjudicated by an external court, it would have had the pleasant smell of impartiality. Instead, Saddam was tried in an Iraqi court. While the evidence of Saddam’s guilt was clear enough, impartiality was simply not possible. Lacking impartiality, the verdict smelled malodorous. It is true that had the International Criminal Court convicted Saddam Hussein, he would not have been executed. Most likely, he would have lived out the rest of his life in isolation in a prison in some place like The Hague. There, isolated, alone and unempowered, a rough form of justice would have been served in the form of impotence and obscurity.

Too often justice is merely a code word for vengeance. We need to understand that society’s purpose in seeking justice is not to elicit vengeance. Instead, it is to elicit true repentance from the criminal if possible, ensure future behavior does not recur, and to ensure the rest of society is safe from a criminal’s actions. We need justice that does not amount to being Band-Aids on society’s gaping wounds. Instead, we need actions that promote the wound’s healing. Unfortunately, as Saddam’s execution points out, the need for vengeance simply helps ensure that future Saddams will likely reemerge from the toxic environment he left behind. Therefore, the karmic cycle will repeat until someday, perhaps, Iraqis learn the lesson and get it right.

Saint Paul got it right in Romans 12:19-21:

Beloved, never avenge yourselves, but leave room for the wrath of God; for it is written, “Vengeance is mine, I will repay, says the Lord.” No, “if your enemies are hungry, feed them; if they are thirsty, give them something to drink; for by doing this you will heap burning coals on their heads.” Do not be overcome by evil, but overcome evil with good.

 

Switch to our mobile site