Category Archives: Criminal Justice

Losing The Rule Of Law

It isn’t just the loss of due process (yesterday’s lament).

The Bulwark recently published an essay comparing the rule of law to the rule of Trump which is displacing it. You will not be shocked by the article’s conclusion that the two are incompatible. Under the rule of law, for example, certain specified persons are empowered to use force on behalf of the state in specified circumstances against persons engaged in specified activities. The rule of law does authorize state violence, but only under the enumerated circumstances–and other laws restrain government officials from engaging in such activities.

Under the rule of Trump, inevitable conflicts between public safety officials and people with whom they engage become conflicts “between angels and demons.” In Trump’s mind (I use the word “mind” hesitantly), “military police are heroic patriots by virtue of being in his military police.” Criminals are people who anger or cross him, or object to Trump’s will. By definition, they are dangerous insurgents who must be rooted out.

In other words, criminals are whoever Trump says are criminals, including the invented rioters and murderers in his fanciful descriptions of the horrors of life in Blue cities–descriptions so at odds with reality that they confirm his mental derangement.

The New York Times recently interviewed  50 members of the Washington, D.C. legal establishment, men and women who had worked as high-level officials for every president since Ronald Reagan. The group was evenly split between Republicans and Democrats. All of them were appalled.

One former official who served in both Democratic and Republican administrations–including Trump’s first term–was quoted as saying “What’s happening is anathema to everything we’ve ever stood for in the Department of Justice.” There was a near consensus among the officials surveyed “that most of the guardrails inside and outside the Justice Department, which in the past counterbalanced executive power, have all but fallen away.”

The indictment of James Comey, the former F.B.I. director who was charged only after Trump fired the prosecutor who refused to do so and installed a pliant operative in his place, represents a misuse of power that several respondents said they had never expected to see in the United States.

The survey found a “collectively grim state of mind.”

All but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.

And every single one of the 50 respondents believe that Trump and his attorney general, Pam Bondi, have used the Justice Department to go after the president’s political and personal enemies and provide favors to his allies.

At the end of his first term. Trump pressured the Justice department to investigate obviously “fact-free” claims. Bill Barr, who was attorney general at the time, had been a close ally of Trump, arguably subverting DOJ independence on Trump’s behalf in several matters. But when Trump pressured him to pursue allegations that Joe Biden had won the 2020 presidential election because of voter fraud, Barr wrote in his memoir that it was an ask too far, and he resigned rather than give in. Other top officials also threatened to resign rather than use the department in a dishonest effort to overturn the election.

Because of the lawyers in the room, the safeguards held. But if such a scenario were to play out in Trump’s second term, the same result is “unthinkable,” said Peter Keisler, who was an acting attorney general under President George W. Bush.“No one in the room now will say no,” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of “bad ideas” were the wrong kind of lawyers. “The president has set it up so that the people who are there are predisposed to be loyalists who will help him do what he wants.”

The dismantling of the rule of law began immediately after Trump assumed office the second time, with his shocking grant of pardons and commutations to the Jan. 6 rioters. It has continued with innumerable other examples, many of which were enumerated in the Times article.

It was significant that all 50 respondents faulted Congress for doing little or nothing to fulfill its role of restraining the president–and a majority also faulted the rogue Supreme Court. When checks and balances no longer check and balance, autocracy flourishes. 

RIP rule of law…..

Comments

RIP Due Process

During my tenure as a college professor, I taught graduate and undergraduate classes in Law and Public Policy through what I called a “Constitutional lens.” I was convinced–and remain convinced–that policy decisions unconnected or antagonistic to the country’s underlying legal framework are illegitimate, and that the public affairs students who would become police officers, public managers or legislators needed an education grounded in the Constitution and Bill of Rights.

When we came to the 4th and 5th (and 14th) Amendments, the lessons revolved around the purpose and definition of “due process.” I used to introduce that discussion by drawing two circles on the blackboard (or later, the whiteboard..)–one large circle, which I labeled “the 500 pound gorilla” and a much smaller one labeled “the individual.” As I would proceed to explain, due process guarantees were intended to level, to the extent possible, the mismatch between the power of the 500 pound gorilla (the government), and the resources of far less powerful individual citizens–to require the government to prove its right to deprive a citizen of either  liberty or property.

The Fourth Amendment is considered one of the due process Amendments. It requires that the government have probable cause to arrest a citizen. The courts have (until now) defined probable cause as sufficient, reasonable, articulable grounds to believe that a crime has been committed, is being committed, or will be committed, in order to justify an arrest, search, or issuance of a warrant. Hunches or suspicions aren’t sufficient–and until this year, arresting someone solely on the basis of their identity would constitute a clear violation of the Fourth Amendment.

There are three kinds of due process recognized in American jurisprudence: criminal due process, civil due process, and substantive due process. I have written extensively about the current attack on substantive due process, which limits the areas of our lives in which government can properly intervene. When it comes to criminal due process, legal scholars frequently use the phrase “fundamental fairness” to summarize the elements intended to provide an accused person with a fair hearing, including a trial overseen by an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials relied upon by the prosecution, the right to confront and cross-examine adverse witnesses, and the right to appeal an adverse result.

In my undergraduate classes, I sometimes used a tape from an episode of “Star Trek: Deep Space Nine” (yes, I’m a nerd) to introduce due process. In that episode,  Miles O’Brien, the station’s Chief Engineer, is arrested by Cardassians (the series’ aliens) while on a vacation. The Cardassian system is the mirror opposite of ours–O’Brien isn’t told what he was accused of, his lawyer is appointed by the state to “make the case” for his eventual execution (which was scheduled before the trial began), the Judge was also the prosecutor, and so forth. My students would be reliably outraged at the obvious unfairness of that system, and that outrage led to thoughtful and productive discussions about what a truly fair trial would look like and the reasons for the multiple requirements of “due process of law.”

The current, corrupt Supreme Court is allowing the Trump administration to eviscerate those constitutional guarantees. In Noem v. Vasquez, the Court lifted a lower court injunction against patently unconstitutional arrests of people believed to be non-citizens, essentially holding that ‘looking like an immigrant’ can now be considered probable cause for stop, arrest, and detention.

It isn’t just Supreme Court rulings diametrically opposed to years of precedent.

The Prospect, among other sources,  has reported that ICE deliberately uses bureaucratic excuses and location transfers to isolate detainees both from their families and from their lawyers. Only 23 percent of defendants in immigration court even have an attorney in court to represent them. (Unlike in criminal courts, defendants in immigration court aren’t entitled to representation.) But those who do have attorneys are struggling to connect with them. The Prospect report documents the impediments ICE has intentionally constructed to keep these detainees in situations the report describes as “punitive and desperate” and to deprive them of due process.

So here we are. We have a Supreme Court untethered to long-standing constitutional guarantees, and a federal agency committed to denying their indiscriminate targets anything resembling fundamental fairness.

We’ve unleashed the 500-pound gorilla. I’m glad I’m no longer teaching….

Comments

Context Matters

How many times have you told someone you would attend gathering A, or accomodate request B, then been unable to follow through? Perhaps it was due to an illness or family emergency or simply because you’d forgotten about a pre-existing obligation. It’s not uncommon–compliance with previous promises is, unfortunately, contingent upon the continued reasonableness/ability to perform.

When the news broke about President Biden’s pardon of his son, despite earlier statements that no such pardon would be forthcoming, I didn’t realize that the context had changed–dramatically. And even then, to be honest, it didn’t bother me; anyone familiar with the laws governing Hunter Biden’s prosecution can attest to the fact that he faced penalties far more severe than those sought against others in the same circumstances– only because his name was Biden. (As former U.S. Attorney Joyce White Vance made clear in her Civil Discourse, Hunter Biden wouldn’t even have been criminally charged if he had been anyone other than the president’s son). The relentless effort to use him politically to hurt his father was obvious and unfair. So–while a pardon did violate the President’s prior promise not to issue one– I really thought it was appropriate.

And that was before I realized how dramatically the context had changed. As Heather Cox Richardson has explained, 

The pardon’s sweeping scope offers an explanation for why Biden issued it after saying he would not.

Ron Filipkowski of MeidasTouch notes that Biden’s pardon came after Trump’s announcement that he wants to place conspiracy theorist Kash Patel at the head of the Federal Bureau of Investigation (FBI). Filipkowski studies right-wing media and points out that Patel’s many appearances there suggest he is obsessed with Hunter Biden, especially the story of his laptop, which Patel insists shows that Hunter and Joe Biden engaged in crimes with Ukraine and China.

House Oversight Committee chair James Comer (R-KY) spent two years investigating these allegations and turned up nothing—although Republican representative Marjorie Taylor Greene of Georgia used the opportunity to display pictures of Hunter Biden naked on national media—yet Patel insists that the Department of Justice should focus on Hunter Biden as soon as a Trump loyalist is back in charge.

Notably, Trump’s people, including former lawyer Rudy Giuliani and his ally Lev Parnas, spent more than a year trying to promote false testimony against Hunter Biden by their Ukrainian allies. Earlier this year, in the documentary From Russia with Lev, produced by Rachel Maddow, Parnas publicly apologized to Hunter Biden for his role in the scheme.

The victory of Donald Trump and his subsequent unqualified and inappropriate choices for important government positions raised the very real prospect that the FBI and Justice Department might literally fabricate evidence, or collaborate with a foreign government to ‘find’ evidence of a ‘crime,’ with zero accountability–that going forward, those agencies would be used as political weapons rather than legitimate law enforcement mechanisms, and would focus on Hunter Biden, among others.

Richardson pointed out that most media outlets had failed to tell the full story–to provide the context within which a prior promise could not–should not–be kept. Several pundits have asserted that Biden has given Trump license to pardon anyone he wants, evidently forgetting that in his first term, “Trump pardoned his daughter Ivanka’s father-in-law, Charles Kushner, who pleaded guilty to federal charges of tax evasion, campaign finance offenses, and witness tampering and whom Trump has now tapped to become the U.S. ambassador to France.”

Trump also pardoned for various crimes men who were associated with the ties between the 2016 Trump campaign and the Russian operatives working to elect Trump. Those included his former national security advisor Michael Flynn, former campaign manager Paul Manafort, and former allies Roger Stone and Steve Bannon. Those pardons, which suggested Trump was rewarding henchmen, received a fraction of the attention lavished on Biden’s pardon of his son.

In today’s news coverage, the exercise of the presidential pardon—which traditionally gets very little attention—has entirely outweighed the dangerous nominations of an incoming president, which will have profound influence on the American people. This imbalance reflects a longstanding and classic power dynamic in which Republicans set the terms of public debate, excusing their own objectionable behavior while constantly attacking Democrats in a fiery display that attracts media attention but distorts reality.

As Richardson notes, this lack of balance and context do not bode well for journalism during the upcoming administration. The likelihood is that the media will continue to leave the public badly informed–or completely uninformed– about matters that are important for truly understanding modern politics.

Matters like context.

Comments

The Right Kind Of Prosecutor

During my years as a practicing lawyer, I came in contact with several impressive Black lawyers with degrees from prestigious schools. Almost all of them were–like me–practitioners of civil or corporate law, usually with one of the larger law firms. The Blacks I knew who did practice criminal law were all defense lawyers. And it goes without saying (so I’ll say it), during those years, they all encountered considerable discrimination. 

So what made Kamala Harris decide to be a prosecutor? I think that early decision sheds considerable light on her judgement, her capacity to analyze the legal landscape and determine how best to seek justice.

The politics of criminal justice have inured most of us to a lopsided view of a prosecutor’s role. In communities large and small, lawyers have for years run for the office on promises to bring “law and order,” to be “tough on crime” and to “put the bad guys away.” We do want to put bad guys away, but we also want to be sure that the guys we’re putting away are really the bad guys. And even a cursory attention to the news confirms that–in too many places–innocent people have been imprisoned or worse. (Also in too many places, those errors have been the result of prosecutorial misconduct.)

It’s important that a prosecutor be concerned with justice–not simply with a win/loss ratio.

What triggered this observation was a recent article in the Indianapolis Star about the exoneration of a man who’d spent 15 years behind bars for a crime he didn’t commit. The case against Anthony Bedolla had unraveled amid allegations of potential police misconduct and constitutional violations.

A re-examination of Bedolla’s murder conviction raised serious concerns about whether detectives arrested the wrong man, then failed to disclose evidence that someone else may have been the killer. Instead, they relied largely on the testimony of a compromised and unreliable eyewitness, according to Bedolla’s petition for post-conviction relief.

Last week, a Marion County judge granted the petition and dismissed the charges against Bedolla, who had been sentenced to 45 years in prison for the killing.

The lawyers who obtained Bedolla’s release worked for the Notre Dame Exoneration Justice Clinic and the Conviction Integrity Unit of the Marion County Prosecutor’s Office. I have been aware of the existence of that Unit, which was created by Marion County Prosecutor Ryan Mears. to “identify, remedy and prevent wrongful convictions” because my youngest granddaughter has interned with the Unit since her senior year in high school. (She’s now entering her junior year in college.) She will also be participating in the opening and operation of the Indiana affiliate of the national Innocence Project.

As Mirror Indy has reported, the establishment of that affiliate is something of a homecoming for its director, Fran Watson, and “will build on her decades-long career as the director of IU McKinney law school’s Wrongful Conviction Clinic, which was a founding member of the Innocence Network.” As she explained to the Mirror, while innocence work exposes the reality of  wrongful convictions, and the various reasons for them, it was really the science of DNA that made exonerations possible.

Without DNA, no one would ever believe public defender people like me who said they’re innocent. Then DNA comes along, and the math is the math, and the numbers are the numbers, and they don’t lie, you have the wrong man in prison, and you lied to put them there.

My granddaughter was present when Anthony Bedolla was released. She’s passionate about justice, and–at least at this point–intending to go to law school. (And yes, I am one proud grandma.) But the reason I mention her participation is that without it, I would not have had the opportunity to interact with Ryan Mears, who–like Kamala Harris–became a prosecutor for the right reasons.

It was Mears who established the “Integrity Unit” in the Marion County Prosecutors office. Mears is one of an emerging generation of prosecutors who understand that the justice system has two equally important tasks: to put away the people who pose a danger to public safety, and to ensure that the people being incarcerated are, indeed, the people who deserve that punishment– that the real “bad guy” isn’t still free to harm others.

Public respect for the criminal justice system requires attention to both tasks.

Marion County is fortunate to have someone in that office who understands the importance of both of those obligations. And if Kamala Harris becomes President, we will be incredibly fortunate to have a Chief Executive who understood the importance of systemic justice at a time when far fewer of us did.

Comments

Federalism And MAGA Lies

I know it’s hopeless to expect anything approaching logic–or constitutional knowledge– from MAGA conspiracy theorists, but I’ll admit I still get surprised by the sheer fact-free idiocy of some of their anti-Biden accusations. In many cases, that idiocy is an outgrowth of what I call “civic illiteracy”–an obvious lack of knowledge of the most basic structures of American government.

Take the MAGA folks who are screaming over Trump’s New York prosecution and subsequent guilty verdicts. Republican partisans–some of whom, as elected officials, should certainly know better–accuse the Biden administration of “weaponizing” the Department of Justice, claiming that President Biden was responsible for both Alvin Bragg’s decision to charge Trump and for the subsequent jury verdict.

Yeah! As the Lincoln Project recently noted, it’s also Biden’s fault you got that speeding ticket!

Anyone who took a high school government class (and actually passed) should know the difference between federal and state jurisdiction. That difference is part of what we call federalism–and it’s foundational to our legal and governmental systems. As I used to explain to my students, the Founders gave us both horizontal and vertical checks and balances: separation of powers (dividing authority among the branches of government–someone should tell Tommy Tuberville), and federalism (dividing authority between federal, state and local units of government).

Federalism is evidently a concept utterly foreign to a large segment of the voting population. As the Washington Post recently reported, a CBS News-YouGov poll tried to figure out just “how many Americans buy into the baseless idea that Biden had something to do with the charges against Trump in Manhattan.

Turns out, it’s 43 percent — and 80 percent of Republicans. Those are the percentages who agree that the charges were brought because of “directions that came from the Biden administration,” rather than merely by “prosecutors in New York.”…

The article debunked several aspects of the claim, and noted

This theory was also firmly rejected in recent weeks by no less than former Trump lawyer Joe Tacopina, who worked on Trump’s defense early in the Manhattan prosecution. He called the idea “silly” and “ridiculous.”

“Joe Biden or anyone from his Justice Department has absolutely zero to do with the Manhattan district attorney office,” Tacopina said in an MSNBC interview, adding, “We know that’s not the case, and even Trump’s lawyers know that’s not the case.”

“People who say that,” Tacopina told MSNBC, “it’s scary that they really don’t know the law or what they’re talking about.”

By Tacopina’s formulation, 4 in 10 Americans have no idea what they’re talking about.

As the article notes, this is hardly the first time Trump’s base has come to believe nonsense, despite a lack of any evidence–and in spite of the fact that believing it requires total ignorance of the structure of their own government.

Believing that the federal government stage-managed a state-level trial also requires a considerable amount of cognitive dissonance, since the GOP has long insisted on an extreme version of “state’s rights.”

In fact, the Republican Party has never quite gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was initiated after passage of the 14th Amendment constitutionalized the principle that the fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but thanks to nationalization of the Bill of Rights, they are forbidden to retract them. (That’s why the theocrats found it necessary to eliminate reproductive freedom from the liberties protected by the Bill of Rights.)

Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority.  Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–shouldn’t be one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully. Justice Alito’s dismissal of the substantive due process doctrine is-–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

But that step back didn’t merge state and federal justice systems.

Some of the Republicans who champion “states rights” are happy to ignore the whole concept in order to fabricate a ridiculous–albeit comforting– accusation. Others–probably the majority– are just broadcasting their profound ignorance of America’s basic governance structure.

Comments