on another blog, thought readers over here might like it:
Pretty good stuff if you’re interested in all these alternatives.
on another blog, thought readers over here might like it:
Pretty good stuff if you’re interested in all these alternatives.
Her lawyers tried to withdraw – this week.
Under the circumstances I can’t imagine this was a sound professional move, regardless of how difficult she has been or is being. I’ve been wrong second guessing them before, though, so for now I’m just posting the fact of it. I’ll leave the commentary to others, of which there seems to be an abundant supply.
Apparently there are reports of witnesses being harassed and threatened, and at present there’s a wild and evidently blood thirsty throng outside the courthouse reveling in the idea of killing her. I’d say it was like a culture gone pagan but, you know, some pagans were civilized.
Legally, are we dealing with a denial of due process here? Read Moore v. Dempsey and tell us what you think.
Update: I don’t want to pick on her lawyers, and who knows maybe nothing would have made any difference here because what is going on is not rational. But still, my approach to this would have been so different. I think you have two PD’s here who follow the conventional defense wisdom. The conventional defense wisdom means you lose, because that is what defendants are supposed to do. Often the only question is how badly do you lose.
Having the death penalty hovering out there is a lot of pressure. And in high pressure situations people often revert to their training, which is keep control of your client, keep your distance from your client, don’t get too “personally involved” in the case, whatever that means. In any event, the death sentence is nerve wracking, but it seems to me you have to ignore it. You can get bogged down deciding between this or that tactical move or this or that strategy, or figuring out who benefits from this or who benefits from that.
A long time ago I decided that this kind of approach is too confusing, too speculative as to what would result from it, and beyond that didn’t feel right.
So I more or less begin with: What is the truth here? What is the right thing to do, based on that?
Much simpler generally, though not always.
In any case, once you figure that out all the strategy and tactics fall into place, and you don’t worry – or at least worry as little as you can – about who benefits and who loses, because nobody really knows how it’s all going to pan out beforehand anyway.
You don’t always, or maybe even often, of course, arrive at the exact truth. But you get as close an approximation as you can. Many times you wind up agreeing with the prosecution, and then generally a deal can be struck. That’s just the reality. The system is good on that level.
But sometimes you disagree completely with the prosecution. I think the advantage of the approach I take to these things in that case is that I have a scenario I’m comfortable with, that I believe in, and that I can then go to work very systematically to advance to the maximum extent the system will let me.
I’m guessing that the defense lawyers here subscribe to the standard defense lawyer philosophy that nothing is really true, that even if it is it would be unknowable, that the only things that exist in the system is “evidence” that is in and of itself meaningless unless and until arguments are made about it. And then the most persuasive arguer wins.
This winds up putting arguments over evidence, and instead of letting the evidence tell you where to go, you wind up trying to force an interpretation onto the evidence. Ironically, this is frequently where the police go wrong.
And the judges? Most of them are slaves to power. (Well, maybe not this lady.) When a case is before them where there is a significant power differential - and every criminal case is such a case – most judges are impervious to evidence. It doesn’t matter in the slightest to them.
It would be nice to get back to a system, if we ever had one, where evidence led the considerations in a case and controversy. People are finding out how far we have fallen from that better reality, even as we know that it might never have been as real as it looms now in the imaginations of some of us.
Appreciate all the commenters here.
Apparently, according to a (probably biased, but this seems factual) blogger who was following the trial as it happened, there was a shoe print in blood on the floor, and this evidence was never typed or analyzed or otherwise investigated.
This is yet another indication that no significant investigative work was done once they had their man. It doesn’t matter, they think. We already know who did it.
You can add the shoeprint to four other items of proof I previously identified for believing that someone else was present when TA was killed.
Unfortunately, if that shoe print belonged to a third party that will probably never be proven at this point. Ugh.
Update: I thought I might summarize in this post, in one place, the reasons for believing that someone else may have been involved, and present at the crime scene, and with Jodi Arias in her rental car in the aftermath of the murder, under circumstances suggesting threat or coercion. Let me know if I’ve left anything out. Feel free to comment, of course. That’s what we at Lawyers on Strike are here for, at least this week.
1. The improbability of a lone woman attacking a larger and more powerful man with a knife.
2. The lack of a criminal record or any other fact from JA’s background that would even suggest the capability of such a savage killing.
3. The odd route she took to her next destination after leaving the murder scene.
4. The smell of cigarette smoke in the rental car when it was returned when it appears to be undisputed that Jodi didn’t smoke.
5. There are people who think that a photograph of TA shows a reflection in his eyes of someone else.
6. There is a shoe print in blood at the scene that was never identified.
7. Jodi Arias said for a long time that two others were there and did the killing.
8. Incredibly, with all that the possibility of someone else being there was never investigated by the police, so it’s a completely open question.
Here’s how official New York is dealing with the lawsuit brought by the wrongly convicted five, via Huffington Post:
Meanwhile, the New York City government is actively fighting a $250 million civil suit that the Central Park Five and their family members filed in 2003, accusing the city as well as the individual police officers and prosecutors who worked on the case of violating their civil rights. In September, the city also began waging a legal war with the filmmakers, asking a court to force Burns’ company, Florentine Films, to turn over all notes and outtakes not included in the final documentary for city review, saying it could use the material to defend itself. Earlier this month, city lawyers filed additional documents claiming that Ken Burns and his colleagues are not journalists and therefore aren’t entitled to invoke legal privileges to protect their work product.
Lawyers for Florentine have moved to quash the city’s subpoena on the grounds that they do indeed consider themselves journalists, and that reporters in New York cannot be compelled to share their work product with government officials.
And of course no one is responsible because they were just doing their jobs:
Some of the people involved with the arrests and prosecution of the Central Park Five continue to maintain they did nothing wrong or that the teenagers were, in fact, somehow connected to the crime. A New York Police Department-commissioned review, which was made public in 2003, asserted that the police officers involved did nothing wrong.
The Huffington Post attempted to contact the prosecutors, and police at the center of the Central Park Five convictions. Most did not respond to requests for comment or declined interview requests pointing to the ongoing civil suit. The New York Police Department did not respond to a request for information about the status of the detectives involved in the investigation or interrogations at the center of the case and the vacated convictions. Linda Fairstein, head of the sex crimes unit in the district attorney’s office during the case, left in 2002 to write crime novels that feature a female prosecutor as the heroine. Elizabeth Lederer, the prosecutor who handled the Central Park jogger trials, today leads a unit in the district attorney’s office that investigates labor corruption, and teaches at Columbia University’s Law School. Detective Mike Sheehan, one of the officers involved in securing the teenagers’ confessions, left the police force in 1993 to become a crime reporter for New York television stations. After hitting a police horse and getting fired from his last job, Sheehan began writing and consulting on an NBC crime drama. None of the three responded to requests for comment.
What on earth is the basis to continue to maintain that “…the teenagers were, in fact, somehow connected to the crime?” I mean, besides a pathological desire to evade responsibility?
We talked a little about who, and whether, and how, and to what extent any of these people should be held accountable for what happened in that case. But we can’t even get to that discussion. In a real sense, the crime against the Central Park Five is ongoing, almost a quarter of a century later. We don’t know yet the full extent of what it is that the guilty people should be held accountable for.
You would think that maybe the prosecutors could at least stop stonewalling their victims, or at least answer media questions, but they close ranks just like bad cops protecting each other. But what really irks you is that they’re doing this when they are in the far more powerful position and always have been. This is like a king who wants for nothing stealing a loaf of bread from a poor peasant and then using his royal position to quash the peasant’s plea to get his bread back not to mention silencing and intimidating anyone who takes up the poor peasant’s plight. And where is the media coverage? How dare they ignore this profoundly corrupt abuse of power.
There are no words. It’s unspeakable. I don’t know what we’ve become when we spend so much time and attention on the next frivolity while something like this goes unaddressed. And what saddens me most is that the prosecutors are supposedly lawyers, screened for character and fitness.
Maybe that’s where a lot of problems are. We have no concept of character and fitness.
I hadn’t weighed in on the Amanda Knox matter, not having familiarized myself with it beyond a passing news article here and there. Also because all the Italian procedures are confusing, to say the least, for an American lawyer.
But I did make quite a study of this Italian appeals court decision recently. It’s long, the translation is awkward and it’s not in the least bit light reading anyway, but if you’re so inclined go ahead and read. Plan on spending a couple of hours, though.
Bottom line is, unless there is something wrong to the point of being nefarious going on in that appeals court, I would say it couldn’t be much clearer that there was no case against Knox or her boyfriend (Sollecito), and the “evidence” supporting the prosecution was a classic product of police and prosecutors deciding guilt first and then ’finding’ evidence to confirm their decision, no matter how weak or implausible – or indeed non-existent – the evidence is.
Here are the highlights, in my view, that pretty much dismantle any idea that there was any genuine proof that Knox or her boyfriend were involved:
1. The knife. This was extremely important evidence for the prosecution who argued that a knife found not at the murder scene but at Sollecito’s apartment had Knox’s DNA on the handle and Meredith Kercher’s (the victim’s) DNA on the blade. This would support a conclusion that the knife was the murder weapon and would be very damning to Knox because her DNA was on it and to Sollecito because of where it was found and whose knife it was. Problem is, turns out Meredith Kercher’s DNA was not on the knife at all. That changes everything. Indeed, if that is true there is no reason to believe that it is ‘the knife’ - as in the murder weapon - at all.
2. The bra clasp. The prosecution alleged that Sollecito’s DNA was found on the victim’s bra clasp, and she had been wearing that bra prior to being fatally attacked. Again, very damning evidence if true, it being hard to imagine an innocent reason why Sollecito’s DNA would have been there. The problems? First, the clasp wasn’t collected for over a month, crime scene investigators and maybe lots of others had been all over the scene and for some reason when the clasp was finally collected as evidence it was in a different location from where it was first observed, and there was no explanation for that. On the usual chain of custody type requirements for evidence of this nature, well, let’s just say that on that basis alone this is a massive fail as evidence. And keep in mind that chain of custody requirements are imposed precisely to avoid and/or expose contamination and/or tampering with evidence. The second problem is that even if you didn’t have a massive fail on chain of custody grounds, the appellate court’s independent experts concluded that there was and could have been no valid determination that Sollecito’s DNA was on the clasp anyway.
3. A bloody bare footprint on a mat in the bathroom. The prosecution argued, and the trial court found that this footprint belonged to Sollecito. The other possibility was Rudy Guede, whom everyone pretty much agrees was the murderer, the only question being whether Sollecito and Knox were also there and participating. Now, the truth of the matter is quite simply that standing alone, based on visual inspection and analysis of the footprint, either conclusion is nothing more than a guess. You get your expert I get mine kind of thing. But the real problem is that you have to throw in a few other undisputed facts: first, it is a print of a bare right foot; second that there are shoe prints in blood elsewhere in the crime scene that were initially declared by police and prosecutors to match Sollecito’s shoes but were then later conceded to match Rudy Guede’s shoes; third – and this is crucial – all of these shoe prints were of the left shoe, strongly implying that for some reason Guede’s right shoe was off, which in turn strongly implies that the bare footprint on the mat was from Guede because it’s consistent with everything else that is known and not disputed.
Now, these three things were the cornerstones – the ‘solid proof’ type stuff – of the prosecution’s narrative, the rest of the case being witnesses who claimed to have seen this or that, and questionable assertions of incriminating statements, odd – and in the cop mind therefore incriminating – behavior and whatnot in the aftermath of the crime, and lots of smearing of Knox’s moral character.
In other words, it was the kind of case that any sensible person would think was utterly bogus unless there was some ‘solid proof’ type stuff, and the solid proof type stuff that was in fact offered all turns out to be bogus.
But there is another hard truth here. Bogus though the case was, Amanda Knox will live under a pall of suspicion the rest of her life, involving a lurid and tawdry and indeed excruciating tale that many will believe – and judging from twitter traffic many do believe – even though in the end the tale is nothing but the product of some prosecutors’ fertile and febrile imagination with virtually no reliable evidence to support it.
So that’s my take on the Knox matter, if anyone is interested.
As a brief aside, on the somewhat more topical matter of Jodi Arias I don’t know a lot about it and haven’t followed it besides a passing glance to news reports here and there, but from what I know the jury is out deliberating. With the caveat that I am thus largely ignorant in the matter, I can offer that it’s hard for me to see her escaping criminal liability entirely. There is some evidence supporting pre-meditation but nowhere near enough, I think. There is some evidence consistent with defending herself to some extent, but not to the point where she can justify killing the man after he was already down. I’m not aware of any self-defense or ‘justification’ defense that will countenance a throat slitting coup de grace, which I understand must have occurred even under the defense version of events. The prosecution, from what I read, thinks the coup de grace was administered by gunshot. Either way, I’d be surprised if she was not convicted at least of manslaughter, if not a lesser murder charge.
But the Jodi Arias stuff is not really a firm or well informed opinion of mine, I just thought I’d say something about it since the jury is deliberating and as of this writing I don’t know the verdict.
That’s it? That’s where the paper of record thinks this should all end up?
How forgiving we are prepared to be when the wrongdoer is a prosecutor:
The petition against Ms. Lederer, in part, reduces her life in public service to a single moment, the jogger case. In fact, she has a lengthy résumé of unchallenged convictions in cold cases, having pursued investigations of forgotten crimes. No one lives without error. And designating a single villain completely misses the point and power of the documentary. The jogger case belongs to a historical moment, not any one prosecutor or detective; it grew in the soils of a rancid, angry, fearful time.
Well, I’m not sure either that going after the prosecutor “completely misses the point and power of the documentary” or that it “reduces her life in public service to a single moment” any more than her victims have had their lives reduced to a single moment, the difference being that her victims didn’t do anything wrong whereas she did.
My God this is a curious viewpoint being expressed here. There’s a lot of blame to go around? No doubt:
Politicians called for blood. Donald Trump campaigned for the return of the death penalty. Much of the news media failed to note the vast inconsistencies in the case. Among the skeptics, people like me had mumbled, rather than shouted, our doubts.
Advocates for the accused were undercut by demonstrators who marched outside the courthouse in 1990, and chanted that the attack had been a hoax or that the jogger’s boyfriend had done it. At least two defense lawyers dozed through parts of the trials. At parole hearings, the boys denied having any contact with the jogger, but acknowledged having been in the park that night with a mob that had hassled or hurt others.
Ms. Lederer wrongly told the jury that hair found in the clothing of one of the boys “matched” hair from the victim, a seeming corroboration of the confused, rambling confessions. Even at the time, that overstated the evidence. More than a decade later, DNA tests would show that the hair did not come from the jogger.
Mistakes were made. But not just by Elizabeth Lederer, who is not discussing the matter in public.
So let me get this straight. Ms. Lederer is to be let off the hook so completely that even at this late date she is to be given a pass on even so much as publicly expressing contrition? Really? And until she was recently called out on it in the wake of the Burns documentary, she was still listing the jogger case as one of her big professional accomplishments?
I don’t agree. She can at least apologize for her role in ruining five lives. For Chrissakes.
Beyond that if there are no consequences for her or the media or the other players in the drama, well, truth be told I don’t care. It wouldn’t bother me to see everyone professionally diminished, for example, but it wouldn’t bother me if they aren’t, either. I’ll agree that perhaps the cycle of retribution should be curtailed. As a matter of prudence.
But the five victims have had a lawsuit pending for ten years. The powers that be have apparently stonewalled it. For the love of God that has to stop. Give them all a lot of money. Not a little; a lot. That’s the only thing that can be done – if we’re not going to have retribution, that is – and it provides a measure of accountability as well as a remedy for the harm inflicted, the only kind of remedy that can actually help balance things out a bit.
And before we leave this topic for now, let’s also note that whereas the defense lawyers are faulted for “dozing” during the trial – although I’m sure it wasn’t during any important parts – and even the media, and even the writer, come in for some criticism here, along with the public at large, judges are conspicuously absent from the critique and so are jurors, which merely confirms that a jury is never blamed for a wrongful conviction but are viciously blamed for a ‘wrongful acquittal’, such as OJ Simpson or Casey Anthony.
There’s a long way to go in the examination of conscience that a lot of people should be doing as a result of this case. And the New York Times article demonstrates that most of what went wrong here is so intractably embedded in the players’ subconscious minds that it isn’t going to go well, if it gets done at all.
I’ll say it one last time, though, for emphasis. Pay these guys. And apologize. Now.
h/t Scott Greenfield
An interview with David Graeber over at Naked Capitalism.
He’s talking mainly about economic disincentives to doing good in the world that appear to be a feature of our “capitalist” economy.
I can’t agree with a lot of Graeber’s verbiage – you know, “power structures”, things like that – and like the founding fathers I don’t care much for “democracy” either. In other words, the democracy leaning to anarchy that characterized the Occupy movement and Graeber’s thinking about what to do at this point doesn’t strike me as being much of a solution to anything.
But in terms of identifying what’s wrong now, Graeber and I are in complete agreement. While of course I approach all this from a different and somewhat less scholarly position – more ‘lawyerly’ than scholarly – the basics of the issue are the same for both Graeber and me. In fact, I identified the debt problem – and a solution (updated here) – publicly before his most recent magnum opus (Debt – the First 5,000 Years) came out.
Graeber’s insight that the debt game has altered the role of government (“…which is increasingly becoming the legal cover and muscle behind debt and rent extraction”) is also important, but the solution to that is not so much to turn all of government and society upside down, which is the constant temptation of the revolutionary, but rather a return to first principles by the third branch of government (the judiciary) in general, and the legal profession in particular.
To take just one example, evictions are judicial processes. As I have noted before, they are ridiculously easy to do, not to mention the fastest existing judicial process by far. This is a reflection of a lot of what is wrong, true, but the solution is so simple: change the law.
Do we have to change hearts and minds as well? Certainly, and especially in the legal profession and the judiciary.
The anthropological approach to these issues is academically interesting and has a lot to offer, but it still amazes me how little regard there is for the legal profession and by extension – and somewhat distressingly – the rule of law. The problems Graeber is speaking about fit very neatly – and pretty much entirely – into the ‘law’ category, much more so than the ‘anthropology’ category, but no one talks to lawyers about it.
That’s strange, I think, and maybe even a big part of the underlying problem: a pall of despair over the rule of law and lawyers.
We’ve probably brought it on ourselves.
Now, I don’t know enough about the situation to say for sure, but it certainly sounds like business as usual: the most politically powerless will experience “austerity” first. The only austerity the politically powerful will feel is less body weight when they literally lose their heads. So in the interim, at least someone is making a fuss. And it’s good to see lawyers assuming their proper role in the whole thing.
You would think we might have learned something, in the social sense, since the 18th century, but it appears we’re going down the same road the French did.
Just a thought I’d had recently and figured I might mention to eager readers.
An alibi is traditionally regarded as a very strong defense, so strong that it puts the prosecution at risk of – *gasp* – losing. And it might from time to time.
But it is also an extremely dangerous defense. If it is not ironclad, which is to say completely unassailable, and the prosecution pokes even the smallest hole in it, it completely backfires. Because if the jury rejects the alibi they are going to feel there was an attempt to mislead them by the Defendant, or his lawyer.
And that, of course, is fatal.
And the prosecution doesn’t have to do much to poke a hole in it, either. He’s got credibility advantage, remember.
Be careful out there.
This is true terror: being right when everyone else is wrong, and not only wrong but invested in being wrong.
Echoing Voltaire, Szasz recalled the doctor’s tragic life in an autobiographical sketch in 2004:
“It taught me, at an early age, the lesson that it can be dangerous to be wrong, but, to be right, when society regards the majority’s falsehood as truth, could be fatal. This principle is especially true with respect to false truths that form an important part of an entire society’s belief system. In the past, such basic false truths were religious in nature. In the modern world, they are medical and political in nature.”
In related news, somehow an Illinois man surived thirteen years in prison after having been convicted of a murder he did not commit. Note the compensation he’ll get from Illinois: $175,000.
About $13,000 per year.
Also disturbing: it’s a pretty minor news story. Can anyone explain to me why the Boston bombing of a week ago was so incredibly huge and this story, while covered, is so minor by comparison? It’s not that I think they should be equally prominent, but doesn’t the actual disparity seem wildly disproportionate?
Update: 43 years. Jesus
I don’t know how much more of this is coming. It could go on and on. I think the US Attorney has a point that it can’t just be prosecution after prosecution. Something in the culture has to change.
Maybe we should focus on the courts. Especially the Appellate Divisions, who set the tone, pervasive in the state from top to bottom, that the law just doesn’t matter.
Beyond that, I don’t know whether to laugh or cry when I read this quote from Preet Bharara, though:
“What has been perhaps most disheartening is the deafening silence of the many individuals who over the course of this investigation and other investigations saw something and said nothing. They learned of suspicious and potentially criminal activity being conducted in the halls of the Capitol and elsewhere and they said nothing. Noone made a call. No one blew the whistle. No one sounded the alarm. Rather, too many people looked the other way. And what does it say about the culture and accountability of our system of government when officials are aware of criminal conduct around them and they remain silent?”
Well, Preet, I’ve been noting the same thing, in a very personal and pointed way, for almost a decade and have been met with nothing but the same kind of “deafening silence” - including (maybe especially) from judges, and of course from feds such as yourself. And no one’s protecting me. And I’m not on anyone’s payroll.
It’s a nice speech with the right bromides, but you don’t know what you are asking. If anyone else came to me with a corruption problem wondering what to do about it, how could I in good conscience advise them to “blow the whistle”, given what my family and I have been through? You can’t expect anyone to do anything when the price is so high. Approaching infinite, really, in earthly terms.
In other words, your diatribe might be apt, but it all seems a bit facile to me when you have a powerful office and the resources of the federal government behind you. The people you exhort to “blow the whistle” don’t have that luxury.