Monthly Archives: May 2009

Merely Having A Lawyer Isn’t Enough Anymore

The Supreme Court’s decision in Montejo v. Louisiana, piggybacked on its recent decision in Kanas v. Ventris*, makes one point abundantly clear for anyone accused of a crime: The first thing out of your mouth is “I want to speak with my lawyer.” Then shut up.

The Supremes have chosen to go down a strange path, separating the minor detail that a defendant has a lawyer from the invocation of the right to counsel. Jesse Montejo has already appeared before a judge, who properly assigned a lawyer to represent him. Before the lawyer had the chance to meet with his new client, the police swooped in for a chat of their own. As it happens, Jesse spilled his guts.

The rationale for deciding that this was a perfectly fine way for police to interrogate a defendant was spelled out:

Even without Jackson, few badger-ing-induced waivers, if any, would be admitted at trial because the Court has taken substantial other, overlapping measures to exclude them. Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present. 384 U. S., at 474. Under Edwards, once such a defendant “has invoked his [Miranda] right,” interrogation must stop. 451 U. S., at 484. And under Minnick v. Mississippi, 498 U. S. 146, no subsequent interrogation may take place until counsel is present. Id., at 153. These three layers of prophylaxis are sufficient. On the other side of the equation, the principal cost of applying Jackson’s rule is that crimes can go unsolved and criminals unpunished when uncoerced confessions are excluded and when officers are deterred from even trying to obtain confessions. The Court concludes that the Jackson rule does not “pay its way,” United States v. Leon, 468 U. S. 897, 907–908, n. 6, and thus the case should be overruled. Pp. 13–18.

In other words, the right to counsel now falls under the “pay to play” rule, comparing the benefit in the eyes of some robed guys in Washington to defendants with the effectiveness of police getting the bad guy. The Court ruled that defendants have enough rights already, and don’t need this one as well. As with Edwards, one of the worst reasoned decisions ever, the Court baselessly concludes that it’s not a big deal for defendants.

Nothing is a big deal for defendants, unless you happen to be the defendant under interrogation. You can quote me on this.

This trend might be worth a decent parsing if it didn’t sound like a broken record. I’ve explained the problem already when the Court decided Edwards, and the rationale didn’t get any better in the past month. Like it or not (and I don’t), the point is now absolutely, totally, 100% crystal clear: Each and every defendant must personally, individually, loudly and clearly invoke the right to counsel at the first, and every subsequent, opportunity. It doesn’t matter whether this seems wrong when you already have an attorney assigned to represent you. Do it anyway. Just do it.

Officer: We’d like to ask you a few questions.

Defendant: I would like to speak with my attorney.

Officer: It’s no big deal, just a couple of questions to straighten out a few details.

Defendant: I would like to speak with my attorney.

Officer: Look, this will only take a few seconds, and it might even help to clear you so you can go home.

Defendant: I would like to speak with my attorney.

Officer: Sigh.

Just do it. You will thank me later.

* In my original post, I used the case of Edward v. Arizona where Ventris should have been. It was entirely my mistake, and it’s now corrected. Please forgive my brain fart. It happens at my age.

Falwell’s Liberty University Tosses Young Democrats as “Unchristian”

Having already espoused the idea that a religious school has the authority to dictate the conduct of its students to comport with its religious doctrine, no matter how absurd that seems to those who do not share the faith, Jerry Falwell’s Liberty U has taken it to the next level. From Mark Hine, VP of Student Affairs at Liberty U:

I must inform you that the College democrats’ club is no longer going to be recognized as a Liberty University club. We are unable to lend support to a club whose parent organization stands against the moral principles held by Liberty University. I expressed these concerns when we met, earlier in the spring semester.

The Liberty Way states, “It is the duty of every student to respect Liberty’s Statement of Doctrine and Purpose. They may not engage in any activity on or off campus that would compromise the testimony or reputation of the University or cause disruption to Liberty’s Christian learning environment.”

How, you ask, does being a Democrat disrupt the school’s Christian learning environment?

Even though this club may not support the more radical planks of the democratic party, the democratic party is still the parent organization of the club on campus. The Democratic Party Platform is contrary to the mission of LU and to Christian doctrine (supports abortion, federal funding of abortion, advocates repeal of the federal Defense of Marriage Act, promotes the “LGBT” agenda, Hate Crimes, which include sexual orientation and gender identity, socialism, etc). The candidates this club supports uphold the Platform and implement it. The candidates supported are directly contrary to the mission of LU. By using LU or Liberty University and Democrat in the name, the two are associated and the goals of both run in opposite directions.

Well, at least it’s not because they listen to rock & roll music and think it’s acceptable for boys and girls to hold hands.

Now it’s one thing for a religious school to dictate the conduct of its students, but another to dictate their political thought. In a strange way, I can understand why Liberty U has problems with a club within its midst overtly supporting such Falwell travesties as abortion and the “LGBT” agenda. Stuff like that just gives Falwell the heebie-jeebies. But to ban a political club because the parent party supports radical ideas that are contrary to Falwell’s version of life? Has this not gone well beyond any cognizable religious belief and deeply into the realm of political thought, regardless of religion?

The message seems clear: LU isn’t satisfied with controlling the conduct of its students. It wants to own their thoughts, to raise a student body of one political belief, confusing religion with politics and controlling both.

On the other hand, why would anybody who shares any belief similar to those of the Democratic Party chose to go to Liberty University? I mean, could you have made a more bizarre choice of schools?.

So the question ultimately comes down to whether a religiously-premised university should dictate the political beliefs of its students as well as their actions. The answer seems to be that when you buy Jerry Falwell, you get Jerry Falwell. And when it comes to Liberty University, you can either see things his way or get the boot. For anyone who might argue that LU is a legitimate university, this pretty much kills that notion.

Is it wrong for a school to demand that students share an institution’s political beliefs? You betcha. But when you signed up for Jerry Falwell’s Liberty U, didn’t you realize what you were doing?

H/T Lee

My Website Is Worse Than Your Website

Eric Turkewitz at New York Personal Injury Law posts that he hates his website. Turk is one of the guys who gets it. If you’re a PI lawyer, or frankly a civil litigator of any stripe, Turk would be the guy you want to emulate, because he reflects the combination of zealous representation and deep ethical concern that characterizes how a civil litigator attorney should be. And that’s his problem.

It isn’t the style or functionality of my website that I hate, it’s my writing. The site is my electronic brochure and it’s designed so that folks in need of a personal injury attorney can find it and consider retaining my firm. But creating such a website is a real problem. . .

And that’s the hard part, impressing the potential client. Because most of us were not brought up to brag. We’re taught as kids to be modest. Yet on the website we must do the opposite by showing past results and clucking about ourselves, and this does not come naturally.

Turk explains the nuances involved, the conflicting issues confronted, in greater detail. But the bottom line is that our static websites exist to show that we exist. Like Turk, I have one. Like Turk, I absolutely hate mine. Just like Turk.

I don’t think I’ve gone back to look at my website more than twice since it was put up. It embarrasses me. I am ashamed of its blatant self-promotion, and it pains me whenever anybody reminds me of what is said there. I refuse to play the search engine optimization game, the inclusion of language designed to trick search engines into putting my website at the top of the list so that it will be front and center when someone types in “criminal defense lawyer.” I neither seek that sort of clientèle, nor wish to ever be in competition with that crowd of lawyers.

But even without SEO, my website stinks of braggadocio. I tried to think of a way to express my approach toward my work, and fell horribly short. It all sounds so empty and meaningless to me. Every lawyer claims to “really care” about his clients. Every lawyer claims to fight for their rights. I sound no different than everyone else. You couldn’t tell me from the most incompetent fool based on website. Maybe I am the most incompetent fool, You would have no way of knowing.

We live in an era where we occasionally see wretched lawyer ads — and now solicitation by website or blogs. While such lawyers are few and far between, their antics may get broadcast widely in the electronic age, and it sends a powerfully negative message to the public. Those horrid ads, as well as the occasional loopy lawsuit that finds its way to Overlawyered or the local papers where they are often justifiably skewered, helps to create and feed a deep cynicism when it comes to attorneys.

Because of my frequent criticism of lawyer marketing and those who promise wealth and fame if only you pay them to market for you, I’ve intentionally made myself a target for criticism by virtue of having a website myself. While there’s a link on my blawg to it, it is not, as some have argued, to use the blawg for self-promotion, but rather to provide access to some information about the guy who deigns to put his views in writing for others to read. If you don’t know who I am, you have no reason to think that anything I write is worthy of consideration. But I understand how easy it is to jump to the wrong conclusion. My website is a nightmare.

Turk hasn’t figured out a way to exist on the internet while maintaining a comfortable level of dignity. I’ve looked at literally thousands of lawyer websites and have yet to see one that doesn’t make me wince. Most are more professionally done than mine, with far better design and text. If I had an idea of how I would like it to be, perhaps I would pay sufficient attention to have it done more professionally. As of now, I can’t bear to think about it. I haven’t figured out what I could possibly say or write that wouldn’t make me sound like a self-promoting, disingenuous bag of slime. There is no way to explain what I do, and who I am, that rings true and sincere.

Every lawyer needs clients to stay in business. While the types of clients I typically represent don’t come from Google searches, I’ve heard from many other criminal defense lawyers that they do get calls from their websites, and that these calls are how they keep busy and feed their families. I don’t begrudge them a practice and a living. Their websites don’t have to please me. My only concern is my own existence on the internet, and my critical view of my own effort is that it is absolutely awful and an embarrassment.

I’m particularly thankful that Turk takes such an introspective view of his website, because if anybody will figure out how to do this without appearing deceptive, or bragging, or disingenuous, it’s Turk. And when he does, I will learn from him.

Until then, it’s unlikely that I’ll do much of anything to change my website as I just can’t bear to look at it. It’s not me. And yet it unfortunately is. And I am ashamed of it.

So Sotomayor

Early this morning, I twitted that Obama tapped Sonia Sotomayor of the 2d Circuit for the Supreme Court. I may have been the first to twit it. I may not. It’s hard to say. As I’ve not been told that I’ve won a prize by the twitter gods, I don’t care.

So now the usual suspects do the things that usual suspects do.

From Wendy Long at the National Reviews Bench Memos:

Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written. She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.

There you have it. Can we now go back to our regular show? Judge Sotomayor will be confirmed, as she should be, and the rest of the chest-thumping will be quickly filed for use when the next nominee is named. That’s the great part about fill-in-the-blanks opposition statements. They’re reusable!

When You Say No, They Say . . .

Seth Godin has the ability to express things that the rest of us feel but can’t quite put into words. One example is his recent post, entitled “Eternal September,” where he wrote:

The Internet has been stuck in September ever since. Every day, new people show up at your blog, on Facebook, everywhere. Every day it’s a whole new crop that need to figure out what RSS is and how to subscribe. Every day there are people who spam their address book because it feels like a fine thing to do, then learn their lesson and never do it again. There are new people who need to learn the proper etiquette for interacting on your site. Can you imagine if the real world worked this way? If people walking into your store had never been to a store before? If drivers on the highway had never driven on a highway before?

It’s going to be a long time before the medium stabilizes enough for the newbies to catch up, so the only alternative is to accept that it’s always September.

I tried to make this point, but was so inartful that Bobby Fredericks handed me a good whupping to remind me that my effort stunk. This is why I pay close attention to Godin’s advice, where the philosophical underpinnings of dealing with humans traverses the pragmatic demands of defending them. Much as I may not care for marketing, there is much to learn from those who truly understand people.

When Godin explained why it was important to have the guts to say “no”, it raised a red flag.

If you’ve got talent, people want more of you. They ask you for this or that or the other thing. They ask nicely. They will benefit from the insight you can give them.

The choice: You can dissipate your gift by making the people with the loudest requests temporarily happy, or you can change the world by saying ‘no’ often.

Not that I claim possession of any gift, but people ask a lot of me. Emails, telephone calls, letters, comments on the blawg, people want things. A culture of expectation of free legal advice has grown up around the internet, fostered by things like Avvo Answers, where self-promoting lawyers give inapplicable answers to stupid questions at no charge. People need help, and have come to believe that it’s their right to get it. Now. From me. Or you. But from whoever they ask, they expect an answer. Now.

At first blush, Seth’s point seemed like a variation on the old saw, no one will buy the cow if you give the milk away for free. But his point goes further, in that we have only so much time and energy available to do what we do, and do it well, and if we spend it being “nice guys,” it’s not there for us when we need it. Time and energy are scare resources, not to be squandered.

Being a curmudgeon, I’m not inclined to accede to unsolicited demands. Loud people don’t bother me much, and I have little fear of saying “no”. But this does come at a price. Now it should be pointed out that many of these demands come from people who are well outside my normal area of practice, whether geographically or substantively, such that I couldn’t help them even if I was so inclined. Others are people who just have it in their heads that they deserve a free ride. There are a lot of people who feel so entitled.

The demands often come accompanied by lengthy descriptions of their circumstances, whether in writing or verbally, without the slightest thought to the fact that they are giving a stranger an enormous amount of personal, often damaging, information, and expecting a stranger to spend the time to read and digest the story of their life. Try to interrupt them on the phone and get the first whiff of their vehemence, as they inform you that you aren’t giving them the attention they are due. Just shut up and listen, Mr. Lawyer, and I’ll get to my point when I’m damn good and ready.

It’s not the asking that surprises me in the least, but the reaction to hearing the “no” that I find so disturbing. A fairly typical response to “I’m sorry, but I can’t help you,” is

You lawyers are all greedy scum, I hope you all die.

Or some variation of this theme. It’s both curious and upsetting.

I believe that most lawyers who practice criminal defense do so out of a desire to help people. We feel empathy. We understand how the system can destroy lives. We appreciate how you feel. But we cannot be the answer for everyone who asks. It’s not just because some of us do this for a living, but there are far too many of you than there are of me. Even if I was inclined to do so, I couldn’t. Saying “no” is a necessity of self-preservation.

So while Seth Godin is absolutely correct in saying that it is imperative that we have the fortitude to say “no”, and appreciate why need to do so, it comes as a price. For most of us, it hurts to have to turn away anyone in need. We realize that there are many out there who truly need our help, who can’t find the help they need, and who do so not out of a misguided sense of entitlement but out of necessity of their own. We want to help people. It’s what we do.

But we can’t help everyone. It would be great if those who called or wrote understood this, but it’s unlikely that many will care much about our feelings or circumstances. They are too busy thinking about them to worry about us, and that’s understandable given the nature of the problems with which we deal. But you’ve still got to do it. And when you are attacked for it, you need to shrug it off and accept it as part of the job.

The Time To Speak (Update)

One of the most underappreciated skills necessary at trial is the objection. There’s no “objection” class in law school, and as the test by fire of the Socratic method falls from favor, the emphasis is placed on a lawyer’s deeper, more deliberative process in lieu of the ability to jump up at just the right moment and forcefully state one of the most critical words in the lawyer lexicon: Objection.

An example of how critical this skill can be appeared before United States District Judge Kenneth Karas in the trial of Wayne Simoes, the Yonkers cop on trial for slam-dunking Irma Marquez. From the Completely Legal Blog at LoHud, the Journal News, and with one of the more interesting titles, Simoesus Interruptus,

And Judge Kenneth Karas said he was expecting an objection from the prosecution when defense lawyer Andrew Quinn asked video expert Grant Fredericks if he thought Simoes threw or dropped Marquez. Fredericks said he dropped her. Prior to the trial, Karas had ruled that Fredericks wouldn’t be allowed to offer his interpretation of that, just what was happening in each of the 199 frames from the video of the incident .
But the prosecution didn’t object when Quinn asked Fredericks that question. Karas said after the jury left the room today that he expected an objection from the prosecution team of Anna Skotko, Cynthia Dunne, and Benjamin Torrance. But none came. Quinn said he asked because he felt the prosecution had opened the door with its cross-examination of Fredericks. The judge didn’t think so.

They should have seen this coming a mile away. It was so painfully obvious, that there was no point to the defense putting an expert on the stand but for his opinion as to what the video of Simoes dropping Marquez showed. Of course, this is precisely what an expert cannot provide, the ultimate conclusion of the jury.

“I don’t know why you didn’t object,” the judge said to [AUSA ] Skotko.
“It came out of left field,” Skotko said.

The United States Attorneys Office for the Southern District of New York is well regarded. It’s supposed to be one of the best. This is not a bright spot. Let’s assume for the sake of argument that neither Skotko, nor the other two attorneys on her team, had any idea that the defense expert was there to tell the jury that the video showed the exact opposite of what their very own eyes saw when repeatedly watching the video of Simoes playing Hulk Hogan. To do otherwise would be to suggest that the government would sabotage its own case against a police officer, and that could never happen.

The ability to know when to make an objection isn’t a function of preparedness or foresight. The need often comes “from left field,” with either an unexpected line of questioning or a question formed in an unexpected manner. On top of that comes the tactical considerations, such as whether the objection will appear to the jury to be disingenuous, a means of keeping evidence from the jury that is relevant. Regular people believe that lawyers use such technicalities as the rules of evidence to prevent them from knowing the truth. While we know that these “technicalities” have reason behind them, to prevent the jury from hearing unreliable evidence that may taint their understanding, their perceptions may differ.

In a split second, we are called upon to make the decision whether to stand up and object, or sit quietly and let the questioning continue uninterrupted. This doesn’t fall in the “glib” abyss that makes lawprofs shun the Socratic Method, and yet demands a measure of speedy analytical decision-making that can produce a monumental shift in the direction of a trial. Fail to make a critical objection and the evidence comes in, full speed and deadly. There’s no second chance. There’s no “unringing” the bell. It’s in there.

I’ve addressed the tactical use of objections in the past, as well as the conflicts between presentation to a jury versus preservation for appeal. It’s far more art than science, and comes from trial experience combined with a viable sense of how the entirety of the trial is playing before the jury. These considerations, however, were absent from this glaring failure at the Simoes trial. There was no conceivable purpose to not objecting to a witness, an expert whose purpose was suspect from the outset, telling the jury what they see in a videotape. The jury has eyes; the rest is argument.

There is no explanation for the failure to object called “it came out of left field.” The targets of objections regularly come as a surprise. If they didn’t, we would dispose of them in limine. No need to wait until the jury is watching to have the car crash. AUSA Skotka’s explanation falls flat; worse than flat, it is fundamentally unlawyerly. What we do is object to things coming out of left field. If you can’t handle the surprise question, then you have no business sitting at counsel table at trial.

Of course, mistakes happen. No one is entitled to a perfect trial, mostly because there has never been a perfect trial. There are just too many variables, the significance of which is unknown until after the jury returns its verdict. If the verdict is favorable, you made the right decisions. If not, you didn’t, ignoring the fact that even the best trial performance cannot guarantee an outcome. It’s just the measure of sound judgment as viewed from the chair of appellate counsel or judge.

But the failure to object to the testimony of Simoes’ expert doesn’t fall into any tactical pigeonhole. Nor can it be shrugged off as a reasonable mistake. It was a demonstration of critical ineptitude, shocking incompetence. The failure to object was inexcusable.

If we take Skotka’s explanation at face value, that she was surprised by this obvious question, does it reflect an individual prosecutor’s inability to handle a trial? Does it reflect a fall from grace in the Southern District U.S. Attorney’s office? Does it reflect young lawyers coming to the courthouse without having learned the basic skills necessary to try a case?

And if we refuse to believe that any lawyer couldn’t figure out that this was one of those unbelievably glaring moments to stand up and, in a stentorian voice, proclaim “objection”, then what does it reflect?

Update: Via LoHud, apparently there was a pre-trial ruling precluding the defense expert from testifying that the video shows that Simoes did not throw Irma Marquez to the ground, and the government got a second bite at dealing with their screw up:

Yesterday, Judge Kenneth Karas instructed the jury to disregard defense expert Grant Fredericks’ conclusion about Simoes’ actions. Before the trial, Karas had ruled that Fredericks would not be allowed to offer such an opinion. Prosecutors asked the judge after testimony ended Friday to strike Fredericks’ statement from the record.

A special thanks to the Journal News for such a great reporting job. Nothing like getting the details straight the day after. Of course, it didn’t stop defense counsel from trying to push the envelope.

Andrew Quinn, Simoes’ lawyer, accused federal prosecutors of failing to properly investigate the case, building a prosecution solely on a video that wasn’t properly scrutinized by experts.
“We had to do what the government didn’t do in the first place,” he said.

Maybe tomorrow we’ll find out if there was an objection to this portion of the summation, after the judge struck the testimony.

H/T Reader George Cotz

Can 80 Million Slackoisie Be Wrong?

Stephanie West Allen at Idealawg posts about a group, calling themselves 80 Million Strong, with plans to seize control this summer.

Without strong advocates, this generation will continue to be underserved by policy solutions. This cannot remain the status quo. The Student Association for Voter Empowerment (SAVE), Mobilize.org, and the Roosevelt Institution are convening a coalition and summit entitled 80 Million Strong for Young American Jobs, named for the 80 million members of our Millennial generation, each and every one of whom deserves a decent, quality job.

Whenever someone claims that they “deserve” something, it compels the question, why? For all their bravado, it seems that the Slackoisie are terribly un- and underemployed, and they aren’t happy about it. A “decent, quality job” is their birthright. That’s why they deserve one. Each and every one of them.

Stephanie asks a question in return:

And what does the workforce deserve from the Millennials? Am I hearing the one-sided, one-way entitlement demands from them again?

This past week has given us a wealth of insight into what our children have to say. From the WSJ Law Blog to the ABA Journal to the mother-lode, What About Clients?, we have tried to help enlighten those of our youth who have failed to mature sufficiently to grasp why they, for better or worse, will most assuredly get what they “deserve”. Unfortunately, most have reacted in a way that clearly proves the point to their elders, while believing that their responses are brilliant and presuasive.

Does the Slackoisie really believe that they have so much to offer that they are in a position to make demands? Why yes, that’s exactly what they believe.

Let me add my question to the mix: Do we really need 80 million Barristas, each complaining that the tip wasn’t big enough?

Memorial Day 2009

Over the weekend, a brief report was aired on the cable news station that just happened to be on television as I plopped down in my Parisian leather club chair to take a breather about four young Americans who died this week in Iraq. Does anyone in America remember that there are young Americans dying in Iraq anymore?

Our current wars seem like such old news, disinteresting and passé. We’ve elected a new president who wants us out, though we still have Americans on the ground in foreign lands waiting for a seat on the plane home. Some have died. More will die. But we’ve moved on.

Last Memorial day, I wrote:

Before considering what to write, or whether to write at all, about Memorial Day, I took a look at my post from last year. It was a brief post, but made its point:

The catch phrase today is that freedom is not free. But what is this freedom that is worthy fighting, and dying, for? To show our respect for those who gave their lives for freedom, those of us who remain should be willing to stand up for that freedom and defend it. We don’t fight for a particular President. We don’t fight for a political party. We don’t fight for some transitory policy. We fight for enduring freedom. Don’t give up the fight. Take a moment today to think about it. Others have given their lives for it. It’s not much to do.

A year has past, and nothing has changed. Young people are still dying in Iraq, and we’re still listening to people whose lives are not at risk debate about whether and when they can be brought home. We’ve paid the price, but are still watching freedom ebb away.

Is it not heartbreaking to know that another year has past, and yet we’ve accomplished so little? If you have any feelings about the men and women who have suffered and died in the defense of our nation, then consider what we can do to give meaning to their loss. Each of us has an opportunity every day to honor those whose sacrifice dwarfs our own. To honor those who have died in the service of the United States of America, do something to protect and defend our freedom. It won’t kill you.

If nothing else, think of someone other than yourself today.

The Young and the Hapless

The morning after the story broke about how our government saved us from another fiendish terrorist plot, I just happened to be riding the train with a buddy who works as a reporter on TV. We asked each other questions about the news, since we tend to share nagging doubts whenever our government announces how it’s done something wonderful.

From the very outset, it appeared that this was a manufactured crime. Four losers, who couldn’t manage to knock off a liquor store if their lives depended on it, and one prison rat were the players. The rat planned the scheme, gave them the means, and pushed them forward. That’s what it looked like to us. My fear was that nobody, but nobody, would have the guts to call them on it. My buddy had the same fear, with the 6 o’clock report parroting the government’s press release about how they saved us, again, from terrorism.

He was busily typing something into his Crackberrry to his producer, and I said to him, “It’s early. We don’t really know much about this and it’s possible that it wasn’t a total scam. Don’t get too crazy.” After all, he’s mainstream media, but cares too much and thinks too hard to go with the flow.

News reports were gushing praise on the government. Mayor Bloomberg took the lead in praising the arrests, with religious leaders of both stripes fawning over the fine work. As the New York Times told it:

“This latest attempt to attack our freedoms shows that the homeland security threats against New York City are sadly all too real and underscores why we must remain vigilant in our efforts to prevent terrorism,” Mayor Michael R. Bloomberg said in a statement.

The charges against the four men represent some of the most significant allegations of domestic terrorism in some time, and come months into a new presidential administration, as President Obama grapples with the question of how to handle detainees at the Guantánamo Bay camp in Cuba.

Scary stuff. Great work stopping it. Or what? More from the Times :

“It’s hard to envision a more chilling plot,” Assistant U.S. Atty. Eric Snyder said in court Thursday. He described all four suspects as “eager to bring death to Jews.”

Let’s try to imagine a more chilling plot, shall we. How about one where the participants actually came up with the idea on their own, had the means and skills to execute it, didn’t depend on the government to provide it with absolutely everything needed to pull it off, and didn’t do every single act under the auspices of the government and its agent. In other words, this plot was bogus from the word go, with a snitch trying to work off his prison sentence by finding the dumbest mutts around and manufacturing a terrorist plot that never was. The opportunity for politicians to praise themselves was endless. The appreciation of a fearful public was palpable. They saved us again from this “chilling plot.”

Robert Dreyfuss of The Nation ripped the head off this pathetic plot in this post at Alternet.

[I]t’s hard to imagine a stupider, less competent, and less important plot. The four losers were ensnared by a creepy FBI agent who hung around the mosque in upstate New York until he found what he was looking for.

So a creepy thug buttonholes people at a mosque, foaming at the mouth about violence and jihad? This is law enforcement? Just imagine if someone did this at a local church, or some synagogue. And the imam says the people “believed he was a government agent.”

Preying on these losers, none of whom were apparently actual Muslims, the “confidential informant” orchestrated the acquisition of a disabled Stinger missile to shoot down military planes and cooked up a wild scheme about attacking a Jewish center in the Bronx.

The 6 o’clock report on my buddy’s network played it straight, giving the government’s press release full play, falling into lockstep with the rest of the MSM in its reporting on how we foiled this “chilling” terrorist plot. But my buddy wasn’t fooled for a moment. How wonderful that our government is saving us from the terrorist plots it creates. Which of our rights will be sacrificed next to protect us from these homegrown terrorists?

Troy Davis Tests Our Faith

The impending execution of Troy Davis tests our belief that, for better or worse, our criminal justice system has a soul. We may soon find out that it doesn’t.

In the New York Times, Bob Herbert reminds us of what is at stake.

It’s bad enough that we still execute people in the United States. It’s absolutely chilling that we’re willing to do it when we’re not even sure we’ve got the right person in our clutches.

This case tests our love of formality over reality, process over substance. It’s not that Troy Davis has been proven innocent, but that faith in his guilt has been shaken to the core. He may not be guilty. Had this been the case at his trial, one would be compelled to contend that he could not be convicted because guilt was not proven beyond a reasonable doubt.

But as happens too often, the effort to challenge the allegations that Davis murdered Mark Allen MacPhail didn’t start in earnest until after the jury verdict was rendered. At that point, the world turns around and the burden falls on the defendant to prove it wrong. That’s our process, and frankly there’s good reason for the shift in burdens. Jury verdicts must mean something or nothing will ever be resolved and concluded. Closure, both for the benefit of the victim and society, is necessary.

What distinguishes this case isn’t that 7 of 9 witnesses have recanted their testimony that Troy Davis was the shooter. There have been plenty of other cases where witnesses, after the fact, admitted that they lied. Lying on the witness stand is a time-honored tradition on our criminal justice system, which is why we so studiously pretend it doesn’t happen.

The Troy Davis case is distinguished by the fact that, despite the doubt that has been shown, the State of Georgia, the 11th Circuit, the United States Supreme Court, will sit idly by and watch Troy Davis be put to death.

This isn’t just the hand-wringing of someone naturally inclined to give a defendant the benefit of the doubt. There are some others who see things this way whose sympathies are beyond reproach.

An extraordinary group of 27 former judges and prosecutors joined in an amicus brief in support of the petition. Among those who signed on were William Sessions, the former director of the F.B.I.; Larry Thompson, a U.S. attorney general from 2001-2003; the former Congressman Bob Barr, who was the U.S. attorney for the Northern District of Georgia from 1986-1990; and Rudolph Gerber, who was an Arizona trial and court of appeals judge from 1979-2001.

This is one of those instances where a law enforcement or prosecutorial background is important, since a trench lawyer like me, and a liberal columnist like Herbert, are easily dismissed. It’s hard to put William Sessions in the same pigeonhole.

The number of appeals is often raised as evidence that Troy Davis has received more than his share of due process, with each court rejecting his efforts. It’s true that he can’t complain that they shut the courthouse doors on him, and that he’s had many opportunities to present his argument. But this brings little comfort, as these hearings and arguments have fundamentally missed the heart of the issue in Davis. Using time-honored tradition, the one that places the onus on Davis to prove his innocence, he will lose. If he has 100 chances, he will lose 100 times. Post-conviction proof of innocence, in the absence of DNA, is usually impossible, which is why this became a time-honored tradition.

But no one is asking for the court to cut Davis loose, plus send him a letter of apology. That isn’t the point at all. The point is that Troy Davis, given all that is now known and trying our utmost not to entangle our soul in the line of precedent designed to prevent a conviction from being undone, should not be put to death.

Perhaps the thing that people hate most about the law and lawyers is our inflexibility in understanding when technical procedure, which may guide us well the vast majority of the time, fails under a peculiar set of circumstances. People believe that our system of justice has the capacity, at its core, to be just. Not that it happens, necessarily, but that it can happen. Troy Davis takes this belief to its very edge, the logical extreme as we like to argue.

Will we allow a man whose guilt has been placed in doubt to be put to death? Our soul depends on the answer.