Consider this an un-book review, as James Stewart never sent me a copy of his new book, Tangled Webs, to review and so I haven’t read it.  Instead, I’m constrained to rely on the review at NPR, at least until  Radley Balko comes out with his own review.

The premise strikes close to home.

Author James B. Stewart asks this question in his new book, Tangled Webs, which describes what Stewart calls a surge of concerted, deliberate lying by people at the top of their fields, like Martha Stewart, Bernie Madoff, I. Lewis “Scooter” Libby and Barry Bonds.

Stewart admits in his book that he can’t prove with statistics how much lying and perjury happens, but instead gathers anecdotal evidence from people like prosecutors who view it as an epidemic to the point where they come into work expecting to be lied to day after day. But whether or not it’s a quantifiable rise, Stewart says the trend of high-profile cases where the defendant ends up charged not for the original crime but for perjury sends a negative message to the U.S. justice system and the rest of the world.

Not that I’m against non-quantifiable “trends” or anything, but one might have thought that Stewart, a former editor at the Wall Street Journal and Pulitzer Prize winner, might have considered the possibility that when people are not charged with an underlying crime, but only for lying, it doesn’t reflect an increase in lying but an increase in prosecuting people for not telling the government what it wants to hear.

One(?) of the disturbing aspects of the book is Stewart’s misunderstanding of perjury, which appears to be used when he’s referring to a 1001 violation, lying to federal officers.  While perjury is a material false statement under oath, Stewart’s anecdotal foundation relies on high profile white collar defendants lying at interviews with agents.  Whereas the former requiring swearing an oath to God, the latter only involves telling law enforcement a different story than they want to hear. 

Stewart spells out his assumptions in this excerpt from the book:

Mounting evidence suggests that the broad public commitment to telling the truth under oath has been breaking down, eroding over recent decades, a trend that has been accelerating in recent years. Because there are no statistics, it’s impossible to know for certain how much lying afflicts the judicial process, and whether it’s worse now than in previous decades. Street criminals have always lied when confronted by law enforcement. But prosecutors have told me repeatedly that a surge of concerted, deliberate lying by a different class of criminal—sophisticated, educated, affluent, and represented in many cases by the best lawyers—threatens to swamp the legal system and undermine the prosecution of white-collar crime. Perjury is committed all too often at the highest levels of business, media, politics, sports, culture—even the legal profession itself—by people celebrated for their achievements, followed avidly by the media, and held up as role models.

This surge of perjury cases at the highest levels of business, politics, media, and culture poses some fundamental questions: Why would people with so much to lose put so much at risk by lying under oath? Whatever they may have done, why would they compound their problems by committing an independent felony, punishable by prison? What were the consequences? And what price are all of us paying for their behavior?

Get the sense that he’s got a few potentially baseless assumptions built into his thesis?

 
What? Me lie?

Then again, by seeking validation from prosecutors, it’s hard to go wrong with baseless assumptions.  Consider:

The author says that after months of negotiations, Karen Seymour, the lead negotiator for the government, called James Comey, the lead prosecutor, saying Stewart’s lawyer, Lawrence Pedowitz, had told her Stewart would accept a deal under which she would plead guilty to one count of making a false statement, with the understanding that she wouldn’t be sent to jail. The prosecutors were enthused that she was ready to admit guilt. But as James Stewart explains in a passage from his book, Martha Stewart soon changed her mind:

Little more than forty-five minutes later, Pedowitz called Seymour again. “Martha won’t do it,” he told her. Seymour’s heart sank. Stewart had decided, according to Pedowitz, that “her business and reputation couldn’t take any admission of guilt.”

The author finds this exchange significant because Martha Stewart wasn’t alleging innocence, but rather said her business couldn’t take a guilty plea. The author argues that like many wealthy people, Stewart just thought the wrongdoing was something she “constitutionally cannot do.”

It never occurs to either Comey (sorry, Jim, but you put your two cents in so you get caught in the mix) or Stewart that Pedowitz’s “explanation” isn’t a reflection of Martha Stewart’s acceptance of guilt, but his best explanation given he couldn’t tell Seymour that the reason Martha wasn’t inclined to take the plea (note that it cannot be assumed that Stewart had actually agreed to cop out, but merely that Pedowitz believed he had a viable deal) was because she hated Seymour more than life itself.  Never confuse rhetoric with reality, as James Stewart conveniently does.

How a handful of anecdotes becomes a “surge of perjury cases” is unclear.  How interviews with agents become perjury is unclear.  What is abundantly clear is that Stewart’s premise is absolutely correct, but he just asked the wrong people the wrong question.

There is indeed a tidal wave of professional lying permeating the legal system, an epidemic of monumental proportions that threatens the integrity of the system at its core.  It’s just not by white collar professionals, but rather the “new professionals,” where lying through one’s teeth aren’t a violation of 1001 or perjury, but put on a pedestal as the finest in law enforcement techniques.

If James B. Stewart wanted to know where the system was breaking down, why respect for honesty in the legal system appears to be ebbing away from his miscreants in Manolos, he need only look at a system that’s grown dependant on deception by the very forces of good that he blindly assumes to be utterly reliable and beyond reproach.  As long as lying by law enforcement remains enshrined as their most useful trick, it’s awfully hard to whine about anyone else not feeling the urge to speak only truth in return.  Welcome to the new professionalism, just a different bunch of professionals than James Stewart had in mind.

Of course, he’s not likely to hear about that problem when he relies on the word of prosecutors to validate his theory.

No doubt about it, habeas corpus is a burden.  Defendants in prison file a ton of them, especially when television goes into summer reruns, in the hope of winning freedom, better food or a decent haircut.  You name the problem and there’s a habe for it.  A real burden.

Two lawprofs, Joseph Hoffman from Indiana and Nancy King from Vanderbilt, write about it in the New York Times :

But habeas is also subject to abuse. State prisoners convicted of non-capital offenses file more than 17,000 habeas corpus petitions in federal court each year. Each petition challenges the constitutionality of some aspect of the prisoner’s conviction or sentence, even though that conviction and sentence already have been affirmed by at least one state court, and sometimes several.

Only a tiny fraction of these habeas petitioners — estimated at less than four-tenths of one percent — obtain any kind of relief, which is usually a new trial, sentencing or appeal, after which they may be sent back to prison.

At such a low percentage of 2254* petitioners (as lawyers call them, after 28 USC §2254), the cost/benefit ratio is absolutely dreadful.

Each petition consumes the scarce resources of both the federal and state governments. Indeed, the never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance. By almost any measure, the use, and abuse, of habeas by convicted state prisoners is a failure, one that could corrode one of the most revered pillars of our legal system.  

What I assume is intended by “one of  the most revered pillars of our legal system” is the finality of conviction. which allows us to wipe off our hands as we walk from the grave feeling pretty good about ourselves.

The lawprofs contend that habe, the great writ, was needed back when state courts ignored the federal constitution, but now that most state judges acknowledge that it applies to them whether they like it or not, habeas petitions are just mulligans for affirmed appeals.

As a result, we no longer need habeas review of routine state criminal cases. One reason the writ is so rarely granted in these cases is that state courts long ago took over the role of reviewing constitutional claims that federal habeas courts once performed.

Imagine all the time that will free up for federal judges, who can not ponder and deliberate about their own federal cases, allowing them to reach Solomonic decisions where before they were constrained to knee-jerk denials.  But it’s not just for the benefit of the judges and their overburdened staff that the lawprofs denounce the nasty writ.  Do it for the children prisoners, they cry.

Worse, the misuse of habeas as one more round of appeal in routine state criminal cases will eventually cheapen habeas’s currency. If habeas is chiefly seen as a way for convicted state prisoners to get federal courts to review countless meritless claims, this will diminish public respect for the writ and leave it vulnerable to broader attacks.

Curtail the writ or it will be vulnerable to attack.  It makes sense if you don’t think about it.  And so, the lawprofs offer their solution.

EXCEPT in capital cases and in cases in which prisoners can produce persuasive evidence of their innocence, the need for finality must trump our pursuit of perfection. If habeas review were truly costless we could review all criminal cases ad infinitum.  But,  in the real world, judicial review eventually must stop. 

That a couple of lawprofs see habes as our inadvertent “pursuit of perfection” is curious.  Most lawyers view them as last ditch effort to avoid outrageous imperfection, but then lawyers may inexplicably not hold the system in as high esteem.

Fiscal watchdog Ted Frank argues at  Point of Law that these scholars are giving away the store.

I would go further than Hoffman and King and restrict the writ to cases of actual innocence; while federal courts are more likely to grant habeas petitions in the capital context, it generally appears that they do so for purposes of protesting capital punishment rather than because capital cases are handled more constitutionally sloppily than run-of-the-mill felonies. If anything, the blizzard of habeas cases in the federal courts hurts the innocent, because it’s harder for their habeas petitions to stand out amongst the mass of frivolous cases.

And like the lawprofs, Ted gets there because of his deep concern for the downtrodden.

Money currently devoted to litigating these thousands of petitions would be better served upgrading the public-defender system.

This outpouring of concern for defendants is really quite overwhelming and endearing.  Who would have thought that the evisceration of the right to habeas corpus would be based on such deep, abiding concern for money the welfare of indigent criminal defendants?  I’m misty eyed.

Clearly, it wasn’t enough when Congress limited habeas petitions to a year after the completion of the state appellate process, still allowing the great unwashed to file at will no matter how frivolous their constitutional claims.  So what if DNA that proved innocence was unearthed 13 months later from the hole where the cops buried it.  Finality trumps perfection, which would make a great platitude to carve above courthouse doorways.

The glaring hole in this proposal, however, is not the obvious, that there’s no way to distinguish the meritorious habe from the frivolous until somebody actually ships it off to the court, someone takes a quick look at it and decides whether it gets filed in the square or round container. No, the glaring hole is that these bored defendant can still file their habeas petitions claiming actual innocence when all they really want is kosher food, still busting the courthouse budget.  It doesn’t solve this serious problem.

To that end, I offer a better solution: Attach a letter to each year, and only allow defendants to file petitions in the year that applies for the first letter of their last name.  I considered using their middle name, but since many poor defendants’ parents couldn’t afford a middle name for their children, this would terribly unfair and violate the equal protection of middle-nameless defendants. 

Not only would this immediately cut down drastically on the number of 2254 petitions filed annually, but it would also have the salutary effect of providing an incentive for defendants to seek sentences of at least 26 years and thereby provide them with a habeas filing window of opportunity.  Problem solved.

* Correction to my original post, which referred to §2255 rather than the correct §2254, which relates to federal habeas corpus proceedings for people in state rather than federal custody.  H/T  Strikelawyer for catching my mistake.

Update:  Some excellent  letters to the editor in reaction to the Op-Ed, including a particularly good one from my buddy, Kuby.

Do the math of mass incarceration: If “only” .4 percent of habeas petitions are granted, with 1.4 million prisoners in state custody, that would yield a wrongful conviction number of 5,600 persons. The low success rate for habeas petitioners is due to legislative changes made in 1996 in a misguided effort to restrict habeas corpus. For a state prisoner to prevail in federal court now, the claimant must show that the state court reviewing the claim was not only wrong, but also violated “clearly established” federal law as determined by the Supreme Court. This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.

Condemning so many to unconstitutional imprisonment is an incalculable human loss. Those who argue that this price must be paid are not the ones who pay it. 

RONALD L. KUBY

As much as the technology chorus overstates the case when they chant that we either adopt the shiny new iToy that comes out or die, there remains a swathe of lawyers who take some sort of perverse pride in refusing to adopt anything that runs on electricity.  Need to know where you’re going? Get a Hagstroms. 

Belying this refusal to even consider learning what’s out there is the Luddite belief that they already know how to do things, and aren’t reliant on somebody else’s app to manage their lives.  For some, it’s the way they’ve always done it, and they’ve done pretty darn good up to now.  For others, it’s the pace of change, too much to bother with and, advertisements to the contrary, it’s not intuitive.  If you’ve managed just fine up to now, why change?

Part of the problem is that the pace of change can be overwhelming, leaving those who aren’t paying attention to the ever-changing cutting edge constantly behind.  It’s not that important to them to spend the time to know, and as one finds oneself behind the times, it’s not important enough to catch up.  They make the decision not to bother, secure in the knowledge that they’ll manage.

But another part of the problem is the smugness of the Luddite, some sort of perverse pride of ignorance.

I see that a lot among my peers, meaning people of a certain age who can well remember the transition from eight track tapes to cassettes.  Some have embraced certain elements of technology, such as a Blackberry, but eschew others.  Some can barely use a computer and are, inexplicably, proud of it.

My gut reaction to the announcement of a Apple product is “so what?”  But I like to know what’s out there and what it can do, if for no other reason than to avoid the shock when the next version appears a week later.  I thought the Flip video camera was a remarkable invention, considering that my first video camera took VHS tapes and weighed about 74 pounds.  Now I hear that Cisco has given them up, smartphone video being too much to compete against.  Of course, I also remember my first cellphone, reminiscent of a World War II walkie-talkie and costing $12 a minute provided you could find a signal. 

To my eye, most of what is touted at the cutting edge of technology means nothing to me.  Few of the very cool apps used in smartphone television commercials fill any need I might conceivably have, and the cool factor of the newest gadget doesn’t make me feel like more of a manly man.  I’ll pass.

However, when a dear friend’s reaction to anything remotely smelling of tech is to say, “pooh, pooh,” ridicule it and remind me that they’ve lived this long without every using anything that required a microprocessor, I cringe.  You sound foolish.  You are foolish.  I understand the resistance, but there’s a point at which reasonably intelligent people take notice of what’s happening around them. 

You can play the Luddite game for fun, but when you really mean it, you refuse to either recognize the utility of technology or distinguish things that will facilitate your life from shiny toys, you become that caricature of the curmudgeon who refuses to accept that life is passing them by. 

The problem is that the pace of change is mind-boggling.  Due to my involvement in the blawgosphere, I learn a fairly good amount about what’s new, and I find it difficult to keep pace or wrap my head around evolving change.  If you haven’t given much thought to tech since the CD came out, it can be impossible to catch up.  And you will spend the rest of your life wondering what the hell everybody else is talking about.

It’s not that I’m suggesting that the iPhone 17 will change your life.  It won’t.  But to deny that changes are happening and remain blissfully ignorant of their existence is no more useful than being the first online at the Apple store when the new iToy comes out.  Use your long-term perspective to distinguish things that will provide meaningful utility to your life, provides a serious benefit for a reasonable cost, and has more than 2 weeks longevity.  There’s a benefit to not feeling the compulsion to be on the cutting edge.

Do not, however, hide your head in the sand and pretend that your ignorance of technology is a virtue.  it’s not.  It’s just ignorance.

A few people sent me emails asking how it was possible, but the email from the Ed. at  Blawg Review put it best: ??? Three questions marks is very serious, with only an exclamation point missing to elevate it to the highest threat level.

Evan Emory pulled what could have been an incredibly funny prank or terribly deceitful conduct when he scammed some first grade teachers into letting him sing to a bunch of kids and record it.  After changing the lyrics to make it appear he sang a dirty song, the nice folks in Ravena, Michigan were miffed.  Really miffed.

Muskegon County District Attorney Tony Tague arrested Emory and charged him with the manufacture of kiddie porn.  Bizarre and outrageous enough to make the New York Times, everybody screamed this was wrong.  Then the other shoe fell.

The guy who didn’t sing explicit songs to elementary school kids gets two months in jail, probation, and must stay 500 feet away from minors when he gets out.

What sort of country are we living in that would impose such a harsh sentence for such a prank?  Before we get too crazy, sputtering about the injustice of it all, consider this detail from the Muskegon News :

Evan Daniel Emory sits in court before pleading no contest to a reduced felony count in Muskegon County 14th Circuit Judge William C. Marietti’s courtroom on  March 14. Under the plea deal, Emory will serve 60 days in jail, two years of probation and 200 hours of community service. He will not have to register as a sex offender.

While in court, Emory’s attorney, Terry Nolan, called the sentence “fitting.” Is it? It’s certainly more fitting than the original charge of child pornography which would have landed Emory in prison for up to 20 years and gotten his name on the sex offender registry. But, is any sentence kind of like sending Anthony Perkins to jail for killing Janet Leigh in the shower? Neither are something that actually happened.

What did happen was that Emory crafted a scheme to involve a bunch of children in his prank.  To ignore this is to enjoy the myopia of punditry, that convenient thing that allows us to opine on only that portion of reality that supports our view.  Neither Evan Emory nor Terry Nolan could afford to be so cavalier as to pretend that he did nothing wrong.

Rather than project my sensibilities on the outcome in response to Ed’s question, I can only offer this: Evan Emory decided to cop a plea.  When you’re the guy staring at a prison sentence if you lose, you have to make a decision.  Emory was entitled to make the decision that was right for him, even if the rest of us would have preferred that he fight the good fight.  That’s how things work in the real world, and no world is more real than that of a defendant in a criminal prosecution.

Sometimes it’s like living on another planet, where the laws of physics don’t apply. Via Heather Morse Milligan at the Legal Watercooler.

Is the Business Card Dead??

In this new age of Twitter and LinkedIn, I’m wondering: Is the business card dead?

When I think about it, I hardly ever carry a business card these days, and, when I do, it’s usually quite purposeful (I’m going to a conference and I need cards to win prizes in the exhibit hall).

Usually, when I meet someone professionally, we pull out our smartphones and connect on LinkedIn, or follow one another on Twitter. And I am not alone in this experience.

I’m sure Heather would never lie about something like this, so it must be true.  She even used two question marks in the title, demonstrating how important the question is.  One mark wouldn’t do.

I carry business cards.  I don’t hand them out to everyone I see, but then, I never did.  I give them to people who ask for them, who need one of my cards for whatever reason.  What has never happened to me, ever, is someone pulling out their smartphones and asking for my twitter name.  Never.

Heather says she’s not alone in her experience, and I’ve no reason to doubt her.  Indeed, she backs up her assertion with such legal luminaries as David Boise Jay Shepherd and Dan Hull Lindsey ‘How I Love Twitter’ Griffith, both of whom apparently also pull out their smartphones so they can connect with their peers.  They just aren’t my peers.

There’s nothing wrong with Heather’s use of tech in lieu of business cards as a means of providing her vital statistics to others, provided her others are similarly beloved of shiny toys.  Hang out with people at the ABA Techshow and expect them to gush over tech.  It makes perfect sense.  But never confuse what pleases a bunch of techies with what works with the rest of the known universe, where the laws of physics still apply.

But my world isn’t Heather’s world;

Twitter, for me, is about identifying people in a crowded room that I want to talk to. I didn’t need to connect with 1000 legal marketing professionals last week … but I easily found the people I needed to meet, and they were usually broadcasting loud and clear via their social networks.

I’ve broadened and deepened relationships I have identified on Twitter, by inviting many of these people into my inner-circle via my personal Facebook.

I use the social media tools available to me to reach out and connect on a daily basis, either personally or professionally. I know to whom I can turn when I need to brainstorm an idea, get a referral, celebrate or commiserate.

She’s standing in the same room as people, and rather than say hello, look them in the eye or shake their hand, she reads their twit.  No need to be in the room at all, when she can broaden and deepen her relationships by inviting these folks into her inner-circle on Facebook.  Like I said, the laws of physics no longer apply.

Picture the day when some great potential client asks you for your business card and instead you pull out your iToy and shove it in his face.  He looks at you like a fruitcake, pondering how he could have been so horribly wrong to seek your telephone number, and takes a few steps backwards before whatever disease that’s affected you becomes airborne.  The real world, the one with regular people who engage in normal communication with other people they presume to be regular, does not live by iPhone.  Maybe someday, but surely not today.

On the other hand, Heather write about a QR code that we can put on our business cards that contains the information an iPhone can suck in.  It could make for an interesting conversation starter, if not a simple way to share info with those for whom tech is a religion.  My next batch of business cards will likely include such a code.  It could be useful, and it’s not likely to hurt.

Therein lies the point of tech, constantly missed by its gurus.  It’s just a tool, something we can adopt if it seems useful and helpful, in doing what we do.  If it makes life easier and serves some useful function, by all means should we make it work for us.  But when we forget that it’s just a tool and start treating it as more important than a firm handshake, a well-polished shoe or a sound legal argument, there’s no amount of technology that will save us from ourselves.

The business card isn’t dead.  Nor is social media, though it’s utility remains an open question.  When I order up my next batch, it will still be on good quality stock with engraved lettering.  It won’t, however, include my twitter name, no matter how many social media ninjas tell me it should. 

The newest scandal about to erupt across New York is ticket fixing.  Seriously, ticket fixing.  The allegations are that a couple dozen officers have been fixing tickets for friends and family.  As if this comes as a surprise, particularly given that tickets are discretionary in the first place. 

From the New York Times.

While the law enforcement official and several lawyers involved in the matter called the wrongdoing relatively minor, the case could have serious implications for the department because of the large number of officers thought to have participated, either by asking for a ticket to be fixed or by doing the actual fixing.

And the accusations will most likely anger countless New Yorkers, some of whom see the specter of quotas behind summonses they receive and whose response to a ticket is generally more straightforward — pay the fine and have points added to their driver’s license.

It’s not that any corruption, even little league stuff like this, is acceptable.  We have every right to expect New York’s bluest to behave themselves, even if they have the ability to make tickets disappear to Aunt Matilda won’t get points on her license.  And getting a free cup of joe and a donut is wrong too.  It really is.

But as scandals go, this one shocks only for it’s triviality in the face of ongoing, systemic problems.  If you’re unfamiliar with these, read Radley Balko, who keeps a running log.  Even the times can’t get too worked up over this.

It is a practice that by all accounts has been around almost as long as the traffic laws: fixing a traffic ticket.

In the annals of small-bore corruption, there are few things more commonplace than a police officer’s making a ticket disappear for a friend or relative. Yet now this curb-level cronyism is threatening to erupt into a New York Police Department scandal.

The cynic might call this a diversionary tactic, something to take our mind and eyes off more serious issues while getting the sense that the police and Bronx DA Rob Johnson are working very hard to clean up their own backyard.  And indeed, it may well be, given how the talk is about grand jury testimony, union officials being integrally involved in this widespread conspiracy.  If somebody is fixing tickets, let the cops pinch them and prosecution them.  It can’t be all that hard to tell when a ticket is written and disappears in the age of computers, not to mention numbered tickets.

Then, of course, there’s professional courtesy, where cops don’t ticket other cops. No mention of any grand jury testimony about drunk cops running down pedestrians getting a free pass.  That must be beyond the scope of the investigation.  They wouldnt want to dilute a decent scandal by tossing in something really serious.

Tom Puccio, defending one of the PBA cops, offered this defense;

“The practice has been in existence probably since the first ticket was issued by the Police Department,” he said. “It cannot be condoned, but on the other hand, it should not be prosecuted.”

How trivial can something be when the argument against it that cops have always been corrupt.  So what? 

Puccio is, of course, absolutely wrong.  Police corruption, at any level, is both wrong and a threat to the integrity of their job.  Given the power and authority placed in their hands, the idea that they can screw with the rules, any rules, emboldens their violation of rules and the harm that follows.  Corruption is a big deal, even if the cops have always been corrupt. 

The problem that goes unspoken here is that there are massive problems, from the stop and frisk program that violates the constitutional rights of hundreds of thousands of New Yorkers every year, to the the abuse of power, physical harm and lies used to justify it and cover it up.  That these big, no huge, problems go unnoticed while the scandal over ticket fixing hits the fan, is what makes this scandal laughable.

There’s much to fix.  Tickets included, but let’s try to fix some of the big stuff before we worry too much about the little stuff.

Ain’t tech grand?

Writing stuff on the internet can bring some interesting reactions.  Some informative, occasionally brilliant, reactions.  Some nasty, ignorant reactions.  Lots of people out there.  Lots of reactions.  My pal, Mirriam Seddiq, has decided that if someone wants to write something nasty, they have to own it.

It was nice back when I didn’t know any better and I just let you have your say, not moderating your comments which were, on occasion, not so kind and frequently, not so clever.  But, I’m sorry, it’s you, not me.  Or maybe it’s me.  But we’re through.  I need a name.  I need to know who you are and someday soon I’ll move to a platform where you will have to put in a valid email address so I will know who you are.

Your advice means nothing to me if I don’t know whether I should take it – are you a high school kind on the debate team, a lawyer who just graduated last year and feels that they should be able to advise the rest of us on how this system and this profession works, or a real live lawyer who has fought in the trenches and has something of substance to say?

Death?  Life without parole?  How about a promise to never do it again and a fine.  From the Texas Tribune :

As part of a settlement, the Texas State Board of Examiners of Psychologists issued a reprimand against Dr. George Denkowski, whose testing methods have been sharply criticized by other psychologists and defense attorneys as unscientific. Denkowksi agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him.

Denkowski was the prosecution version of Dr. Death, testifying against 14 defendants who faced execution, two of whom have since been put to death, by concluding that they were intellectually competent to be killed.  What made Denkowski such a favored witness?

“What Denkowski has been doing is a pretty radical departure,” said Marc J. Tassé, director of the Ohio State University Nisonger Center and an expert in developmental disabilities. “There’s absolutely no scientific basis to his procedure.”

In other words, he just made up his own rules for determining that a defendant was intellectually suited for death, since the Supreme Court’s  Atkins v. Virginia decision held that executing the mentally retarded violated the 8th Amendment’s prohibition of cruel and unusual punishment. 

It’s bad enough that convictions have been, are still being and are likely to continue to be obtained based on widely accepted, and completely unproven, pseudo-science.  But that prosecutors and judges allowed a psychologist to testify such that mentally retarded defendants could be sentenced to death is unfathomable.  Fortunately, not every judge before whom Denkowski appeared was brain dead.

In 2007, state District Judge Mark Ellis concluded in the case of death row inmate Daniel Plata that Denkowski’s methods did not align with accepted psychological practices and ethical guidelines. Ellis threw out the 2005 evaluation Denkowksi conducted, writing that it “must be disregarded due to fatal errors in … administration and scoring.” Plata’s sentence was commuted to life in 2008, and he is now at the Hodge Unit with other developmentally disabled prisoners.

Granted, it may be a stretch to call Denkowski a murderer, despite the fact that his contribution was critical in the deaths of two intellectually incompetent human beings.  After all, Denkowski just did as the prosecution asked of him, another laboring oar on the government’s boat of death.  Why single him out?

The problem raised by Denkowski’s testimony is that it demonstrated a monumental gap in not one, but three, levels of scrutiny.  As a psychologist, his groundless testimony should have caused his own professional policing agency, the Texas State Board of Examiners of Psychologists, to pull his license.  As a witness, the prosecuting attorneys who proffered this charlatan for the purpose of circumventing the Atkins prohibition should have been disbarred.  And as an expert witness, the judges who accepted his qualifications to opine on behalf of the prosecution should have been thrown off the bench.

One might suspect, these being capital cases, that the intense scrutiny to assure that defendants were not wrongfully sentenced to death would prevent this from happening.  Instead, Denkowski testified as a license psychologist on behalf of the prosecution as an expert witness, and two human beings are dead as a result.

If you think Denkowski got away with it too easy, consider what happened to the prosecutors and judges who were similarly complicit in the death sentences of 14, and executions of 2, relying on the testimony of George Denkowski.  And they are still fighting to keep defendants against whom Denkowski testified on death row.

State Sen. Rodney Ellis, D-Houston, chairman of the Innocence Project board and a member of the Criminal Justice Committee, said every case involving Denkowski should be reviewed by the courts. “We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men,” he said, “especially on the word of someone who is no longer permitted to make these kinds of determinations.”

Is it possible that life is so cheap that review of defendants sentenced to death on the word of this charlatan’s can even be in question?  If only they had the opportunity to pay a $5500 fine, like Dr. Denkowski.

H/T Pogo Was Right

I am honored to announce that the foremost collection of fine art amongst American blawgs has just received a gift from the United Kingdom’s premier artist-blawger, CharonQC.

The Social Media Maven pronounces (2010)
Oil on Canvas
Charon

In the Collection of @ScottGreenfield

And it came to pass, when the Maven came down from the mount with the two tables of twitter rules  in Maven’s hand, when he came down from the mount, that Maven wist not that the skin of his face shone while he talked with him. And when @stephenfry and all the children of twitter saw the Maven, behold, the skin of his face shone; and they were afraid to come nigh him.

And the Maven said… I have been a stranger in a strange land…. and I say unto you…whatever you tweet…happens…

I am humbled by M’lud’s generosity.