At the commencement of the prosecution of Ali Mohamed Ali, the first prosecution of a “pirate” on the high seas in the United States in 100 years, the government “represented” that they had the goods.  Of course, he wasn’t a cool pirate, with a peg leg, a cutlass and a parrot. He was more of a lame pirate with a telephone.

Take the case of Ali Mohamed Ali, who was taken into U.S. custody two years ago when he flew through an airport in Virginia on his way to an educational conference. According to the report,

Mr. Ali is accused of boarding a Danish ship days after it was overtaken by pirates in 2008. Prosecutors say he acted as a go-between; they charged him with aiding and abetting piracy.

Eugene Kontorovich, a law professor at Northwestern University, says that’s a new take on piracy laws dating back to the 1700s.

“This is quite different from ‘attempt,’ where people are trying to actually commit the acts that classically constitute piracy. This is an entirely new theory,” he says, “that subsequent help to piracy, to pirates, makes you a pirate.”

Definitely unsexy. Not even remotely romantic. And, lest anyone forget, the Somali pirates were horrible murderous scum. But the government “represented” that Ali was a pirate, and that under America’s view of its authority as world policeman, it had the authority to prosecute.  And so, from his capture in 2008 until now, he sat awaiting his day in court.

Suddenly, the government’s “representations” aren’t panning out quite as well as expected.  Via the AP :

U.S. District Judge Ellen Huvelle was furious when prosecutors told her at a status hearing last week that the alleged pirate, Ali Mohamed Ali, had been in international waters for only 24 to 28 minutes and they can’t specify how he facilitated piracy during that time.

“It’s astounding to me,” Huvelle told a prosecutor at Friday’s hearing, according to a court transcript. “I have the pleading where they (prosecutors) said this is no problem, you’re going to prove that he was on international waters. I didn’t know that you’d prove it for less than 24 hours.”

It’s similarly astounding that Judge Huvelle was sufficiently willing to just accept the government’s “representations” in the first place.

She said she wanted it “known to whoever reviews this in your office or the Court of Appeals that I feel the government has misled me badly.”

“The criminal law does not exist to go to push something to the outer limits,” Huvelle added. “That’s not what a criminal case is about. You should not be prosecuting a case that you cannot win. It is an outrage.”

It is indeed an outrage, and the question remains whether it was an outrage the court invited by blindly accepting the government’s allegations, wiping her hands and walking away from the grave.

In fairness, this is hardly unusual, as federal judges almost invariably accept the government’s representations as true without hesitation.  After all, these are federal prosecutors, and they would never mislead the court. Never lie. Never make a mistake. Never be wrong. Never.

Ali was charged with conspiracy to commit piracy; piracy under the law of nations; conspiracy to commit hostage taking; and hostage taking. On July 13, Huvelle dismissed the conspiracy to commit piracy count, but Ali still faces up to life in prison if convicted on the remaining counts.

The judge also ruled that for the other piracy count, the government would have to prove that Ali “intentionally facilitated acts of piracy while he was on the high seas” — and not in Somalia’s territorial waters or somewhere else. Last week, the government filed a motion asking her to reconsider that ruling. Prosecutors said Huvelle didn’t have the benefit of United Nations legal experts and independent scholars whom the government said have declared that a U.N. convention on law of the sea is not restricted to a particular “geographic scope.”

Yet Huvelle refused to reconsider,

Huvelle told a prosecutor to “have a seat” as she announced she would not reconsider her ruling.

“This guy has been held on your representations since April 2011; is that correct?” she said. “And now you think that there’s a legal problem. If you had any concern about it, you should have raised it before now.”

While there is always a certain schadenfruede associated with a prosecutor being dressed down by a judge, it happening so rarely as to merit notice and applause, the problems it reveals go far beyond.  In a system which, according to the carvings on the courthouse lintels, relies on adversarial challenge to test the merit of a prosecution, the reality is that “the government says so” is good enough in almost every courthouse in the nation.  The court may well have been misled as to the strength of the government’s case, but what of the judge’s responsibility not to embrace one side so dearly as to do nothing more than stamp “approved” on their  indictment and detention order?

In the New York state courts, a defendant can move to “inspect and dismiss” an indictment for failure to support the indictment. There is no comparable federal motion, the government being so utterly trusted that if accuses a defendant (and let’s not forget that grand juries haven’t panned out as well as theorists hoped), then for the balance of the case it is assumed (though not presumed, as that would be wrong) that the defendant is guilty and will eventually be convicted.

Nobody without a horse in the race ever takes a hard look at whether the government’s case is completely crap.  And the defendant sits in jail, often for years, because nobody figures there is any chance he’s going to win.

This would seem a really good thing for a judge to do, to take that hard look at the government’s case rather than just nod their head in approval at the government utters accusatory words.  If not the judge, then who?

While it’s heartwarming that Judge Huvelle is outraged and astounded by the government’s representations that aren’t borne out by the proof, it would have meant a whole lot more to the defendant if she had been a bit more skeptical two years ago, when a man was held based on nothing more than the government’s “representations.”  While it’s better late than never, it’s even better had the judge come to this realization in the first place.

In a sense, lawyers involved in federal criminal defense know all about it, yet do nothing. It’s not for lack of caring, but because the problem is so huge and intractable, the reality of it so scary, that we block it from our minds. But now that Houston Magistrate Judge Stephen W. Smith has written a Harvard Law & Policy Review article spilling the beans, it can be ignored no longer.

Your smartphone?  Your cloud computing? It’s like handing your information to the government on a silver platter, and you will never know they’ve got it.

By now, many are aware of the secret Foreign Intelligence Security Act (FISA) court, providing for our security from foreign agents (and anybody else who just happens to get named in a FISA warrant).  It functions in secrecy, since you can’t have spies knowing about warrants to catch them.  Scary stuff if abused, right?  Not really, as it’s the ugly stepsister of secret court proceedings. No need to go anywhere near FISA, as it turns out, because there is a far easier way to do the dirty in America without anyone ever knowing.

But the FISA court is not number one in the secrecy parade, not by a long shot. According to a recent study by the Federal Judicial Center, there is another federal docket that handles tens of thousands of secret cases every year.3 That docket is presided over by federal magistrate judges in United States district courts around the country. Most of its sealed cases are classified as “warrant-type applications,” a category that includes not only routine search warrants but also various forms of electronic surveillance, such as the monitoring of electronic communications and data transmitted by the cell phones, personal computers, and other digital devices that now dominate our everyday lives. This type of electronic surveillance is regulated principally by the Electronic Communications Privacy Act of 1986 (ECPA).

Some temporary secrecy is surely warranted — to make sure that suspects are not tipped off, that evidence is not destroyed and that investigations are not disrupted.

“The problem is that these surveillance orders remain secret long after the criminal investigations come to an end,” Judge Smith wrote. Unless criminal charges are filed, he went on, “law-abiding citizens will never know that the government has accessed their e-mails, text messages, Twitter accounts or cellphone records.”

For his part, Judge Smith has proposed some modest fixes. At some point, people whose records have been inspected should be told. At some point, secret court orders should be unsealed. Comprehensive data should be collected, he wrote, to “allow the press and public to better understand the extent of government intrusion into our digital lives.”

Magistrate Judge Stephen Smith argues that everyone who is the subject of an electronic surveillance order ordinarily should receive notice as well as a right to challenge and appeal any ongoing surveillance order that targets them. As best I can understand Smith’s proposal, the government would not only have to get a court order to take any surveillance steps, but every surveillance step would be ordinarily followed by notice and an opportunity for immediate and full litigation of the legality of the surveillance through at least the Court of Appeals and presumably also the Supreme Court.

The default of notice and opportunity to litigate a court order seems inconsistent with the court order requirement itself: If the point of the court order is to add an ex ante check, presumably the statutory requirement and review by the judge achieves that goal. And while I can see encouraging litigation when the investigation is done — more on this in a minute — tipping off suspects and giving them a way to slow down or stop court-ordered surveillance as the investigation is ongoing would make surveillance too costly and ineffective.

In a 2003 article in the Hastings Law Journal, I argued that the solution is to create a statutory suppression remedy for the electronic surveillance statutes. A statutory surveillance remedy would shine a line on the surveillance practices by encouraging defendants to litigate the surveillance statutes just as they do Fourth Amendment issues. That way criminal defendants can litigate the lawfulness of surveillance orders ex post with real facts and real stakes, leading to the needed precedents on the proper interpretation of the surveillance laws.

In a few hours (and likely by the time you read this), the predicted “corrective and punitive measures” against Penn State will be known, and discussion will focus on whether the NCAA’s actions are right or wrong, too harsh or too lenient, fair or unfair.  This post is directed elsewhere, no matter what measures are ultimately imposed.

What about the children?

Not the children abused by Jerry Sandusky. Not the children ignored by Joe Paterno. Not that they aren’t of deep concern, but the crimes committed against them will be addressed otherwise. This is about a football program gone horribly awry by a misguided dedication on the part of adults who were supposed to grasp their obligations to children but instead loved their sport and school too much.

The children I’m talking about are the students of Penn State.  The problem is that any NCAA action against the school will necessarily have collateral damage, the students.  It’s easy to forget that the core of the NCAA’s mission, as well as Penn State’s, is to oversee the education of college students, one relating to their athletics and the other to the totality of their education.

The speculation at the moment is that the NCAA will ban Penn State from post-season bowl games and levy a substantial financial penalty on the school.  They will cut the number of scholarships the school can offer, thus putting Penn State at further recruiting disadvantage. The word is that Penn State football players will be allowed to transfer, so that other schools can rush in a cherry pick the team.  Whether this is how it plays out will be known soon enough, but what of the collateral damage?

Who will pay for the financial penalties imposed?  Ultimately, the students. Whether via tuition or from other sources like alumni donations, the funds that will pay the penalty are funds that would otherwise be used for students.  The penalties won’t be taken from Joe Pa’s estate, or the salaries of administrators. 

Who will suffer for the lack of scholarships, but students who hope to go to Penn State on a free ride. That they could go elsewhere isn’t the point or necessarily the solution. Some come from communities close to the school and want to be able to see their parents on weekends. Some have dreamed of being a Nittany Lion their whole lives. Some want to go to Penn State because it offers a program in a field of study they sincerely desire to learn. What about these students?

The bowl game penalty is less of a problem, but not without concerns. Universities thrive on spirit, which brings in alumni donations, student applications and a sense of belonging and pride.  Granted, these same things may well have driven the outrageous decisions to ignore terrible crimes, but they are also part of the soul of the rest of the student body who did nothing wrong and made no such outrageous decisions.  It would be one thing to rip the heart out of administrators who forgot why they were there, but the NCAA will rip the heart out of students who had no say in the matter.

And while the stars may be scooped up by other Universities who will offer them sweet deals to play in another school’s colors, not every player is a star.  Some may not develop until they get a bit of seasoning, when NFL dreams may become possible. Some may be really good players, but not good enough to get an offer. They came to Penn State with one understanding, that they would have a chance to play in the big leagues, and now they’re stuck. They can transfer on their own, and walk away from friends and roomates, girlfriends and mentors, or they can stay for the education while giving away another dream they thought they had achieved.

The sense that the NCAA lost control of Penn State’s zeal to win football games at the cost of children sexually abused by Jerry Sandusky is clearly a matter of concern. In the grand scheme of wrongs, what Sandusky did trumps anything the NCAA can do. But then, they aren’t on the same plane, and it’s not a zero sum game. 

That Sandusky’s crimes were horrible, and the administration’s decision to conceal it, to fail to deal with it, to allow children to be abused rather than risk damage to their beloved football team, doesn’t mean that more harm has to be done to the innocent students of Penn State.

So what should the NCAA do about Penn State?  I have no answer.  There is certainly a message that must be sent to every college and university, every coach and administrator, that putting their team ahead of their duty to protect children is intolerable.  And yet, the NCAA must simultaneously temper its message by not compounding the problem by collateral damage to the innocent students of Penn State.

A scalpel is better than a bludgeon.  A fully conceived solution will do no harm to those who don’t deserve to suffer the punishment along with those who do.  Remember, the students at Penn State who had nothing to do with this fiasco are children too.

There are some stories that involve too many interesting elements to ignore, but have too many loose ends to make sense of.  Like Savannah Dietrich’s story, a real oddball scenario in that the very reason for the story having arisen is why not enough is known to make sense of it. Yet, it’s too compelling to ignore.

From the Louisville Courier-Journal.

Dietrich said she was sexually assaulted by two teen boys she knew in August 2011. She had been drinking at a gathering, she said, and became unconscious. Months later she learned that pictures of the incident had been taken and shared with others.

“For months, I cried myself to sleep. I couldn’t go out in public places,” she told the newspaper, as her father, Michael, and attorneys sat nearby. “You just sit there and wonder, who saw (the pictures), who knows?”

The boys were identified and prosecuted as juveniles in Kentucky, which maintains the confidentiality of juvenile defendants.  Eventually, a plea was cut, which angered Dietrich, who felt it was a “slap on the wrist.” There is no information on the deal.  Apparently, she learned of the deal at the last minute, perhaps in court as it was taken. 

Again, the information is sketchy, but suggests that Dietrich was in the courtroom, even though it was closed, and admonished by Judge Dee McDonald, whether specifically or merely as one of those present in the room, not to speak of the proceedings or the crime.  Was it an order? A direction? Was there a written order?  What exactly was the order? Was it at the request of any party or an off-hand comment by the judge? The questions are unanswered, largely because those involved were told not to speak of it.

Regardless, it appears that Dietrich understood the judge to have ordered her not to speak of the crime against her.  Dietrich, an angry 17-year-old with an itchy twitter finger, decided to have none of it.

Frustrated by what she felt was a lenient plea bargain for two teens who pleaded guilty to sexually assaulting her and circulating pictures of the incident, a Louisville 17-year-old lashed out on Twitter.

“There you go, lock me up,” Savannah Dietrich tweeted, as she named the boys who she said sexually assaulted her. “I’m not protecting anyone that made my life a living Hell.”

And so the stage is set.

Attorneys for the two defendants have moved for contempt against Dietrich for having violated the court’s gag order, if that’s what it was.  While the deal has been cut, the boys have no yet been sentenced and it’s still within the court’s power to reject the deal, which Dietrich believes to be too lenient.  The maximum penalty for contempt is 180 days in jail and a $500 fine, but then there’s no mandatory minimum penalty.

In an interview with the newspaper, Dietrich argues that this impairs her right to free speech.

So many of my rights have been taken away by these boys,” said Dietrich,…

“I’m at the point, that if I have to go to jail for my rights, I will do it,” she said. “If they really feel it’s necessary to throw me in jail for talking about what happened to me … as opposed to throwing these boys in jail for what they did to me, then I don’t understand justice.”

Of course, her framing of the issue ignores that the “appropriate” means of asserting her right to speak about what she knew from the commission of the offense, rather than the court proceeding, was to move to lift the gag order rather than plow forward in defiance of it.  Then again, angry 17-year-olds with twitter accounts don’t always concern themselves with the legally preferred method.

At Volokh Conspiracy, Eugene Volokh opines that the gag order is overbroad, extending beyond information obtained through the proceedings to knowledge Dietrich possessed from the crime.  He notes, however, that even if the order was unconstitutional, it does not forgive a violation.  The solution is to challenge the order, not ignore it.

What strikes me as problematic is how Judge McDonald has jurisdiction over Savannah Dietrich.  If she was there by subpoena, she would be subject to the court’s jurisdiction by process. If she was called as a witness, she would submit to the court’s jurisdiction. But as far as can be told from the story, she was just there. 

Perhaps there is a statutory right for the victim to be present in the otherwise closed proceedings, and by availing herself of that right, she submits to the jurisdiction of the court. Or perhaps it’s just the way they do things down there. It’s not clear.

Does Dietrich’s being in the courtroom, or within earshot of the judge, subject her to the order?  While a judge has an inherent power to maintain decorum in the room, the power doesn’t extend to mere observers outside the courtroom.  Judge McDonald could direct those in the courtroom to remain silent during proceedings, but could she order them to remain silent after they left. Or the following day. Or a week from Tuesday.

That the court issued a gag order in juvenile proceedings, even when the underlying offense is of the sort that gets most people’s blood boiling, is sound policy.  The protection of the identities of underage defendants is a critical aspect of the scheme of juvenile prosecution, so that children aren’t saddled into adulthood with the consequences of their crimes. 

At the same time, it’s hard to imagine that a 17-year-old, who may not have shown the discretion one would expect of a lawyer, should be subject to punishment on top of having been subject to the offense.  It’s quite the conundrum, which may ultimately be best ended by a judge who offers Dietrich some sound advice not to do it again, and then sends her on her way.

But the final question is whether the raising of this issue impairs the judge’s ability to oversee the plea deal for the two defendants. Now the Dietrich has made the case public, and inflamed passions about the underlying offense and her being stifled when many people support her vigilante twits, the court is placed in a very awkward position in determining whether to accept the plea deal Dietrich says is a “slap on the wrist.”

The good news is that this scenario is, at least for now, a huge outlier. The bad news is that if Dietrich’s actions turn out impacting the court’s decision to reject the plea, it could become commonplace in juvenile cases and undermine the sound policy of confidentiality.  Then again, what about Dietrich’s right as a victim to speak out about the deal cut?  Must she suffer in silence?  What a mess.

H/T  Radley Balko and  Gideon Strumpet, whose twitting about the story helped to frame the problems and raise the conflicting concerns.

Update:  It seems that Kentucky is somewhat renown for its  strict confidentiality of juvenile proceedings:

Kentucky shrouds its juvenile courts behind some of the strictest secrecy laws in the nation, requiring the public to accept on faith that it is being protected from dangerous children — and that innocent children are being protected from dangerous adults.

It is one of only 15 states that bar the public and press from all delinquency proceedings.

The cloak of confidentiality is designed to protect juvenile offenders from being stigmatized, and to ease their transition into the community.

David Mejia, an attorney for one of the teens, said now that the Louisville teen’s story has gone global because of a Courier-Journal article on Saturday there was no reason to continue the contempt motion.

“What could contempt do now?” Mejia said in an interview, adding that the boys names have already been circulated far beyond the original tweet. “Seems like a rather useless exercise doesn’t it?

Given that the article didn’t name the defendants, this excuse appears rather lame. Might it have more to do with the viral reaction to the story?  Certainly, that isn’t going to do much to restore respect for court orders or the confidentiality of juvenile defendants.

In  yesterday’s post about the absurd media speculation and dissemination of factoids and commentary without (as yet) any clear connection to reality about James Holmes, the Aurora Shooter, I segued into a criticism of Doug Berman’s post expressing his “gut reaction” that the death penalty brought him comfort.

The distinction between other cries for death, such as that of  Bill Otis throughout the comments to Berman’s post, and Doug’s is that Otis never met a miscreant he didn’t think should die (yes, hyperbole, but it makes the point), while Berman is the Robert J. Watkins/Procter & Gamble  Professor of Law at Moritz College of Law at The Ohio State University, and has positioned his scholarship to be a leading academic on the issue of sentencing. 

As such, he has attained a significant level of credibility on sentencing matters. In other words, his thoughts on sentencing are taken seriously. Maybe too seriously, but having chosen to stake out his ground, he carries the burdens that go with it.

Recognizing that his embrace of the death penalty was perhaps (and certainly in my view) premature, Doug sought to clarify :

Not surprisingly, my first post about the horrific mass murder in Colorado this past week has generate lots and lots of strong comments from all sorts of perspectives.  I do not wish to respond or even engage with all the commentary (which, helpfully, has been at list a bit more respectful and measured than sometimes happens in some comment threads here), but I do want to encourage a bit more precision in how people understand my first-cut reaction and also in how they discussion this case.  I do so by using what I consider an important (and too rarely stressed) distinction between offense conduct and offender characteristics in the assessment of crimes and punishments.

And though we still are learning more about the offense, we already know enough to make some basic first-cut informed judgments about the  offense conduct.

Meanwhile, I suspect all would also agree that, short of some conclusive, comprehensive report about the shooter’s life history and mental issues, the  offender characteristics  surrounding the Batman mass murderer is going to take a long time to better understand and assess.

Finally, I suspect all would agree that fair and fitting and effective punishments must give some weight to both offense conduct and offender characteristics.  But there is great disagreement as to how much weight to give to these factors AND whether and when some factors can and should overwhelm others.  Putting all this together, it is not at all surprising that some are eager to reach first-cut punishment assessments based on the Batman mass murder offense conduct, while others are eager to resist any such assessments based on the shooter’s mostly unknown offender characteristics.

In the immediate aftermath of these sorts of horrific mass killings, I find it so very hard to react with my head without also listening to my heart.  And in these kind of awful cases, my heart (or is it my gut) often suggests to me that ultimate punishment of death is the only one which feels fitting.  I suspect Colorado prosecutors (and perhaps also federal prosecutors) will have similar feelings.

Aside: And I submit that this duty carries over from the content of a post to the content of comments, whether by lawyers, non-lawyers or people who purport to offer “legal advice” or commentary but don’t appear to have any qualifications to do so. Readers can be easily misled into thinking that comments at a blawg are sufficiently reliable to act upon, to their enormous detriment. Too many blawgers absolve themselves of responsibility for ignorance spewed in comments to their posts.

The story is old. A tragedy occurs. The media is on its like flies on shit. Morbid fascination grips the public, and there is air time to fill.  And so the calls are made.

Is it gun control?  Is it medical school? Is it drugs? Prescription or illegal? Is he insane? Is there a tumor in his brain pressing against whatever bit stops other people from mass murder?

The media has at least one, though more likely a team, of anchors and reporters with a laundry list of questions based upon whatever agenda pops into someone’s mind when faced with a tragedy about which they know nothing.  And if they have questions, they need a warm body to pretend to give answers, even though the questions already fully incorporate the answers within them. Still, a grunt or nod from some outsider with an exaggerated title makes it official.

As if anybody has a clue.

That we want to know what happened and, as if it changes anything, why, comes as no surprise.  The shooting of 70, murder of 12 at this moment, is without question a crime of horrible magnitude.  The senselessness of such a crime, the nature of such tragedy, gives rise to our need to know, to put it into some context that will allow us to feel for those who are dead and wounded, for their families, while separating it from our own world. 

That journalists have a duty to report is fully understandable.  But the reporting ends where the facts run dry.  The 24/7 news cycle doesn’t mean that there is information sufficient to fill the available time, or commentary about the information that illuminates anything.  The story is raw. The known facts are limited.  And yet, media abhors a vacuum.

Eventually, we may know what drove the Aurora shooter, James Holmes, to do what he did. Maybe. Maybe enough information can be pieced together to present at least a reasonable guess. Maybe we will never know what really went on in his head.

Take note of every name of every person providing commentary about this tragedy today. Later on, you can pick whether they are a fool, a liar or a media whore. What they cannot be, by definition, is credible, as there is nothing to be credible about.  And yet they not only talk, but having willingly put on their TV finest and traveled to the studio to seize the opportunity to get their face on the telly.

They make everyone who hears their voice stupider. They don’t care.

Not only are lawyers not immune from this folly, but detached, educated, thoughtful professionals that we are, we lead the assault on intelligence when an opportunity like this comes along.  It’s hardly shocking that lawyers flock toward the klieg lights, for it’s a well-established fact that being ever-ready to comment leads toward fabulous wealth and prestige, but that they succumb to the same delusional belief that they may actually have a basis to belief the pap they spout in the process.

Which makes  this reaction all the more disturbing:

Though I am sure hard-core death penalty abolitionists feel differently, I cannot help but find some comfort in the fact that the state which just experienced the worst mass shooting in US history still has capital punishment.  

*  *  *

In the immediate aftermath of these sorts of horrific mass killings, I find it so very hard to react with my head without also listening to my heart.  And in these kind of awful cases, my heart (or is it my gut) often suggests to me that ultimate punishment of death is the only one which feels fitting.

A society unable or unwilling to recognize this man as having earned a trip out of this world is a society that no longer cares about the basic rules of civilized life (or its own safety, for that matter).

While the Supreme Court held that a state could not put a retarded person to death in Atkins v. Virginia, modesty, deference and an inexplicable reluctance to fully deal with the problem left a hole big enough to drive a redneck’s pickup through.  And so the Georgia Supreme Court did when it came time to decide whether Warren Hill should be executed.

Hill, who is nobody’s poster boy for innocence, received the death penalty for killing a fellow inmate while imprisoned for killing his girlfriend.  He’s also clinically retarded, meaning that he has an IQ of 70, and nobody disputes it.  But in Georgia, that’s not good enough to prove retardation.

As described by  Andrew Cohen in his Atlantic article describing the executions scheduled for the week ahead (no reason to read the part about Yokamon Hearn, as he was executed last Wednesday), Hill just wasn’t retarded enough:

An extensive evidentiary hearing was held. Even the state agreed that Hill met the “IQ criterion for the diagnosis of mental retardation.” Where the parties diverged, however, was on the issue of whether Hill’s cognitive failings were accompanied by what law and science call “impairments in adaptive functioning.”

But the court noted instead that Hill had exhibited a “consistent work ethic” and had “managed well enough, in a ‘functionally academic manner’ to handle financial transactions … while simultaneously sending monies to his family and contemporaneously maintaining his personal needs.” Hill even passed a military entrance exam. The court ruled that while Hill was demonstrably retarded, he had nonetheless not proven beyond a reasonable doubt that he was retarded enough to avoid execution. 

The distinction comes from a peculiarity in Georgia’s burden of proof, where the defendant is required to not only prove he’s retarded, but to do so beyond a reasonable doubt.  While Warren Hill was unquestionably retarded, it was merely by a preponderance of the evidence.  Close, but not good enough.

Georgia is the only state in the nation which requires the “reasonable doubt” standard in these cases — and the state supreme court proudly defended its standard. The majority wrote:

In view of the lack of national consensus as to which mentally impaired persons are constitutionally entitled to an exemption from death sentences, we conclude that the Georgia General Assembly, the first legislative body to create such an exemption, was originally and now remains within constitutional bounds in establishing a procedure for considering alleged mental retardation that limits the exemption to those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt.

What this means isn’t exactly clear. How exactly does a person prove that he’s retarded beyond a reasonable doubt when the criterion is so wiggly as to suggest that anything less than constant drooling opens the possibility that maybe he’s not that retarded? No matter, as the Georgia Supreme Court concluded. It’s Hill’s problem to solve, even though nobody really doubts that he’s retarded.  From the 4-3 dissent:

Despite the federal ban on executing the mentally retarded, Georgia’s statute, and the majority decision upholding it, do not prohibit the state from executing mentally retarded people. To the contrary, the State may still execute people who are in all probability mentally retarded. The State may execute people who are more than likely mentally retarded. The State may even execute people who are almost certainly mentally retarded. Only if a mentally retarded person succeeds in proving their retardation beyond a reasonable doubt will his or her execution be halted.

One might wonder how exactly the theory behind the Rule of Lenity, that statutory ambiguity is resolved in favor of the defendant, since the Georgia statute shifting the burden to the defendant to prove retardation beyond a reasonable doubt suffers from the same infirmity as the burden at trial. It’s a really cool sounding standard, but so vague and ephemeral as to allow whatever outcome a person wants in even a moderately close case.  Essentially, the ability to walk without tripping seems sufficient to find a prisoner death-ready.

Granted, Hill’s crimes (like Hearn’s before him) aren’t likely to make proponents of the death penalty feel particularly badly about society’s loss.  But like Hearn, the parameters of the rules about who gets executed are tested by those who have done terrible things, rather than only the wrongly convicted or murderers for whom we have an affinity. 

The Supreme Court rightly held that we do not execute retarded people in America.  And, as the dissent wrote, Hill is “almost certainly mentally retarded.”  Even that doesn’t seem to adequately sum it up, as there is no question that he is mentally retarded, with the only question being whether he has proven beyond a reasonable doubt that  mentally retarded enough.

That it’s necessary to parse the details to this extent, where the slightest of distinctions are argued more on a rhetorical than factual basis, in order to explain away the obvious and put the mark of death on a defendant’s head is where capital punishment goes off the rails, even for those who aren’t at all concerned that it’s part of a seriously inadequate system. 

The divided Georgia Supreme Court concluded that the proof failed to meet a burden that itself goes beyond the burden found anywhere else in the United States.  The court’s decision prevailed by one vote, based on a standard that would allow for whatever decision met the judges’ personal sensibilities.  Even the prevailing judges saw this case as sitting on a razor’s edge.  No person should be executed when it cannot be said with absolute certainty and clarity that they do not fully satisfy the statutory criteria, even if you believe that people should be executed at all.

Most ironic is that Warren Hill passed the military entrance exam.  Perhaps his conduct would have earned him a medal, if for his work ethic if not his use of weapons.  That’s how thin the line can be.  And yet he’s not sufficiently retarded to be spared execution in Georgia.  Maybe no one is sufficiently retarded in Georgia.

It wasn’t just detainees who were tortured at Gitmo, but anything remotely resembling logic as well.   ProPublica reports that the government, in its finest Catch-22 reasoning, has taken the position that five detainees can’t utter words in their own defense at their military trials because their own words are “presumptively classified.”

Can the government declare anything a Guantanamo detainee does or says automatically classified?

That’s the question posed by two challenges to a government order declaring [1] “any and all statements” by the five detainees allegedly behind the 9/11 attacks “presumptively classified.” That includes their own accounts of their treatment, and even torture, at the hands of the U.S. government.

And it’s not just the detainees who need to shut their trap, but their lawyers:

The “presumptive classification” order extends to both detainees’ testimony and their discussions with their lawyers. In other words, anything said by a detainee, whether in court or to their counsel, will first need censors’ stamp of approval before it can become public.

Absurd? Not according to the government’s argument.

After all, it’s not like the detainees didn’t ask to be exposed to secret CIA torture methods.  Oh wait, they didn’t. So the argument is that the CIA tortured the detainees, and by dint of being tortured, a classified method (or is it an activity?), they are precluded from defending themselves.  Circular doesn’t get much better than this.

As for the lawyers, it’s not as if they didn’t sign off on keeping the government’s secrets secret.

Anyone involved in the case has to sign a “memorandum of understanding [24]” indicating their responsibility for access to classified information, as defined in the protective order. The defense needs to give warning when they plan to use classified information, and to submit any information they want unclassified to a government-appointed security officer for review.

In practice, according to Connell, this means lawyers have to get approval to use even their client’s birthdate, if the source for it is the detainee’s—presumptively classified—statement. The resulting difficulties for the defense, the motion maintains, violate attorney-client privilege and Sixth Amendment protections.

What can’t be ignored about such agreements is that they offer no alternative.  Much like the SAMs in the Lynne Stewart case, no one will make you sign off on them, but failure to do so means you don’t get to represent your client.  At the time a lawyer signs off, he has no clue what the impact will subsequently be since he has no idea what information will be involved.  Like a waiver of liability, you’re expected to agree first and find out what you’re agreeing to later. Great deal if you can get it, and the government can because it has the keys to the cell.

The ACLU is challenging the government’s position, which impacts not only the detainees in their ability to defend, but the media in its ability to report.  There is a 40 second delay in closed circuit transmission of proceeding to a media room, just in case government censors feel that something said is too classy for the media to hear.

The ACLU’s motion [7] takes issue with the idea that the government has declared detainees’ “personal knowledge of their detention and treatment in U.S. custody” classified. Their exposure to classified information was forced upon them [8], the ACLU states, in CIA detention and interrogation programs that are now outlawed.

The ACLU’s brief challenges [10] whether that authority could be extended “categorically to human beings under the government’s control.” [emphasis in original]. The ACLU also argues that the detainees were not in any kind of contractual relationship which would make them liable for the classified information they were exposed to.

Making this all the more Kafkaesque, while the detainees were in no “contractual relationship” with the government, unless some sort of agreement is deemed imputed by waterboarding, their lawyers are, having signed off on the memorandum of understanding.

On the one hand, it’s completely understandable that the government needs to protect our national security secrets, such as the particulars of how the CIA uses its special techniques to persuade enemy combatants to spill their guts, whether literally or figuratively.  After all, isn’t the nation entitled to do what it needs to do to protect our American way of life without making us lose sleep over its propriety?

But then, why bother with the charade of a trial if the lawyers defending the detainees are hogtied to begin with?  If the United States has no plan to allow the detainees to defend themselves, then the outcome is not only a foregone conclusion, but will make really lousy entertainment and won’t do much to keep American’s from flipping the dial to something really classy, like the Real Housewives of New Jersey.

Let me be clear that I have long been a huge fan of Mark Herrmann. I liked him when he was a blogger at Drug & Device Law with Jim Beck.  I loved the Curmudgeon’s Guide to Practicing Law.  And we’ve become blogging buddies, meaning that he sends me emails if not business. 

When Mark left Jones Day to go in-house, I figured I’d heard the last of him. After all, after your pulse drops below 27, death can’t be far behind.  Then he re-emerged in the most unlikely of places, Above the Law, where he did a column ominously named “Inside Straight.”  Questions about sexual preference quickly put to rest, Mark once again assumed the mantle of mentor for the unemployed yet arrogant readers of ATL, providing them with insight of which they were terminally unworthy.

And now it’s a book.

The book opens with a Foreward by the guy whose blogging career began by looking underneath the robes of the judiciary, hoping to find the next “judicial hottie,” David Lat.  It’s a surprisingly honest portrayal of the early days of what is certainly the most successful law blog, and a mini-history of how it has come from juvenile snark and scatological jokes to that plus columns by someone as worthy of your attention as Herrmann.

The Preface lapses into typical Herrmann humble, explaining the concept of the book.  This is critical, as this book reflects what I submit will be a new genre, converting the content of a blog into a book which, as Mark states, is an honest reflection of not only what appeared online, but which maintains the flavor of online discourse.

When Mark let me know that he was sending me a free review copy, he asked whether I thought his idea worked, whether he pulled it off.  Not only do I think he did, but he did so spectacularly.  This is the model for all future books based upon content created for the blogosphere.

The book consists of select ATL columns, slightly altered to deal with the differences in format (such as the obvious inability to include hot links on dead trees), reorganized so that things that go together, but appeared online at disparate times, make sense.  In fairness, I’m an avid reader of Mark’s column, and read most of this when it first appeared.  The test of true value is whether it’s still a good read the second time around.

Mark’s posts, much like the Curmudgeon’s Guide, offer thoughts and advice that can be read on two levels.  On the surface, they offer fairly basic thoughts that reflect sound judgment and seasoned experience, such as outside counsel hopefuls pitching for business aren’t going to get anywhere by telling why they’re exactly the same as everyone else.  On a deeper level, however, it’s a metaphor for the failure of legal marketing in general.  Most of Mark’s in-house observations remain true for all of us, from solo criminal defense lawyers to, well, who cares. Everybody.

But aside from his columns, this book goes where no book has gone before, and this is where it gets really interesting.  After each column, Mark includes a selection of comments that were actually left at ATL.  Now if you haven’t bothered with ATL, let me warn you. The comments are an exercise in which unemployed snot-nosed kid can outsnark the others. They’re sometimes funny, in the way that watching a Jackass movie is funny, but always offensive.

And Mark put them in his book.

Not every comment is included, and some of the most venal and abusive are omitted, but there is no shortage of comments ridiculing Mark and his writing.  I will never forget his inaugural column, producing such gems as:

Via Walter Olson at Overlawyered, the anonymous author of a  blog called  Raised on Hoecakes (which apparently is a name used in the deep south for pancakes and not an urban reference to prostitution) was searching for an image of a gavel to put in a post about law, recognizing that pictures of gavels make law posts more enlightening, when he stumbled across this National Highway Transportation Safety Administration poster:



He writes:

Cool, huh?

Only one problem: it isn’t true. Someone missed the memo telling judges to make arrests for DUI a resulting conviction 100% of the time.

According to Florida DMV records there were 33,625 DUI convictions in Florida in 2011. Of the 55,722 DUI tickets issued in Florida in 2011….

That’s a 60.3% conviction rate which means roughly 2 out of every 5 people cited for DUI are not convicted of that offense. That’s not even close to “being extinct.” Other states have roughly the same percentage of convictions.

We realize there is hyperbole in most advertising campaigns. When a fast food joint says they serve the “best hamburgers in the world!” there is a bit of “puffery” in their statement.

One of the foremost concerns voiced by courts in the performance of their function is the maintenance of the appearance of propriety.  The public’s trust, and the integrity of the judiciary, depend on it.  Without it, the courts are nothing, worthless.  When the public ceases to believe that they can obtain redress for wrongs in the courts, then they only option available is the use of weapons.  Our founding fathers were ingenious to provide the citizenry with an alternative to insurrection. 

“The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erodes society’s confidence in a rule of law that evidently has no agreed-upon meaning,” write Scalia and Garner.

Posters like this don’t help either.  If it’s fine with the court to have the NHTSA announce that the fix is in and courts will no longer do their job, then there isn’t much reason for their continued existence. Is that really the message they want to send?