Topic: Law and Civil Liberties

It’s Not Just About Nifong, Part II

Durham County district attorney Mike Nifong is now off the case, but his departure provides me with another opportunity to argue that the Duke University case is not just about Nifong.  (Dorothy Rabinowitz and Randy Barnett have made interesting and related points in recent days, for those interested in reading more).

Let’s assume that the North Carolina Attorney General’s office reviews the entire matter and then dismisses all of the charges against the Duke students.  Some will say that the system “worked!”  That is, prosecutorial overreaching was exposed and an injustice was averted … so let’s punish Nifong, close this case file, and … move on.  I disagree with that.  And, in defense of my view, I will introduce you to another prosecutor by the name of Tom Lock, district attorney in Johnston County, North Carolina.

Lock is responsible for jailing an innocent man for four years.  It is a long and twisted story, but I’ll give you the highlights.

Three men get together to rob a small business in Johnston County.

Keith Riddick planned the job and was the getaway driver.  Kendrick Henderson and Terrance Deloach went inside and brandished handguns.  Deloach then shot a woman twice at point blank range (she miraculously survived).  The men make their escape with petty cash.

Henderson left a fingerprint behind and was quickly apprehended. He tells the police that his accomplices were Keith Riddick and Riddick’s cousin from New York … first name “Terrance” … last name unknown. 

The police pick up a young man by the name of Terrance Garner, not Terrance Deloach. 

Garner declares his innocence, but the authorities believe they have their man.  From this point forward, the authorities seem utterly impervious to reason.

For example, when Henderson learns the police have the wrong man, he speaks up and tells them so.  His conscience bothers him so much that he disregards his attorney’s advice and testifies on Garner’s behalf–“He had nothing to do with the crime!”  DA Tom Lock calls Henderson a liar in front of the jury. 

To nail Garner, Lock made a deal with Riddick.  The deal is simple: If Riddick provides testimony against Garner (“cooperation”) he will get less jail time.  Riddick fails a polygraph shortly before the trial, but Lock uses him anyway.  From Riddick’s point of view, he gets leniency and does not have to “snitch” on his relative, Terrance Deloach.

Garner is convicted and is sentenced to 30-40 years in prison.

But wait.  Police in a nearby county go out of their way to follow up on the old “Terrance from NY” lead.  They arrest Terrance Deloach and get a confession to the robbery and the shooting.  Deloach is Riddick’s cousin and he has spent time in NY.  In fact, he spent time in a NY prison for shooting a person there.  Garner, in contrast, has no history of violence–just a drug possession arrest.

At first, DA Lock holds a press conference in which he confesses his mistake.  After all, why would this guy Deloach confess if he was not involved? 

Now things get mysterious.  After one night in the Johnston County jail, Deloach recants his confession.  DA Lock reverses course the next day and says his original case against Garner was solid after all. 

Garner’s attorneys move for a new trial.  A new jury ought to hear about Deloach and his written confession to the crime.  A new jury ought to know that Riddick gave perjured testimony where he denied having a cousin from NY named “Terrance.”  DA Lock fights this legal motion and prevails. Garner’s appeals go nowhere in the N.C. court system.  He starts serving his long jail sentence.

Summary of the case:

  • Riddick, the planner and perjurer, gets four years.
  • Henderson, who told the truth about Deloach, gets 11 years.
  • Garner, a totally innocent man, gets 30-40 years.
  • Deloach, the attempted murderer, goes free.

However, a terrific Frontline documentary brings new scrutiny to the forgotten case.  The film is so powerful that the system just cannot withstand the spotlight.  About one month after the documentary airs, a court sets aside Garner’s conviction and he is freed.

Frontline really helped Terrance Garner.  And the national media attention has really helped the accused Duke University students.  Without such intense scrutiny, Nifong would still be on the case, and it is doubtful that the North Carolina Bar Association would have launched an ethics investigation.  But what about all the other cases that do not get such intense scrutiny?  Something to think about.

Identity Crisis Book Forum Thursday at Cato

On Thursday, the Cato Institute is having a book forum on my book Identity Crisis: How Identification is Overused and Misunderstood.

Commenting on my presentation of the book will be James Lewis from the Center for Strategic and International Studies and Jay Stanley from the ACLU.

The REAL ID Act is under siege from state leaders who are bridling at this unfunded surveillance mandate, and legislation was introduced at the end of the 109th Congress to repeal REAL ID. But the immigration debate this year will surely fuel the push for a national ID with the demand for “internal enforcement” of immigration law. Identity Crisis lays the groundwork for all these discussions.

The event is streamed for those not in the area. To register, go here.

Civil Liberty (Paid for by Philip Morris USA Inc.)

In a recent radio interview, Deputy Secretary of Defense for Detainee Affairs Cully Stimson threatened top American law firms that have done pro bono work for Guantanamo detainees.  And, he suggested, Vito Corleone-style, that the corporations that bankroll these firms should think twice, if they know, eh-hem, what’s good for them: 

“I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

A chorus of criticism has followed, which President Reagan’s Solicitor General, Charles Fried, has now joined in today’s Wall Street Journal (available here).  The money quote:

“It may just be that Mr. Stimson is annoyed that his overstretched staff lawyers are opposed by highly trained and motivated elite lawyers working in fancy offices with art work in the corridors and free lunch laid on in sumptuous cafeterias. But it has ever been so; it is the American way. The right to representation does not usually mean representation by the best, brightest and sleekest. That in this case it does is just an irony – one to savor, not deplore.

It is no surprise that firms like Wilmer Hale (which represents both Big Pharma and Tobacco Free Kids), Covington and Burling (which represents both Big Tobacco and Guantanamo detainees), and the other firms on Mr. Stimson’s hit list, are among the most sought-after by law school graduates, and retain the loyalty and enthusiasm of their partners. They offer their lawyers the profession at its best, and help assure that the rule of law is not just a slogan but a satisfying way of life.”

As a big-firm alumnus, I might quibble a bit with Fried’s claim that big firm practice offers a “satisfying way of life”–but he’s absolutely right that the participation of corporate-funded defense firms on detainees’ behalf is something that’s particularly praiseworthy about the American legal system.
 

The National ID Debate, Part II

“It is the policy of the United States that the Social Security card shall not be used as a national identification card.”

So reads the last line of the Illegal Immigration Enforcement and Social Security Protection Act of 2007. The bill would put an encrypted machine-readable electronic identification strip on each Social Security card, which would enable employers to access an “Employment Eligibility Database” at the Department of Homeland Security. The database would include the citizenship status of every Social Security card holder.

Employers who hired someone without checking this … national Social Security identification card … against the Department of Homeland Security’s database would be punished. (Must remember: “It is the policy of the United States that the Social Security card shall not be used as a national identification card.”) 

So goes the push for “internal enforcement” of immigration law — sure to be an important topic in the immigration debate this year. 

The national ID law that is now in place, the REAL ID Act, is a reaction to the terror attacks of 9/11, and the assumption that knowing who someone is tells us what that person plans to do. 

But the REAL ID Act is in retreat. With states bridling at the burden they’ve been asked to bear in order to implement the act, legislation to repeal REAL ID was introduced late last year, and it is likely to be re-introduced soon.

The next wave of the ID debate will be about immigration.

On Thursday, January 18th, we’ll be having a lunch-time book forum here at Cato on my book, Identity Crisis: How Identification is Overused and Misunderstood. I will present the book, and I have invited two interesting commentators — skeptics of different parts of my theses — to weigh in. 

Please join us for what I hope will be an interesting discussion of identity issues, and a preview of an important part of the coming immigration debate. 

Register for the book forum here.

Chavez: Do We Need Any More Evidence?

In his three-hour inaugural address — yet another characteristic he shares with his hero, Fidel Castro — Venezuelan strongman Hugo Chavez eliminated any remaining doubt about his plans to rule as a socialist dictator. Yet some journalists still can’t bring themselves to speak truth about power.

Take the Washington Post, for instance. Reporter Juan Forero’s story is headlined “Chavez Would Abolish Presidential Term Limit.” He notes Chavez’s stirring mantra, borrowed from Castro: “Socialism or death!” He reports:

All week in Caracas, Chavez has shaken markets and angered the Bush administration by promising to nationalize utilities, seek broader constitutional powers and increase the state’s control of the economy. He has also frequently referred to the new, more radical phase in what he calls his revolution — drawing comparisons with Castro’s famous declaration on Dec. 2, 1961: “I am a Marxist-Leninist and will be one until the day I die.”

But then in the next paragraph Forero cautions:

If the theatrics are similar, however, the apparent goal is not. Chavez stresses that Venezuela will remain a democracy, and analysts do not believe his government will embark on a wholesale expropriation of companies, as Castro’s government set out to do soon after taking power in 1959.

Remain a democracy, eh? Well, that’s good news.

At the end of his article, Forero does note:

He has installed military officers in all levels of government and packed the Supreme Court, and now says he will end the autonomy of the Central Bank.

Good thing Venezuela is going to remain a democracy, or those actions could be worrisome.

In his 1,000-word story, Forero failed to note a key point that other journalists pointed out: Chavez said he would  ask the National Assembly, all 167 of whose members are his supporters, for special powers allowing him to enact a series of “revolutionary laws” by decree.

What more would it take for a journalist to conclude that Chavez’s “apparent goal” is the same as Castro’s and that, of course, he does not intend for Venezuela to “remain a democracy”?

Even people usually thought of as on the left have viewed Chavez’s consolidation of power with alarm. Human Rights Watch yesterday issued a report saying that Chavez and his supporters “have sought to consolidate power by undermining the independence of the judiciary and the press, institutions that are essential for promoting the protection of human rights.”

In a recent study for the Cato Institute, Gustavo Coronel, former Venezuelan representative to Transparency International, shows that “corruption has exploded to unprecedented levels…and Chávez has created new state-run financial institutions, whose operations are also opaque, that spend funds at the discretion of the executive.”

We know from theory and history that socialism — state ownership of the means of production and the attempt to eliminate for-profit economic activity — leads inevitably to tyranny. We saw it in Russia, China, and Cuba. We know that Cuba is one of the poorest countries in the world after almost 50 years of Castro and that its people daily risk their lives in rickety boats to escape.

Chavez has promised to bring socialism to Venezuela. If he succeeds, we know that the result will be tyranny. But meanwhile, he’s not waiting for the advent of socialism. He has packed Congress and the Supreme Court with his supporters. He has installed his military officers in all levels of government. He is trying to end the autonomy of the Central Bank, nationalize major industries, abolish constitutional limits on presidential tenure, and perhaps most clearly, get his followers in Congress to give him the power to rule by decree.

“Remain a democracy” indeed.

It’s Not Just About Nifong, Part I

Last month, District Attorney Michael Nifong announced that he will not be bringing rape charges against the Duke University lacrosse players. (Other criminal charges are still pending). Nifong himself is under fire for his handling of the case. Conservative scholar Thomas Sowell says Nifong should be removed from office and disbarred. Fox’s Bill O’Reilly goes further and says Nifong should be jailed. (For details on this case, start here).

Nifong’s actions should be scrutinized and he should be held accountable for any wrongs he has committed. However, since this criminal case is receiving national attention, it is important that this matter be placed in its proper context. It would be a mistake for any observer to sigh and say, “It’s so unfortunate that these young men were unlucky enough to be (a) falsely accused and (b) find themselves in the jurisdiction of a ‘rogue’ prosecutor.” That’s only part of the picture. The case is not just about Nifong. The laws and policies that are in place too often allow miscarriages of justice to take place.

Today, I will examine the law concerning speedy trials in North Carolina.

The criminal charges against the Duke students are based upon allegations arising from a party on the night of March 13-14, 2006. It will be a year before the criminal trial gets underway–so laypeople may be curious to know how the speedy trial protection comes into play. Unfortunately, this constitutional “guarantee” has lost its vitality.

Four years ago, the Supreme Court of North Carolina decided a case called State of North Carolina v. Henry Bernard Spivey. It is quite a story, which I will summarize below. (For those interested in reading the full legal opinion, go here. The legal citation is: 579 S.E.2d 251 (2003).)

The case began in October of 1994 when police officers arrested Henry Bernard Spivey, locked him up, and charged him with a crime. After that, no action was taken.

Weeks and weeks go by–no action.

Then months and months pass–no action.

After a full year goes by, Spivey, who has no formal education, writes out his own rudimentary legal motion to the court which he titles “Requesting a Prompt and Speedy Trial.” In this motion, Spivey explains that nothing is happening on his case. Prosecutors are not doing anything. His own court-appointed lawyers are not doing anything. Spivey basically says the Constitution says that he is supposed to “enjoy” a right to a speedy trial … I have been locked up for a year and I would like my trial.

Spivey’s motion is totally ignored.

Two more years pass! Then, Spivey’s court-appointed attorneys wake up and make a formal legal motion to dismiss the case because his right to a speedy trial has been violated.

No one is in any hurry to respond to this legal motion. Eight more months roll by until the court schedules a hearing on the speedy trial motion.

At this hearing, the judge listens to the arguments from the defense and the prosecution. The judge concludes that he needs further briefing on the legal issues and documentation from the court records to verify Spivey’s claims.

At this juncture, one would think that the court would reconvene in a week, check the documentation, and resolve the issue before the court. It did not happen. Another entire year goes by until the case is reheard by a different judge. At this hearing, prosecutors admit that the prisoner, Spivey, has now been in jail for four and a half years without a trial. They admit that, but they do not concede that the prisoner has been denied a speedy trial.

The attorneys representing the State of North Carolina say Spivey has not proven any “wilful misconduct” by the government. And besides, the courthouse is clogged with cases and there are staffing shortages. Under these circumstances, delays are inevitable. Thus, there is no speedy trial violation.

The trial judge agrees with the state’s argument. Spivey’s constitutional argument is rejected.

Spivey’s attorneys appeal, but the trial court is affirmed. Spivey’s attorneys then take the case to the Supreme Court of North Carolina, but that court also affirms the ruling of the trial court.

Two justices dissent from the ruling. The dissenters point out that the idea behind the speedy trial guarantee goes all the way back to Magna Carta. They said the prosecutors in this case either did not recognize the problem that they were creating for themselves–or they ignored it. Either way, a crowded court docket cannot justify a delay of four years. The justices said they doubted whether a single citizen in the state would find the delay acceptable if it concerned a spouse–or a son or daughter who was waiting for their day in court. The dissenters also wondered about the ramifications of the ruling. What if the backlog of cases continues–or gets even worse? In the year 2020, will seven year delays become an accepted norm? The majority of the North Carolina Supreme Court did not respond to those questions.

State of North Carolina v. Spivey established a legal precedent in North Carolina for resolving speedy trial disputes.

That was 2003. Now speed up to the Duke University case. One of the accused students, confident of his innocence, requested a speedy trial. Prosecutor Nifong responds by saying that he does not want to have a quick trial. He would rather wait a year and try all of the students together. The judge must decide this dispute. The judge checks the precedents and denies the motion for a speedy trial. And his decision is legal and constitutional because of the Spivey precedent.

Practical result: Prosecutors in North Carolina have the power to drag a person’s name through the mud for a long time before they have to prove their allegations in court.

Attorney General Gonzales and Mail Openings

The New York Daily News is reporting that the Bush administration has asserted the legal authority to search and inspect the mail without having to get search warrants. 

There is an “emergency” exception to the warrant requirement.  For example, if some bank robbers decide to take hostages and start making demands, a SWAT team can move in without a warrant.  When the emergency exception is ordinarily relied upon, the search is done out in the open - so the government’s actions are transparent.  The homeowner or business owner knows fairly quickly that agents conducted a search and can bring any abuse to the attention of the news media, the courts, or the legislature.  Those “checks” on police power are not in place with respect to mail openings.  We just don’t know what may be going on at the post office before we get our mail.

Rep. Jeff Flake (R-AZ) specifically asked Attorney General Alberto Gonzales about mail openings at a 2005 hearing.  Here’s the exchange:

REP. JEFF FLAKE (R-AZ): Thank you, Mr. Chairman. Thank you, General Gonzales.

Let me just try to bring this to the real world for a minute here, the real-world scenario, and see if we’re on the same page here. You may be familiar with one of the Fox News analysts, Andrew Napolitano, who wrote an op-ed a while ago. And let me just read a portion of it and get your response to it.

Quote: “The government can now, for the first time in American history, without obtaining the approval of a court, read a person’s mail and prosecute a person on the basis of what is in the mail.” Is that an accurate reflection of the law?

ATTY GEN. GONZALES: I’m not – I don’t believe it is an accurate reflection of the law. Again, if we’re talking about the exercise of authorities under the Patriot Act, in most cases it does involve the department going to a federal judge and getting permission to use a proposed authority.

REP. FLAKE: I understand in most cases. But is that possible now, for the first time in history, without obtaining the approval of a court, to read a person’s mail and then prosecute the person on the basis of what is in that mail?

ATTY GEN. GONZALES: That sounds to me like it would be a search. And I think that you would need probable cause to do that. You would need a warrant to do that, and you’d have to go to a federal judge in those cases, except, I think, in very rare circumstances, if in the event of an emergency. But even then you’d have to go to a judge after the fact and explain what you’ve done. So I don’t think that what he has said is accurate.

REP. FLAKE: But it would be accurate if you say in certain cases you would have to go to the judge after the fact.

ATTY GEN. GONZALES: But those are very rare and extraordinary circumstances. And so –

REP. FLAKE: How many of those circumstances have we had?

ATTY GEN. GONZALES: I’m not aware of any.

REP. FLAKE: None?

ATTY GEN. GONZALES: I’m not aware of any.

REP. FLAKE: If there are some, could you get back to my office with that information?

ATTY GEN. GONZALES: I can certainly look into it.

Source: Hearing before the House Judiciary Committee, April 6, 2005.

I will be blogging about this some more later, but I expect the Senate and House Judiciary Committees will immediately begin to investigate this matter and call Mr. Gonzales in for questioning.

For background on the constitutional record of the Bush administration, read this.