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.
 

End the Opium War

Anne Applebaum calls for ending the Opium War in Afghanistan.

Excerpt:

The director of the Senlis Council, a group that studies the drug problem in Afghanistan, told me he reckons that the best way to “ensure more Western soldiers get killed” is to expand poppy eradication.

Besides, things really could get worse. It isn’t so hard to imagine, two or three years down the line, yet another emergency presidential speech, calling for a “surge” of troops to southern Afghanistan – where impoverished villagers, having turned against the West, are joining the Taliban in droves. Before we get there, maybe it’s worth letting some legal poppies bloom.

For more on this, go here.

Underpaid CEO?

The Wall Street Journal headline blares “Disney CEO Iger’s Bonus, Salary Total $17 Million” (in the print edition). To most of us, that’s an unbelievable amount of money, and no doubt many readers felt their blood pressure–and their populist anger–rising.

What the story didn’t quite say, though, was how much money Bob Iger made for Disney shareholders since he took over in October 2005. It did note that the company’s stock price has risen 43 percent in that time. So in the 15 months that Iger’s been in charge, shareholders have made some $23 billion. They probably figure $17 million is a fair reward to the CEO who played a major role in that gain.

Schwarzenegger’s Shakedown

Much has been written about TerminatorCare, Gov. Arnold Schwarzenegger’s (R) plan to guarantee health coverage to all Californians by employing every lousy idea the Left has ever conjured. 

But much of what has been written about TerminatorCare is wrong. Media accounts and even some policy wonks have reported that Schwarzenegger, through the magic of Medicaid, would have taxpayers in other states pay for only half the cost of his plan. Would that that were so.

Instead, Schwarzenegger actually proposes to use an old Medicaid trick that would put non-Californians on the hook for much more than half the cost. First, he would boost state payments to providers, which triggers federal matching funds. But then he would tax the providers so much that he would recover the state’s initial outlay plus most of the federal matching funds, which he would then use to finance the rest of the plan.  At the end of the day, California would spend zero extra dollars on provider payments, yet the ruse would net an additional $1.3 billion from taxpayers in other states.  

After one cuts through the budget gimmicks, one finds that Californians would contribute only $1.3 billion to the plan, while taxpayers in other states would contribute $4.5 billion — or over three times as much.

I haven’t seen so many people who couldn’t shoot straight since Commando

Ooh, wait, I have another one! The Schwarzenegger health plan brings to mind the tagline from Commando:

Somewhere… somehow… someone’s going to pay!

(Hey, with a dry cool wit like that, I could be an action hero.)

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.