Having a Wonderful Adventure from Somewhere on the Road

September 7, 2014

Sunday, September 7, 2014

Good morning:

Crane-Station and I were hacked rendering our computers inoperable. Our place was burglarized, our property vandalized and stolen. Our bank account was breached and money stolen.

Our lives were threatened.

We left Kentucky in a hurry to avoid a worse fate.

This problem began when someone burglarized our home and obtained the access code to our AT&T router, which wasn’t difficult to do since it was printed on the side.

Our apartment was trashed.

Then both of our computers were hacked. Our administrator privileges were usurped, our passwords were altered, and we could no longer log-in to our computers.

I was able to reset and restore my computer to the state it was in when I purchased it, but Crane ended up in the same place unable to log-in after she reset hers.

My computer now appears to be operating normally with assistance from HP Tech Support.

Looks like we offended some people.


Bill Richard’s unimaginable horror and a jury’s choice

March 6, 2015

We do not expect our children to die before we do.

Yesterday afternoon, Bill Richard took the stand in the Boston Marathon bombing trial. He told the members of the jury what happened to him, his wife and their two children, Martin and Jane. “We were running late,” he said. The winners had already finished and they had to walk back along the race course to find a place where they could see the runners pass on their way to the finish line. After watching for awhile, the kids got bored so the family took a break and got some ice cream at a nearby Baskin & Robbins. Then they tried to find a spot closer to the finish line. They found an opening in the crowd in front of the Forum Restaurant where the kids could stand behind the metal rail barricade next to the street and see the runners.

When he heard the first “thunderous explosion” near the finish line about a block away, he thought it was a sewer explosion. Concerned, he decided that they should leave the area. He hopped over the fence and turned to help his family into the street. A few seconds later, the second bomb exploded tearing his pants apart and knocking him to the ground. He gathered up his son and carried him across the street and gently placed him on the ground.

Chris Caesar and Hilary Sargent of Boston.com pick up the story,

“When I saw Martin’s condition, I knew that he wasn’t gonna make it,” he said. “I told [Denise, his wife who lost an eye] I was gonna go be with Jane [his daughter whose leg was blown off]…she agreed.”

“It was at that time I saw my son alive, basically for the last time,” he added. “I knew we needed to move quickly, or we’d lose Jane, too.”

Richard accompanied both Henry [Martin] and Jane to Boston Children’s Hospital, describing the environment “like a scene from the movies.” There, Denise called Richard to tell him Martin had died.

“I said, ‘I know,’” he told the jury.

Jane later had 20 pieces of shrapnel removed from her body. Richard—unwilling to abandon his injured daughter—was also treated at Children’s Hospital for hearing loss, burns, and shrapnel wounds.

“But I can still hear the beautiful voices of my family,” he said.

No one ever expects to be in a situation like this. Unimaginable physical pain and unimaginable never ending emotional pain.

Incomprehensible.

What should we do with the man who visited this horror on this innocent family and more than 260 other innocent people, including two other people who died?

What should we do?

Should we kill him?

What good would that do?

Does he even understand what he did?

I have been here before. I was a death penalty lawyer and I have witnessed awful things.

I have learned that even the worst of the worst have that spark of light that binds us all to each other and can be nurtured into a mighty flame.

That is my cause, my purpose, my life’s work.

I believe in forgiveness, mercy, redemption and resurrection, no matter what a person may have done.

I would never deny that to anyone.


Since his lawyer admitted Tsarnaev’s guilt, why didn’t he plead guilty?

March 5, 2015

Since his lawyer, Judy Clarke, admitted Dzhokhar Tsarnaev’s guilt during her opening statement yesterday in the Boston Marathon bombing trial, why didn’t he plead guilty?

Many people have been asking this question in comments to news stories and blogs. The answer is the defense offered to plead guilty, if the prosecution would agree to drop the death penalty. The prosecution refused, so the defense decided to use the guilt/innocence phase of the trial to introduce evidence that they believe mitigates or reduces his culpability for the bombings relative to his older brother Tamerlan, whom the defense claims was the principal instigator or moving force who came up with idea and put it into effect.

Mitigation is not a defense to the crimes charged. Mitigation is any evidence about the defendant and the crime he committed, including the exercise of mercy, that calls for a sentence of less than death. As a matter of law, for example, a person who conspires with another to commit a crime, is just as guilty as the person who actually commits the crime, even if he is not present when the crime is committed. Even if he is present, that does not mean that he deserves or will receive the same sentence.

There is no crime, no matter how offensive, heinous or depraved that automatically merits the death penalty. Instead, jurors have to weigh the evidence admitted in aggravation (i.e., evidence about the crime and the defendant’s prior criminal record of convictions) against the evidence admitted in mitigation and decide whether the evidence in aggravation so outweighs the evidence in mitigation that a sentence of death is merited.

Evidence about the crime committed can also qualify as evidence in mitigation. For example, in a multiple defendant case such as the Boston Marathon bombing case, a defendant’s minor or minimal role in comparison to a defendant who plays a major or supervisory role is definitely a mitigating factor. The defense wants to use the guilt/innocence phase of the trial to establish that Tamerlan Tsarnaev was the instigator, the committed jihadi who was the planner and the energetic force behind the scheme to detonate two IDEs near the finish line of the Boston Marathon. They want to elicit evidence from prosecution witnesses, including law enforcement and his former friends testifying under oath that Dzhokhar Tsarnaev was a young, immature and rather typical American college kid who never would have involved himself in the crazy scheme but for his older brother who seduced him with tales of revolution, retribution and immortality in the service of God.

I have referred to this strategy as a ‘slow motion guilty plea.’ Dzhokhar has a Sixth Amendment right to go to trial, even if he is guilty. Guilty or innocent, every defendant in a criminal case has the right to force the government to prove its case beyond a reasonable doubt. What Judy Clarke said in opening statement is not evidence. The government still has the burden of proof. She believes that eliciting mitigating evidence by cross examination during the trial from witnesses testifying under oath will have greater impact than presenting the evidence in a penalty phase after the jury has decided the case. I agree because I have done this myself. In other words, timing matters.

I would never advise a client to plead guilty to a death penalty offense, unless the prosecution agreed to drop the death penalty. I believe it would be malpractice to do that.

Judy Clarke plans to use the trial to save his life.


Opening Statements Today in Boston Marathon Bombing Case

March 4, 2015

Opening statements are not evidence and they are not arguments. They are statements by the lawyers to sketch out their respective cases for the jury. Think of them as guided tours of the witnesses to be called and the evidence to be introduced. They are often described as roadmaps of the case and you can reasonably expect many sentences will begin with the phrase, “The evidence will show . . . “

Since the burden of proof is on the prosecution, the defense is not required to give an opening statement, but it would be foolish not to do so because they will not get another chance to speak to the jury until after the prosecution finishes putting on its case-in-chief, which will likely take several months.

I always gave an opening statement after the prosecution’s opening so that I could break their momentum and get the jury thinking about my case and I believe the defense will give an opening statement today for the same reason.

As I have said before, I do not believe this case is about winning or losing for the defense. It is about living or dying. From the defense perspective, they are going to be using the guilt/innocence phase of the trial as a slow motion guilty plea emphasizing evidence that mitigates the offense.

The defense has three powerful mitigators: Dzhokhar’s youth and immaturity, his absence of a serious criminal record, and most importantly, his fawning and submissive relationship with his older brother Tamerlan. When Tamerlan said, “Frog,” Dzhokhar said, “How high do I jump?” Beginning with their opening statement, I expect the defense will emphasize these mitigators every time an opportunity arises.

I am not expecting the defense to advance any elaborate government conspiracy theory to frame the Tsarnaev brothers. I do not believe there is any evidence to support such a theory and pursuing it would likely infuriate the jury and assure a death sentence. This does not necessarily mean they will refrain from mentioning and exploiting errors of commission or omission by law enforcement.

To our readers: Crane and I have been posting regularly at Firedoglake during Jane Hamsher’s hiatus from the site. She is the owner. You can expect to see my articles here more often as I am now growing more comfortable handling my responsibilities there.


FBI Director James Comey talks confronts racism in policing

February 15, 2015

In a monumentally important speech at Georgetown University on Friday, FBI Director James Comey spoke about the hard truths of racism as it affects policing. He said,

A second hard truth: Much research points to the widespread existence of unconscious bias. Many people in our white-majority culture have unconscious racial biases and react differently to a white face than a black face. In fact, we all, white and black, carry various biases around with us. I am reminded of the song from the Broadway hit, Avenue Q: “Everyone’s a Little Bit Racist.” Part of it goes like this:

Look around and you will find
No one’s really color blind.
Maybe it’s a fact
We all should face
Everyone makes judgments
Based on race.

You should be grateful I did not try to sing that.

But if we can’t help our latent biases, we can help our behavior in response to those instinctive reactions, which is why we work to design systems and processes that overcome that very human part of us all. Although the research may be unsettling, it is what we do next that matters most.

Comey’s speech is long overdue, given the emerging trend of innocent black men and boys dying after calls to 911, but at least it finally happened. For that I am grateful.

He is a man of principle and courage and he is in a position to do something that gives meaning to the words he speaks. For example, he stood up to President Bush and White House counsel Alberto Gonzalez when they attempted to convince a hospitalized Attorney General John Ashcroft to sign-off on a document approving of an unlawful NSA wiretap program. Wikipedia has the story.

In early January 2006, The New York Times, as part of its investigation into domestic surveillance by the National Security Agency, reported that Comey, who was Acting Attorney General during the March 2004 surgical hospitalization of John Ashcroft, refused to “certify” the legality of central aspects of the NSA program at that time. The certification was required under existing White House procedures to continue the program.

After Comey’s refusal, the newspaper reported, Andrew H. Card Jr., White House Chief of Staff, and Alberto R. Gonzales, then White House counsel and future Attorney General, made an emergency visit to the George Washington University Hospital to attempt to win approval directly from Ashcroft for the program. According to the 2007 memoir of Jack Goldsmith, who had been head of the Office of Legal Counsel at the time, Comey went to the hospital to give Ashcroft support to withstand the pressure from the White House.

Comey confirmed these events took place (but declined to confirm the specific program) in testimony to the Senate Judiciary Committee on 16 May 2007. FBI Director Robert S. Mueller III, like Comey, also supported Ashcroft’s decision; both men were prepared to resign if the White House ignored the Department of Justice’s legal conclusions on the wiretapping issue. FBI director Mueller’s notes on the March 10, 2004, incident, which were released to a House Judiciary committee, confirms that he “Saw [the] AG, John Ashcroft in the room. AG is feeble, barely articulate, clearly stressed.” Comey withdrew his threat to resign after meeting directly with President Bush, who gave his support to making changes in the surveillance program.

Only time will tell, but this is an encouraging development.


Court of Appeals to hear oral arguments February 19th in Tsarnaev case

February 12, 2015

The First Circuit Court of Appeals has scheduled oral arguments next Thursday, February 19th, to consider Dzhokhar Tsarnaev’s request to move his death penalty trial out of Boston. United States District Court Judge George A. O’Toole has denied three defense motions to move the trial and that prompted the defense to go to the appellate court. Meanwhile, jury selection will continue.

The New York Times reports,

In making their requests to move the trial, defense lawyers had cited the attitudes of prospective jurors. They said that of the 1,373 prospective jurors who filled out questionnaires, 68 percent said they already believed Mr. Tsarnaev was guilty and 69 percent had said they had a personal connection to the case.

They also cited the outpouring of emotion in Boston on Jan. 28 when a man shoveled off the marathon finish line in the midst of a blizzard. The Boston Athletic Association, which oversees the marathon, issued a statement saying that the act “proves that — in Boston — everyone owns the marathon.”

The defense seized on this as evidence of bias. “Such remarkable and enduring displays of public solidarity in the wake of the Marathon bombings are laudable,” the defense wrote. “But jurors drawn from the community where ‘everyone owns the Marathon’ cannot be dispassionate and impartial.”

Judge O’Toole and the lawyers have individually questioned 173 potential jurors so far in an attempt to create a pool of 60 – 70 potential jurors who have been passed for cause by both sides (i.e., people who claim that they can put aside what they know about the case and any opinions they may have formed about Tsarnaev’s guilt and impartially decide the case solely on the basis of the evidence introduced in court and the jury instructions). Judge O’Toole wants a pool that large before the lawyers exercise their peremptory challenges. Unlike challenges for cause that must be supported by a reason why the potential juror cannot be fair and impartial, peremptory challenges do not require a reason. Each side has 20 peremptory challenges, plus 3 for the 6 alternates. If both sides exercise their full complement of peremptory challenges, 46 potential jurors could be disqualified. To be on the safe side, the pool should consist of 64 potential jurors. They are not there yet, despite a month of jury selection and that demonstrates how tainted the potential jurors are by the extensive pretrial publicity and their feelings about the case.

In addition, a large percentage of the potential jurors would either automatically impose the death penalty if Tsarnaev is convicted or automatically refuse to impose it because they are opposed to it. Only people who can agree to balance evidence in aggravation against evidence in mitigation can serve on the jury. This is called the death qualification process.

I do not believe it’s possible to select a fair and impartial death qualified jury in Boston and I would grant the defense motion for a change of venue, if I were the judge. Judge O’Toole disagrees. Now a three-judge panel will decide whether to keep it in Boston or move it to another location.


How many black Americans were lynched in the American South between 1877 and 1950?

February 11, 2015

How many black Americans were lynched in the American South between 1877 and 1950?

The Equal Justice Initiative (EJI), which is based in Montgomery Alabama, reports that 326 black Americans were lynched in Alabama during that 73 year period. Jefferson county, in which Birmingham is located, led the way with 29 lynchings. Jefferson County is the most heavily populated county in Alabama and Birmingham has the largest population in the state. According to the 2010 census, the population of Birmingham was 658,466.

ELI reports that,

This was not “frontier justice” carried out by a few marginalized vigilantes or extremists. Instead, many African Americans who were never accused of any crime were tortured and murdered in front of picnicking spectators (including elected officials and prominent citizens) for bumping into a white person, or wearing their military uniforms after World War I, or not using the appropriate title when addressing a white person.

I will post the correct answer at 7 pm EST.


Chaos in Alabama

February 9, 2015

Acting in defiance of United States District Court Judge Callie “Ginny” Granade, who ruled last month that the Alabama prohibition against same-sex marriages violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, the Chief Justice of the Alabama Supreme Court, Roy Moore, yesterday ordered all of the probate judges in the state to refuse to issue same sex marriage licenses.

In a letter, Moore wrote, “Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975,” the state laws banning same-sex marriage.

Until today no same-sex marriage licenses had been issued in Alabama since Judge Granade’s decision because she had issued a stay delaying enforcement of her order until this morning in order to give the Attorney General of the State of Alabama an opportunity to appeal her decision. After granting certiorari to review Alabama’s appeal from Judge Granade’s decision, the Supreme Court of the United States (SCOTUS) by a vote of 7-2 today rejected Alabama’s request to continue the stay of enforcement pending the outcome of Alabama’s appeal. The SCOTUS’s rejection of Alabama’s request for the stay conflicts with Chief Justice Moore’s order yesterday prohibiting probate judges from issuing same-sex marriage licenses. Chaos has ensued as probate judges in some counties have issued same-sex marriage licenses while probate judges in other counties have refused.

The solution is simple. It’s called the Supremacy Clause. Article 6, Clause 2 of the United States Constitution provides,

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

And that is the end of that.

Chief Justice Roy Moore is the same guy who a few years ago defied a federal judge’s order to remove a Ten Commandments monument from a public building. He conjures up memories of former Governor George Wallace who defied the federal courts. Here’s Wikipedia to toggle your memory,

In 1963, President John F. Kennedy’s administration ordered the U.S. Army’s 2nd Infantry Division from Ft. Benning, Georgia to be prepared to enforce the racial integration of the University of Alabama in Tuscaloosa. In a vain attempt to halt the enrollment of black students Vivian Malone and James Hood, Governor Wallace stood in front of Foster Auditorium at the University of Alabama on June 11, 1963. This became known as the “Stand in the Schoolhouse Door.”

SCOTUS Justice Clarence Thomas, joined by Justice Antonin Scalia, wrote the dissenting opinion from today’s order denying Alabama’s request for a stay. He said in pertinent part,

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. This acquiescence may well be seen as a signal of the Court’s intended resolution of [the gay-marriage] question. This is not the proper way to discharge our [constitutional] responsibilities. And, it is indecorous for this Court to pretend that it is.

It doesn’t take a weather man to tell which way the wind blows.

Congratulations and best wishes to every same-sex couple in Alabama who waited so patiently for this day to finally arrive.

For more information and photos, go here.


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