TO BAIL OR NOT TO BAIL

There is certainly an issue as to whether or not Dominique Strauss-Kahn posed a sufficient flight risk to be denied bail. After all, he is a citizen of France (a country that does not have an extradition treaty with the U.S.), and he was arrested on an airplane about to take off for Paris.

On the other hand, his crime, while serious, is not murder, and he had to post one million in cash and five million in collateral to remain free pending trial. Cleary, no matter what decision the court made on the issue of bail, it was bound to cause controversy. Since his arrest, the tabloids have bombarded us with headlines like, “LePerv’s Palace, Outrage as Dom Gets Bail” and “Pepe Le Pew! East Side High Rises Slam Door on Skunk.”

Part of what is fueling the controversy is that a clean decision was not made. There appears to have been a negotiation with the court, the prosecutor and the defense team in which, in addition to bail, Strauss-Kahn and has family agreed to pay a private security firm to place him under house arrest and electronic monitoring. So was he granted bail or wasn’t he? Was he allowed to substitute arrest in more comfortable surroundings (at his expense) for being housed at Rikers Island with the regular folks who have been denied bail? According to the NY Post Strauss-Kahn has rented a Tribeca townhouse for $50,000 per month.

What appears to have been an effort to cover both sides of the controversy may have actually exacerbated it. It is the spectacle of justice negotiated that is so questionable. Who can afford such a negotiation? And who is allowed to engage in it even if they could afford it? We elect and pay our judges to make decisions and take the heat, not to avoid hard choices by compromising the values that underlie our legal system, in particular, “equality before the law.”

Independents Tie the Score

Yesterday, in the second U.S. District Court decision this month on the subject of open primaries, Judge J. Michelle Childs threw out an attempt by the Republican Party of South Carolina to close the State's primary elections. On March 2, Idaho District Court Judge B. Lynn Winmill ruled in favor of the Republicans. In both cases independent voters, IndependentVoting.org, and other supporters of open primaries intervened. A copy of the SC decision can be viewed at http://www.ballot-access.org/2011/16314846926.pdf . Independents have filed an appeal from the Idaho decision.

I am proud to be working with attorneys Gary Allen of Boise and Fletcher Smith of Greenville on these important cases.

YOU CAN’T UNDERSTAND THE CONSTITUTION WITHOUT READING ALL OF IT

There has been some controversy generated over the reading of the United States Constitution during the opening session of the new Congress, organized by the new Speaker of the House, John Boehner. It had to do with “scrubbing” the document, ostensibly to conform it to the amendments (which affected some of the original text) and, in particular, the failure to read the part of Article I, Section 2 stating that each slave shall count as 3/5 of a person in determining the number of seats in the House allotted to each state.

To understand the history of the Constitution, and of our country, the original text should not be “scrubbed.” The 3/5 compromise with the slaveholding states was integral to our nation’s founding, just as the abolitionist movement and the civil war that led to amendments ending slavery and according former slaves full citizenship are to what followed. How can you understand what the amendments mean without understanding what they are amending?

One thing the Congressional readers did not have to remove from the document is any reference to political parties. Why? Because there are none. One would hope that some Members reflected on the irony that the document which establishes the structure of Congress and the rest of our government is as nonpartisan as our government is partisan. If they did, they surely did not speak up about it, as to do so would, no doubt, hurt their chances for important committee assignments, and other perks of office, all of which are doled out on a partisan basis.

ENSNARING CRIMINALS OR CREATING CRIMES?

The recent conviction of four men for plotting to blow up a New York synagogue presents one of the most peculiar and most troubling aspects of our criminal justice system, one which takes on new significance in the context of efforts to defend ourselves against terrorist attacks. The four were convicted for participating in a plot paid for and, for the most part, organized by a government informer. No synagogue was blown up. Indeed no one was harmed by the defendants' actions.

Lawyers representing defendants in such cases generally raise the defense of “entrapment,” arguing that their client was an innocent person caught in a web spun by the government to entrap them in criminal activity. In this case, the evidence showed that the defendants, poor persons, were promised $250,000 for their participation in the "conspiracy."

Under the law of entrapment, the government is not permitted to “originate a criminal design, implant the disposition to commit the charged criminal act into an innocent person’s mind, and then induce the person to commit the crime,” according to U.S. District Judge Colleen McMahon, who presided over the trial. It can, however, use undercover agents or paid informants to enforce laws and “resort to artifice and stratagem in order to catch persons who are criminally minded.”

Apparently, the critical distinction is between a person with an “innocent” as opposed to a “criminal” mind. What does that mean? The distinction on the one hand seems to be religious, yet most Western religions are premised on the fact that we are all sinners and can achieve innocence only through God’s Grace.

Is Judge McMahon saying that two people can do the exact same thing, but one is innocent and one is guilty because of a judgment about the state of their minds? And how is such a judgment to be made? If a person says that the impoverished conditions in which so many people live here and in other parts of the world create a breeding ground for terrorists, is that evidence of a less than innocent mind? Can membership in a particular ethnic or religious group be evidence of a criminal mind? There are many Americans who believe that Muslims have minds that, if not criminal, are surely not innocent.

The question of criminal or innocent minds is, of course, most relevant to prosecution for participation in a conspiracy. Under our conspiracy laws, a person can be charged and convicted if he or she agrees with the conspiracy’s object and commits an overt act in furtherance of it. In such a circumstance there is a critical difference between someone who shares the conspiracy’s objects and one who, perhaps, doesn’t even know of them but is simply asked by a friend to get some electrical wire from the hardware store down the street.

But what if the "conspiracy" is organized by a government informer whose object is not to blow up the synagogue, but to arrest persons with “guilty minds?” The threshold question, in my mind, is whether under such circumstance a crime has occurred at all. The mind of the defendant seems entirely irrelevant.

WHAT’S AT STAKE IN THE MOSQUE CONTROVERSY?

This past week President Obama expressed support for those seeking to build a mosque near ground zero. He said that Muslims "have the same right to practice their religion as anyone else in this country." In other words, it is a matter of religious tolerance.

Earlier in the week another supporter of the project, New York Mayor Michael Bloomberg, focused on a different aspect of the controversy. “If somebody wants to build a mosque in a place where it’s zoned for it and they can raise the money, then they can do that,” he said. “And it’s not the government’s business.”

The Mayor introduced the element of property rights into how we view the situation. After all, a community could say "yes we support your right to worship as you see fit, but why not do it a few blocks from here.” In fact, Governor Patterson suggested as much when he offered his help in finding an alternative site. The promoters of the mosque have not publicly responded. The owners of the property where the mosque is to be built are standing not just on the right to worship but on the right to use their property as they see fit.

The tie between private property and the First Amendment -- which also guarantees the rights to freedom of speech and association -- is fundamental. A newspaper owner has the right to say what he wants in his publication. The editor in chief does not. She can be fired.

After the enactment of the post Watergate federal campaign finance regulation system, the Supreme Court struck down restrictions on what a person can spend on his own campaign. The same decision reiterated what had long been the law -- the First Amendment does not guarantee that all voices will be heard equally.

Likewise, America claims to stand for equal opportunity. Not equality. Will equal opportunity lead to equality? Unlikely. Has the promise of equal opportunity been fulfilled? Not yet.

The Limits of Disclosure

Earlier this year Manhattan Surrogate Nora Anderson was acquitted by a jury on charges of false filing in conjunction with her successful campaign to be elected to preside over estate matters. Her prosecution came about because a colleague allegedly gave her a large sum of money which she transferred to her campaign. The charge was that this was a scheme to evade the campaign contribution limits and disclosure laws.

Because of some complicated procedural issues, the only charge that went to trial was “false filing.” The disclosure statements filed with the Board of Elections indicated that the contribution to the campaign came from Judge Anderson not from her colleague. A candidate is allowed to contribute an unlimited amount to their own campaign. Judge Anderson had very skillful attorneys at trial who argued, among other things, that the false filing charge made no sense. If Judge Anderson had reported the contribution to her campaign as coming from her colleague, it would have been literally untrue as the funds came from her account via a check she wrote.

Since the trial, the Manhattan District attorney’s office has asked the New York legislature to enact a law that would require every candidate for public office to disclose all gifts from any source that they received in the past year. If your mother gave you $10,000 to help pay your daughter’s college tuition, that would have to be disclosed. The theory is that if the government can see all the gifts you got and compare them to moneys received by your campaign, they might be able to detect an illegal contribution.

This is a dubious proposition at best. First, Judge Anderson’s contribution and its ultimate source was discovered without such a statute. Second, why should the government require citizens to disclose activity that is perfectly legal (like getting a $10,000 gift from your mother) in the hope of finding some illegality? It is an invasion of privacy and an imposition on those seeking to run for office.

It makes me think of the Mann Act, a federal statute that makes it a felony to “transport” a person across state lines to engage in “prostitution, or in any sexual activity for which any person can be charged with a criminal offense….” Under the logic of the Manhattan District attorney, the government would be justified in requiring every person who crosses state lines with another person to report that to the government just in case it turns out that the purpose of the trip was to engage in prostitution.

Something is wrong when the people charged with enforcing the law think this way.

IS IT ALWAYS REASONABLE TO ASK WHAT IS REASONABLE?

A New York appellate court recently upheld the manslaughter conviction of John White, an African American man living on Long Island for shooting and killing one of 5 white high school students who came to his house shouting racial slurs and threatening to harm his teenage son. White’s defense was based on “justification,” that as a black man who, while growing up, had experienced racial discrimination and been told that two family members were killed by the KKK, he understandably armed himself with a pistol and used it to protect himself and his family without intending to shoot the victim.

Legally speaking, a person is justified in using deadly force if he or she “reasonably believes” it is necessary to protect their home against an intruder. The jury rejected this defense, and in reviewing the evidence, the appellate court concluded that the defendant did not have such a reasonable belief. The legal standard applied by the Court was:

“A determination of whether a defendant has a reasonable belief that deadly force is necessary to prevent or terminate a burglary requires the application of a reasonableness standard which has both objective and subjective elements. ‘The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude’"

This standard has as its premise that 12 jurors who may or may not have shared a defendant's life experiences can determine whether or not the defendant's fear of harm to himself, his home and his family was reasonable. What does that mean? If the fear was “unreasonable” but, nonetheless, the defendant experienced it, why does that make him guilty?

In a diverse society with a history of racial conflict, how do we determine what is reasonable for another person to believe. Is the application of the “reasonableness” standard really another way of determining whether or not the defendants’ claim is credible. Perhaps, but it is one thing to ask do you believe that the defendant felt as he said he did and, given how he felt, was he justified in resorting to deadly force, and quite another to ask one group of people, called a jury, in this case one with ten white people, one black and one Latino, to determine whether or not another person’s, a black person’s, feelings of fear were reasonable.