Friday, March 04, 2005

It's About Time

The Instapundit has some thoughts on prosecutorial discretion and the criminalization of practically everything. It's a serious issue. Grandstanding by politically ambitious prosecutors, the padding of statistics of convictions obtained by bringing "garbage" cases, and other dubious practices can put the average citizen in the uncomfortable position where the only things standing between the defendant and jail time are an overworked and underpaid trial judge and a jury consisting of citizens who would rather be somewhere else. I got a first-hand look at this issue when I recently served on a jury in a criminal case that should never have come to court, in the jury's unanimous opinion.

The California Supreme Court has just fired a shot across the prosecutorial bow. In a ruling described in today's San Francisco Chronicle a 6-1 majority of the Court ruled:

[P]rosecutors can't present different versions of the facts to two juries in order to win convictions or death sentences against two defendants.

The court said prosecutors who tried to win at all costs violated the special role assigned to them in the legal system. Quoting American Bar Association standards, the justices said a prosecutor's duty "is to seek justice, not merely to convict."

The case stems from the murder of Viivi Piirisild in her North Hollywood home in 1988. Two fellow Estonian immigrants, Peter Sakarias and Tauno Waidla, were convicted and sentenced to death after being tried separately.

At Waidla's trial, Deputy District Attorney Steven Ipsen, trying his first murder case, said Waidla had struck the lethal blow with a hatchet in the victim's living room. He presented testimony from a medical examiner that Piirisild had been dead when Waidla and Sakarias dragged her body to the bedroom -- where, he said, Waidla struck her again twice with the hatchet.

The prosecutor presented no such medical testimony at Sakarias's trial eight months later. Instead, he cited Sakarias's admission - not mentioned in Waidla's trial -- that he had struck Piirisild with the hatchet in her bedroom, and he argued that one of those blows, which nearly decapitated her, was fatal.

Ipsen claimed, at a later hearing, that he had forgotten his argument against Waidla by the time of Sakarias's trial. But the state's high court concluded that the prosecutor had engaged in "intentional manipulation of the evidence" at the second trial.

It strikes me that most fair-minded people would find what the prosecutor in this case did to be reprehensible. Just to be clear: he knew, from medical testimony in the first trial, that the victim was dead before she was taken into the bedroom. He withheld that medical evidence in the second trial so that he could argue that the second defendant killed her in the bedroom.

The next question is whether he will suffer any consequences of his misconduct. Don't hold your breath.

Friday, February 25, 2005

Judicial nominees and the Nuclear Option

The parties are warily circling each other in preparation for possible hand-to-hand combat over President Bush's judicial nominees. Much discussed is the possible use by the Republican majority in the Senate of a "nuclear option," meaning a ruling from the President of the Senate(Vice President Dick Cheney)that the existing rule requiring a 60-Senator majority to close off debate does not apply to judicial nominations, thus requiring only a simple majority to end debate and likely ending the possibility of a Democratic filibuster (unless the Republicans are unable to muster 51 of their 55 Senators, a possibility recently raised by Senator Spector).

The debate about whether to exercise the nuclear option has both political and constitutional dimensions. One obvious political consideration is that the Republicans may (and inevitably at some time will) find themselves in the minority again, and may need the filibuster to protect something very important to them. Another is that changing the rule now would be an act of political brinksmanship, in view of Minority Leader Harry Reid's threat to shut down the government if the Republicans follows through. Although it's plausible, as Hugh Hewitt observes, that a government shut-down orchestrated by the Democratic Senate minority would cause greater political harm to the Democrats than to Republicans, that's not a certainty, and there are other possible consequences that could be harmful to the country. At a minimum, there is a possibility of some collateral damage to the Republicans.

Although the political analysis does not lead to an obvious conclusion about which course the Republican majority should take, the constitutional analysis is clearer and simpler. First, the constitution itself says that the President shall appoint justices of the Supreme Court and inferior courts with the "advice and consent of the Senate." In the context in which it appears (Article II, Section 2), this provision clearly means a simple majority of the Senate. Therefore a Senate rule which permits a minority of Senators to prevent a vote on a judicial nominee deprives the President of the advice of the Senate and is clearly contrary to the intent of the Constitution.

A second line of reasoning is based on the Senate's shifting rules about when and how debate can be terminated. It seems that the modern age of the filibuster was introduced by Vice President Schuyler Colfax, whose biography suggests an otherwise richly deserved obscurity. While proponents of retaining the ability to filibuster may suggest it is an important safeguard to minority rights, history suggests that it has been used (and abused) more often to protect the privileges and interests of the minority party or other factions in the Senate than any minority of the American people. More directly to the point, history supports the position that the presiding officer has the power, should the question be presented, to rule that a simple majority can end debate on judicial nominees.

Although the nuclear option is not without political risk to the Republican party, it seems to be the right course of action as a matter of law and principle.

UPDATE: Welcome, Hugh Hewitt readers. Please take a look around.

Angry Libertarian Alliance

Angry Libertarian Alliance is fast out of the gate with a hilarious post about cruelty to animal candy. Read on to learn the origin of the blog name. Great start!

Summers vindicated already?

The flap over Harvard president Larry Summers' comments about gender-based differences in intellectual processes hasn't died down, but Captain Ed may have found an exclamation point to end the debate -- and it sounds like Summers had it right.

Friday, February 18, 2005

MSM smackdown

The cavalry has arrived to defend Batesline against the attempted intimidation of Tulsa World. Kudos to the Media Bloggers Association for helping Mr. Bates. This seems to be an organization in the right place at the right time.

Thursday, February 17, 2005

The Easongate wind-down

There is some fine commentary about the Eason Jordan affar at the Anchoress. Jordan is gone (but Dan Rather isn't, yet) and it's not a bad time to reflect -- fleetingly -- about what the bloggers did right, and wrong.

Tuesday, February 15, 2005

MSM Intimidation update

The original post on Batesline describing Tulsa World's attempt to squelch a critical blogger by alleging copyright infringement is a must-read. With the full background of that post, it seems pretty clear what the motivations are, and they aren't related to protecting the value of copyrighted content. It sounds like Mr. Bates isn't terribly frightened. I wonder if we'll hear the MSM side of the story . . .

Volunteer lawyers needed

Matt at Nerfcoatedworld is on the story of MSM attempts to intimidate bloggers by threatening legal action if they excerpt from, or even link to the MSM website. Ace of Spades and Betsy Newmark have the story, too.

We need a blogospheric Dream Team to rally to the defense of anyone who receives such a threat. Volunteers can identify themselves in the Comments.

Monday, February 14, 2005

Eason Jordan stuffed and trussed

Tim Blair does a great job of capturing the bewilderment of the NYTimes and other MSM outlets over how to spin the Eason Jordan resignation. There is a theme emerging that wants to portray the blogosphere as a lynch mob, advanced, I think, by those who have found CNN's biases to be useful to them, and the fact-checking of the better bloggers to be very threatening. In this script Jordan is the misspeaking victim of baying hounds.

One problem with this spin is that it assumes the listener has a sound-bite mentality. That assumption could only be entertained by someone who doesn't regularly read the important bloggers, who offer analysis and supporting facts that are the antithesis of soundbites. These readers aren't going to be swayed by the "Jordan as victim" thesis because they have read extensively about his past statements, and know (based on the public record and his own writings) that Jordan made a regular practice of trashing the U.S. military, and that a very plausible reason why he did so was a venal desire to pump up CNN's international viewership and prestige.

On the other side of the ledger, the people who might be moved by a soundbite analysis are, for the most part, going to tune out on this one. So another big-time journalist quit in disgrace, who cares about the details.

If you want a sense of the commentary, check out the reader responses to the WSJ editorial here that attempted to portray the blogosphere's role as that of a ragamuffin army. I would say the WSJ took a few lumps on this one, and the NYT was a complete disgrace.

Thursday, February 10, 2005

A Sobering Thought

Some of the most thoughtful, carefully researched analysis of our current global political-military-economic issues is available daily at the Belmont Club. See today's posts if you would like a bit of cold water splashed on your face.

Learning from the Large Law Firms

Just one generation ago, law firms, large and small, were among the last beacons of stability in the newly turbulent seas of commerce. (Oh, give me a break -- ed. OK, less turgid prose from now on.) In a rare burst of insight for a newly minted young lawyer, I saw that a sea change was coming ( what did I tell you? -- Ed. Sorry, that was still in the pipeline) and got out of a large law firm years ago.

Today, I read that my old law firm was merging (for the third or fourth time) with another largish law firm -- no big news there, it happens all the time.

But the rationale for the merger was an eye-opener:

"The merger will allow Pillsbury Winthrop, whose strengths include capital markets and finance, to increase its presence in the nation's capital and the important securities market of northern Virginia, and to take advantage of Shaw Pittman's work on the legal aspects of outsourcing jobs.

"They have a global outsourcing practice which we believe will be the largest growth area in legal services in the next 10 years," Cranston said in an interview.


I remember Mary Cranston, Pillsbury's Managing Partner (or, I guess, CEO is the proper term these days), we were contemporaries, and I know she is a very astute lawyer. And there's no doubt that global outsourcing is a very hot subject right now (see my earlier post on outsourcing of legal work, for example).

On the other hand, the company I work for (a large financial services organization with extensive "back office" operations -- think of when you call your bank or credit card company and finally punch through voicemail jail to a real person) has just "onshored" some work that had been sent to India a year or so earlier. That decision wasn't driven by jingoism or other political pressures, or by customer complaints (there weren't many of either). It just turned out that we could achieve a better cost-quality result by doing the work here.

Good grief! Is offshoring of jobs, as a political/economic issue, going to go the way of previous scares (like the Japanese economy taking over the world in the 1980's)?

A Man for all Seasons

Click over to Pejmanesque for some of the most eclectic, well-written and consistently entertaining commentary in the blogosphere.

Killing the Messenger?

It's hard to know what to make of this decision by a Federal jury finding lawyer Lynne Stewart guilty of crimes in representing the "blind sheik" behind the first World Trade Center bombing.

On principle, I don't think we want to punish lawyers for representing unpopular defendants, and there's a whiff of prosecutorial retribution around this story. After all, any of us could, at least in theory, become an unpopular defendant some day. On the other hand, being someone's lawyer shouldn't be a defense if you become an accomplice in a crime committed -- or planned -- by the client. It appears that was the line this jury was asked to draw.

I hope we will see more details emerge in the coming days -- and that they will be reported. In the meantime, there is some comfort in the fact that this jury took plenty of time in its deliberations. As noted below, my own experience on a jury has made me a strong supporter of our current jury system.