Criminal defense

A Terrorist Lawyer and….

/ tcbdefense / Leave a comment

A Terrorist Lawyer, and Proud of It

Published: March 26, 2010
ALBUQUERQUE, NEW MEXICO — I am a criminal defense lawyer. Over the past 32 years I have defended people and institutions charged with a myriad of crimes in the United States and I have consulted on criminal cases in Europe. When I defended someone charged with raping a baby, no one thought I might have raped my own. When I defended someone charged with murder, no one searched my closets for skeletons. When I defended someone charged with a drug crime, no one accused me of using narcotics. And even when I defended those accused of espionage for attempting to sell America’s nuclear secrets, no one questioned my loyalty to my country.

No longer. Now that I am defending those accused of terrorism, some people assume that I have stepped over an imaginary line and become “soft on terrorism” or worse, that I support terrorism and am providing aid and comfort to the enemy.

So let me say it: I am a terrorist lawyer, if that means I am willing to defend those accused of terrorism. I am currently defending two men imprisoned in Guantánamo and I defend others accused of terrorism. Contrary to recent attacks by those who claim to be supporters of American justice, my defense of people accused of serious and sometimes horrific crimes is not an endorsement of those crimes. Rather, it is a testament to the strength of my belief in, and commitment to, the American system of justice. Why? Because in my defense of every client, I am defending the United States Constitution and the laws and treaties to which it is bound, and I am defending the rule of law. If I am a terrorist lawyer, I also am a rule-of-law lawyer, a constitutional lawyer and a treaty lawyer.

Of course I am not alone. Our history is filled with those who were proud to defend accused terrorists and enemies of the state. John Adams, who went on to become the second president of the United States, defended the British soldiers who killed innocent American civilians during what became known as the Boston Massacre. He said of his defense: “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.”

Col. Kenneth Royall, who later became Secretary of the Army, defended eight Germans who came ashore in 1942 intent on damaging U.S. weapons factories. He proclaimed this his finest hour as a lawyer.

Today civilian and military lawyers defend the non-citizens long and wrongfully imprisoned in Guantánamo — most (but not all) of whom are innocent men captured by bounty hunters.

Yes, some, in fact many, of the people I have defended have been found guilty of crimes, including terrorism.

But I am proud to have stood by their sides because they were entitled to have at least one person stand firm in their defense and in the defense of the rule of law against a powerful adversary — the awesome power of my own government. That is what the U.S. Constitution requires me to do and what our system of justice needs me to do if it is to maintain its strength for all of us.

Elected officials in the United States continue to plan for trials by military commissions and even talk of permanently detaining some people without ever determining their guilt or innocence. At least for now, this does not apply to U.S. citizens. But that could change. Once we begin compromising our legal principles and values, it is difficult to predict how much further those principles and values will erode.

The critical point is that this is not American justice. The U.S. Constitution provides that all citizens of the United States and all non-citizens who come to our shores, legally or illegally, or who are accused of violating the long arm of our anti-terrorism statutes abroad, will be safe here from arbitrary treatment.

Sadly, some of the clients accused of terrorism that I and other criminal defense lawyers have sworn an oath to protect and defend have not been safe in the custody of the United States. They have been locked away for years alone and without recourse, and they have suffered from abuse or even torture.

The highest members of the U.S. government knew of this torture and condoned it for too many years, leaving men broken in mind and body. Both of my clients now at Guantánamo have been brutally tortured and both continue to be imprisoned without trial, now for almost 10 years.

The Constitution, laws and treaties I am sworn to defend are not safe either. Every day political figures in the United States continue to use fear in an effort to convince Americans that danger lies in protecting the very freedoms, rights and principles we value.

Those who are shouting the loudest today to limit the rights and protections available to my clients include some who may find themselves on the other side of the law in the future.

Whom will they call should the day come when they are charged with crimes as a result of lying to get the United States into war in Iraq, or permitting prisoners to be tortured, or illegally wiretapping our citizenry?

Nancy Hollander is a criminal defense lawyer in Albuquerque, New Mexico, and a past president of the National Association of Criminal Defense Lawyers. She currently represents two prisoners incarcerated in Guantánamo.

I need no shackles to remind me…..

/ tcbdefense / Leave a comment

New rule released this week on restraining defendants during trial
By Bethany Krajelis
Law Bulletin staff writer

SPRINGFIELD — The Illinois Supreme Court codified two of its opinions on restraining defendants in a new rule released this week, about two months after an attorney urged the justices to stop the routine shackling of detained juveniles.
Supreme Court Rule 430 states that incarcerated defendants should not be placed in any type of restraint during trial unless there is a clear need to protect the security of the court, maintain the order of proceedings or prevent an escape.
Effective July 1, the rule requires a separate hearing on the need for restraints to be held once the trial judge becomes aware of the restraints, but before letting the defendant appear before the jury.
Though these hearings are now required under the new Supreme Court rule, they aren’t new.
Commonly referred to as Boose hearings, these hearings, as well as factors judges should consider during them, were outlined more than three decades ago in the Illinois Supreme Court opinion in People v. Boose, 66 Ill. 2d 261 (1977).
The new rule simply codifies the court’s holding in Boose as well as its 2006 opinion in People v. Allen, 222 Ill. 2d 340.
In Boose, the state high court held that a defendant could not be shackled before a jury without showing that there was a need for restraint. The court said that this showing can be based on a number of factors, including the possibility the defendant would try to escape or endanger the safety of the courtroom.
In the Illinois Supreme Court’s 4-3 holding in Allen, the court held that a defendant’s due process rights were violated when he was required to wear an electronic stun belt during his trial without having a hearing on the need for the restraint.
The three dissenting justices argued in a 25-page dissent written by Justice Charles E. Freeman that the majority erred in reasoning the defendant in Allen was not entitled to a new trial because he failed to prove the absence of a Boose hearing affected the fairness of his trial.
Though Boose and Allen make it clear that such hearings are required, the new rule lays out 10 factors trial judges must consider before determining whether the need for restraints outweighs the defendant’s right to be free from such restraint.
Those factors are: 1) the seriousness of the charge, 2) the defendant’s temperament or character, 3) the defendant’s age and physical attributes, 4) the defendant’s criminal history, 5) the defendant’s history of past, attempted or planned escapes, 6) evidence of threats made by the defendant, 7) evidence of risk of mob violence, 8) evidence of the possibility others would try to rescue the defendant, 9) the size and mood of the courtroom’s audience and 10) the physical security of the courtroom.
The new rule also comes on the heels of an oral argument in the case of In re Jonathan, C.B., No. 107750, which took place in January and focused on the shackling of a minor in Champaign County.
Though the court has yet to release an opinion in this case, the minor’s attorney Catherine K. Hart, an assistant appellate defender, said she speculates her case may have spurred the new rule.
“Most of the justices’ questions had to do with if there was enough evidence to support my argument that shackling is a widespread problem,” she said Friday.
During her argument before the court, Hart spent a good portion of her time on the issue of shackling. She said her juvenile defendant’s due process rights were violated when he was shackled without a Boose hearing.
To bolster her argument, Hart told the justices about Justice Thomas R. Appleton’s dissent of the 4th District Appellate Court opinion, which affirmed the adjudication of her client’s delinquency. Appleton said in his dissent that “In Champaign County, defendants wear chains as a seeming matter of course.”
One of the several questions posed during the January argument came from Justice Lloyd A. Karmeier. He asked Hart if she was wanted the Supreme Court to require trial judges to conduct Boose hearings even when there is no objection or request from counsel to do so.
She told the justices that “Trial courts should have the responsibility to have a Boose hearing every time a juvenile is brought to court in shackles.”
On Friday, Hart said she was happy the justices codified their previous holdings in the new rule that she hopes will help further protect the due process rights of incarcerated defendants.
New Supreme Court Rule 430, as well as video from the oral argument in Jonathan C.B and the court’s 2006 opinion in Allen, can be found on the Supreme Court Web site.

Tax the toke?

/ tcbdefense / Leave a comment

California to Vote on Legalizing Pot

In November, California will vote on whether to legalize marijuana,
thanks to a voter ballot initiative that passed inspection by state
election officials on Wednesday. If passed, the initiative would
legalize possession of up to an ounce of marijuana by people over age 21
and allow people to grow small amounts of marijuana at home for personal
use. Cities and counties would gain the right to pass laws allowing
commercial distribution to adults 21 and older in accordance with local
regulations. Activists say that legalizing and taxing marijuana sales
would provide income for the state and free up law enforcement resources
currently dedicated to tracking down otherwise law-abiding citizens. The
rule has a chance of passing – an April 2009 field poll found that 56
percent of Californians favored legalizing pot for social use and taxing
its sales. Not everyone is on board, though: California Mothers Against
Drunk Driving say that the legalization of marijuana could cause
impaired driving and its attendant fatalities.

Where was Dick Cheney when this guy was flying around…

/ tcbdefense / Leave a comment

American Terror Suspect Traveled Freely

It’s not a good sign when a terror suspect can travel to Pakistan’s tribal areas unimpeded. David C. Headley, an American suspect who allegedly helped plan the 2008 Mumbai bombing, moved freely between Pakistan, India, and the U.S. over almost seven years, The New York Times reports. According to documents Headley released as part of a plea agreement to spare him the death penalty, he traveled to the tribal area and al Qaeda stronghold of North Waziristan in Pakistan twice, and trained at well-known terrorist camps in Pakistan on five occasions from 2002 to 2005. More troubling is Headley’s alleged involvement with a European terrorist cell that planned to attack the Copenhagen offices of the newspaper that printed cartoons about the Prophet Muhammad. Headley’s story also details the close relationship between Al Qaeda and the Pakistani militant group Lashkar-e-Taiba.

Improper Admission of Evidence

/ tcbdefense / Leave a comment

March 24, 2010 by tcbdefense | Edit
Evidence 1st Dist.
People v. Jackson , No. 1-04-3660 (March 10, 2010) Cook Co. (COLEMAN) Reversed and remanded.
Defendant was denied a fair trial by admission of evidence of other criminal acts. Prosecutor argued in rebuttal that motive for Defendant to murder his disabled mother was to obtain money for drugs, and State introduced evidence of his drug use. Unprosecuted drug use is admissible to show motive only if after establishing that the defendant was addicted and lacked financial resources to sustain habit, and neither was shown in this case. Commentary on drug use was bad-character accusation prohibited by rule against admission of other crimes to show criminal propensity.

“Victory for U.S. on detainees”

/ tcbdefense / Leave a comment

ScotusBlog has the story here:

The Supreme Court voted on Monday to leave intact a lower court ruling that took away almost all of the power of federal judges to block, even temporarily, the transfer of detainees out of Guantanamo Bay. The Court, in a brief order, denied review of the D.C. Circuit Court’s ruling in April in Kiyemba v. Obama (Supreme Court docket 09-581), now informally known as “Kiyemba II.” This marked a significant victory for the federal government, enhancing its authority to decide when and where to send detainees that are cleared for release from confinement without interference by federal judges and without challenge by detainees’ lawyers.

March 22, 2010 | Permalink

This is a good idea….

/ tcbdefense / Leave a comment

Paul C. Giannelli (Case Western Reserve University School of Law) has posted Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 2002, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s recommendation. It also examines the counter arguments as well as alternative approaches, including additional measures that should protect forensic analyses from improper influence.