Vijaya Rajiva,Book Review,'Breaking All the Rules'

Friends & Colleagues,

Vijaya Rajiva,Book Review,'Breaking All the Rules'

Palestine Chronicle,March 20,2008.

Francis Boyle international lawyer extraordinaire & political activist who teaches at the University of

Illinois,U.S.A., is known to us all and needs no special introduction.His latest book 'Breaking All the

Rules' (Clarity Press,March 2008) is based on the Bertrand Russell Foundation Lectures, McMaster

University, Canada, focuses on the two overarching issues of our times, first, George Bush's attacks on

civil rights in the US & his war on the international community (and the National Campaign for his

impeachment). Second, Israel's violations of International Law and its attacks on the Palestinian

people both at the physical and legal levels (and the liberation struggle of the Palestinian people).

The two issues are linked, and illustrate the central point of the book, namely, that any attack on a people is preceded by an attack on their legal personality (Hannah Arendt, Bertrand Russell).

Vijaya Rajiva

By Vijay Rajiva

Breaking All the Rules by Francis Boyle (Clarity Press, March 2008)

This book, based on the Bertrand Russell Foundation Lectures at McMaster University, Canada by Dr. Francis Boyle lives up to the reputation of this respected international lawyer and well regarded activist.

Dr. Boyle who teaches at the University of Illinois focuses on the two large issues of our times, starting with the issue of Israel's violations of International Law and its attacks on the Palestinian people at both the physical and legal levels. The second is George Bush's attacks on civil rights in the U.S. and his war on the international community. The first and the second are linked and represent the central point of the book.

But Dr. Boyle does not stop at analysis. He proceeds vigorously to outline the steps that the international community can and should take to deal with the two problems. In the case of Israel, activism at all levels but especially the Boycott, Divestment, Sanctions (BDS) Movement which he helped start in Nov. 2000.

This book is a valuable compendium of the legal aspects of the two problems, the Israeli and Bush administration violations of human rights and law. The book is divided into two main parts: the Israeli-Palestinian question and the impeachment of George Bush.

At the conclusion of each segment there is a question and answer period where Dr. Boyle clarifies and amplifies his material in response to specific questions. There are relevant and valuable appendixes and a lengthy, comprehensive list of organizations and groups involved with the Palestinian question. Both sections have the further interest in providing vignettes of the author's personal journey in finding and sticking with the causes that he served and continues to serve.

His early inspiration seems to have been the work and ideals of Bertrand Russell, notably the path breaking Tribunal which as Dr. Boyle observes was important in turning public opinion against the Vietnam war and the Russell/Einstein Manifesto on Nuclear Weapons, the seminal event as Dr. Boyle describes it in the anti nuclear movement.

It is understandable then that Breaking All the Rules begins with a Russell quotation that cuts to the heart of the Israeli engagement with the Palestinians:

"For over twenty years" said Russell writing in 1970 "Israel has expanded by force of arms. After every stage in this expansion Israel has appealed to 'reason' and has suggested 'negotiations'. This is the traditional way of the imperial power because it wishes to consolidate with the least difficulty what has already been taken by violence. Every new conquest becomes the new basis of proposed negotiations from strengths, which ignores the injustice of the previous aggression."

Peace and Palestine

Dr. Boyle tells us that this was his experience when working as legal advisor to the Palestinian Delegation from 1991-1993. He was convinced quite early on that the only way for peace in the Middle East was for the establishment of a Palestinian state, and admission to the UN. He stated this publicly in 1987 and worked with the PLO Delegation to draft the Declaration of Independence.

He draws our attention to what is not widely known, namely that the PLO advanced the idea of the Peace Initiative as part of their Declaration. Hence, it was not the US that started the peace process, as is commonly thought. In the Political Communiqué of the Palestinian National Council, the Declaration also made a firm commitment to the purposes and principles of the UN Charter, the Universal Declaration of Human Rights and the policies and principles of Non-Alignment.

The events leading up to President Arafat's decision to sign the Oslo Accord of 1993 are only briefly touched upon as both the background and the legal basis of the Declaration are fully dealt with in Dr. Boyle's earlier work of 2003, Palestine, Palestinians and International Law. In Nov. 30 he publicly called for the establishment of an international campaign of divestment and disinvestment vis-à-vis Israel, similar to the campaign against former apartheid South Africa in which he had been actively involved along with his defence of anti apartheid protest cases which he explains in his book Defending Civil Resistance Under International Law.

Of special interest is the brief discussion of the United Nations General Assembly's Resolution 377. This is the famous Uniting for Peace Resolution which overrules the veto of the Security Council. Dr. Boyle drafted the memorandum for the PLO, which was used 16 times, including in the summer of 2006.

Impeaching Bush

The second half of the book is devoted to the question of the national movement in the US to impeach George W. Bush and those around him who were associated with his foreign policy. There is a brief account of the author's involvement with the impeachment process (along with fellow lawyer Ramsey Clark) which he had first initiated. We see clearly the complicity of the Democrats in stalling, delaying and ultimately relegating the bill for impeachment to oblivion, which Cynthia McKinney, herself a Democrat, had courageously submitted to the House before she stepped down.

Bush's foreign policy generally, says Dr. Boyle, is a deviation from International Law. It has specific components of criminal activity both under well recognized principles of International Law and US Domestic policy, the Nuremberg Charter, the Nuremberg Judgment, the Nuremberg Principles and the US Army Field Manual 27-10 on The Law of Land Warfare which is applicable to Bush as Commander in Chief of the Armed Forces, under the United States Constitution.

The international crimes typically include but are not limited to the Nuremberg offences of "crimes against peace", in Afghanistan, Iraq, and today in Somalia. They also include "crimes against humanity" and war crimes as well as grave breaches of the Four Geneva Conventions of 1949 and the 1907 Hague Regulations on land warfare, torture at Guantanamo, Bhagram, Abu Ghraib, disappearances, assassinations, murder and kidnappings.

The actors embroiled in this Legal Nihilism are those at the top of the criminal chain of command, Bush and Cheney, and as well the Secretary of Defense, Secretary of State, Directory of National Defence, National Security Advisor, the Attorney General and the Pentagon Chiefs of Staff.

The neocon philosophy of dominance and racial superiority is demonstrated in their policies towards Muslims, Arabs, Asians and Africans. The civil war in Iraq, ethnic cleansing and the carving up of Iraq are standing examples.

Dr. Boyle, is also an activist and hence Breaking All the Rules ends with an exhortation to his fellow citizens to protest (and defeat) Legal Nihilism whether at the international level or at the domestic level of the violation of civil rights with mass protests, demonstrations, and civil resistance, as happened during the Vietnam era. Hence, the book ends on a note of optimism, at the power and possibilities that ordinary citizens have to turn the tide of injustice and restore law and justice to our world.

Dr. Vijaya Rajiva taught Political Philosophy. She contributed this article to PalestineChronicle.com

Another book by Francis Boyle that is worthy of interest is PROTESTING POWER

WAR, RESISTANCE, AND LAW

By Francis A. Boyle

In this indispensable book, distinguished activist lawyer Francis Boyle sounds an impassioned clarion call to citizen action against Bush administration policies, both domestic and international.

Written for concerned citizens, activists, NGOs, civil resisters, their supporters, and their lawyers, Protesting Power provides the best legal and constitutional arguments to support and defend civil resistance activities. Including a number of compelling excerpts from his own trial appearances as an expert witness and as counsel, the author offers inspirational and practical advice for protesters who find themselves in court. This invaluable book stands alone as the only guide available on how to use international law, constitutional law, and the laws of war to defend peaceful non-violent protesters against governmental policies that are illegal and criminal.

ROWMAN & LITTLEFIELD

4501 Forbes Blvd., Suite 200

Lanham, Maryland 20706

(800) 462-6420

www.RowmanLittlefield.com

War and Peace Library series

November 2007, 256 pages

ISBN 0-7425-3892-3 / 978-0-7425-3892-4 $24.95 paper ISBN 0-7425-3891-5 / 978-0-7425-3891-7 $75.00 cloth

House approves controversial death penalty bill

House approves controversial death penalty bill
10 jurors could decide capital punishment

By BEN SMITH, BILL RANKIN
The Atlanta Journal-Constitution
Published on: 03/19/08

Imposing the death penalty in Georgia would take only 10 of 12 jurors under an amended bill approved by the state House Wednesday.

The controversial amendment would change the way capital punishment has been imposed in Georgia for more than two centuries. It allows a judge to decide the ultimate sentence if a jury votes at least 10-2 in favor of death. Current law requires a unanimous jury verdict for a capital sentence.

RELATED: Senate Bill 145 Legislature 2008 Georgia and metro news

Senate Bill 145, sponsored by Sen. Preston Smith (R-Rome), began as non-controversial legislation. It allows district attorneys to seek life-without-parole sentences in aggravated murder cases. Under current law, prosecutors can only obtain life without parole for murder when they seek the death penalty or when a murder defendant has an earlier conviction for a serious violent felony.

But it was amended on the House floor to allow death sentences when juries cannot reach unanimity. A similar measure passed the House a year ago, but died in a Senate committee.

The amendment only addresses the sentencing stage of a trial and does not change the guilt or innocence phase of a verdict. Unanimity is still required for a judgment of guilt.

If the non-unanimous jury provision becomes law, it would dramatically change death-penalty trials in Georgia, Stephen Bright, a lawyer with the Southern Center for Human Rights, said.

"The value of requiring unanimity is that everybody's view is given equal weight," Bright said. "And, now, 10 jurors can simply disregard the views of two jurors. That changes the whole dynamic of how juries decide these cases."

Smith, chairman of the Senate Judiciary Committee that passed the bill that was amended, expressed disappointment the House changed his legislation and did not work the non-unanimous jury proposal through his committee.

"We feel like the two issues are very different policy decisions," Smith said. "Each one ought to have its own consideration on its own merits. By bootstrapping them together, both are now in jeopardy of failing to pass."

When the bill was debated last year, supporters said prosecutors seeking death were being thwarted by holdout jurors. Since then, Georgia's district attorneys have had greater success in obtaining death sentences. In 2007, state prosecutors sent six killers to death row — the most in at eight years.

Speaker Glenn Richardson (R-Hiram) said Wednesday that the amendment would prevent heinous killers from escaping a punishment they deserve. Richardson cited the 2005 murder of 9-year-old Jessica Lunsford, who was kidnapped, raped and killed after being buried alive near her home in Homosassa, Fla. A Florida jury, by a 10-2 vote last year, sentenced John Evander Couey to death. Couey's lawyers had argued their client was mentally retarded and mentally ill.

"If you need further convincing perhaps you ought to go talk to the family of Jessica Lunsford," Richardson said. If the murder had taken place in Georgia, Couey would not have gotten death, he said.

State Reps. Ed Lindsey (R-Atlanta) and Robert Mumford (R-Conyers), who is a former prosecutor, argued against the bill, saying that it would overturn centuries-old legal precepts that give juries the power to render life and death decisions in capital cases.

"Today we're imposing a new line at 10, next year it'll be nine, next year it will be eight, next year it'll be zero, because we've chosen no longer to trust juries," said Lindsey. "Well I'm here to tell you that that is an enormous step backwards for our civil society"

Lindsey, who said he supports the death penalty, also argued that if the bill becomes law, death row inmates could delay their executions even longer, because "of countless appeals on whether or not this proposed change is constitutional."

If the bill passes the Senate and is approved by the governor, Georgia would be one of only five states in the nation with the death penalty that does not require a unanimous jury verdict for a death sentence, according to the Death Penalty Information Center. The other four are Alabama, Delaware, Florida and Montana. A judge decides sentences in Delaware and Montana, while juries only make recommendations to judges in Alabama and Florida.

The Book Of Clarence Thomas

Andrew Cohen: Court's Only Black Justice Won't Oppose Legal Racism In Death Penalty Case

http://www.cbsnews.com/stories/2008/03/21/opinion/courtwatch/main3958407.shtml

(CBS) Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

---

If you really want to take the measure of Supreme Court Justice Clarence Thomas, don’t bother reading his self-serving, cry-for-help book. And don’t bother going into the archives to view or read the fawning interviews that accompanied it. Just read this week’s big death penalty decision in a case involving a black man named Allen Snyder.

By a margin of 7-2, with conservative Justice Samuel A. Alito, Jr., writing the majority opinion, the Court Wednesday overturned Snyder’s death penalty conviction and ordered a new trial after concluding that black jurors were illegally barred from his Louisiana trial. The Court’s ruling was the latest in a recent series designed to rein in rogue prosecutors and recalcitrant judges who merely give lip service to the constitutional mandate that black jurors ought to be able to sit in judgment upon black defendants.

Snyder is no picnic. He allegedly murdered his estranged wife’s boyfriend. But this case, this appeal, was not about his guilt or innocence or even any of the information offered at trial, before which the prosecutor told one and all that this was his “O.J. Simpson” case, a reference to a black defendant whom many believe got away with murder back in the fall of 1995. Snyder’s trial was in 1996 - less than a year later.

The Snyder case instead is about what happened during jury selection. All five black jurors who made it through the initial screening were promptly eliminated by the prosecutor using his “peremptory strikes.” These occur when either side in a case unilaterally rejects a potential juror before trial. Such strikes may not be based upon race. So Snyder’s lawyers immediately (before trial) challenged two of the “strikes” on the grounds that they were unconstitutional. This required the prosecutor to justify his decision to eliminate the two people.

When he justified his decision to strike one such juror, the prosecutor said that the man looked nervous and might want to bargain in deliberations for a lower charge because he wanted to get back to his job as a student teacher. The trial judge immediately agreed with these justifications without making any sort of a factual finding that the prosecutor’s concerns were based upon impressions the judge himself agreed with. This spur-of-the-moment bench ruling, the Supreme Court said, “fails even under the deferential standard of review” the trial judge gets in these types of cases.

What else? Here is what Justice Alito wrote: “The implausibility of [the prosecutor’s] explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’.” In other words, the prosecutor bent over backward to remove black jurors from Snyder’s trial and bent over backward to keep white jurors in the jury pool. The Supreme Court, then, issued a ruling that comports both with precedent and common sense-not always a guaranteed Quinella these days.

Two members of the Court did not see things that way. They would have supported both the two-faced prosecutor and the quick-draw trial judge. One of these Justices was Clarence Thomas, just the second black person to sit on Court. Despite the obvious scheme devised by the prosecutor - and endorsed by the trial judge - Justice Thomas declared that it was not the province of the Supreme Court to “second-guess” such judges when they make decisions about jury selection in capital cases.

Writing for his ideological brethren Justice Antonin Scalia, Justice Thomas praised the “pivotal role” of the trial court. The prosecutor in Snyder’s case, according to Thomas, offered “neutral” reasons for excusing the black jurors; reasons that the trial judge was right to accept and that the Supreme Court is wrong to reject. The majority was wrong, too, Justice Thomas declared, for comparing the white and black jurors who were excused by the prosecutor.

Go ahead and read both the majority and dissenting opinions and then ask yourself which one comports with your sense of justice and fairness. Under Justice Thomas’ standard, apparently, a black defendant could successfully challenge the exclusion of a black juror from his case only if the prosecutor were so blatantly racist that the motives for the exclusion were clear for all to see. Those kinds of prosecutors - thankfully - no longer exist in this country. The law has exiled them into obscurity.

But the other kind of prosecutor - like the one in Snyder’s case - just as obviously still does exist in America. This kind of prosecutor is too smart and subtle to be so cavalier in open court about the reasons for precluding black jurors from sitting in judgment upon black defendants. This kind of prosecutor with a wink and a nod excuses black jurors with the barest of rationales - “he looked very nervous to me,” said Snyder’s prosecutor - that then are condoned by sympathetic judges who are in on the gig.

The Supreme Court this week said it will no longer countenance this charade. Justice Thomas said this week that the charade ought to be respected. He may be, as his recent book suggests, his “grandfather’s son.” But I doubt even Justice Thomas’ grandfather would be pleased with the lengths to which his grandson has proven willing to go to keep alive in precedent among the last (and worst) vestiges of legal racism.

Land Behind Bars

The Hidden Casualities of America's "War on Crime"

By MARLENE MARTIN

The number of people behind bars in the "land of the free" is grown as large as the combined populations of Atlanta, Miami, Minneapolis, Cincinnati, Kansas City and Pittsburgh.

That's the shocking fact in a Pew Center on the States report showing that one in 100 adults in the U.S. are in prison or jail--more than 2.3 million people.

When it comes to locking up its people, the country that claims to be the "world's greatest democracy" is far ahead of every other nation--ahead of China, ahead of Russia, ahead of all the tyrannies that the U.S. government supports around the world--both in absolute numbers of prisoners and the rate of incarceration.

As has always been the case in a country founded on slavery, the inmates of America's prisons are disproportionately people of color. Among African American men over 18, one in 15 are in prison--between the ages of 20 and 34, fully one in nine Black men are behind bars. When those on parole, probation or otherwise involved in the criminal justice system are included, that statistic rises to one in three.

As staggering as these facts are, the stories of the individual human beings behind these statistics--men and women whose lives have been destroyed by the criminal justice system--are even more horrifying.

Mark Clements is one of them. Mark was 16 years old when Chicago police officers and detectives picked him up on suspicion of setting a fire that killed four people. The white cops worked for Jon Burge--Mark became one of the hundreds of African American suspects tortured until the "confessed" by Chicago police under Burge's command.

Mark was kept in lockup for a year until he was old enough to stand trial as an adult. During his sentencing, Mark pleaded before the judge for more than two hours that he didn't commit the crime--that the police had beaten him into confessing. The judge sat with folded arms, staring straight ahead--and after Mark was done, he imposed the "mandatory" sentence of life without the possibility of parole.

Mark is 45 today. He has spent two-thirds of his life in prison. And if the state of Illinois gets his way, he will die there.

* * *

For the past two decades, crime rates have been in long-term decline, according to the Federal Bureau of Investigation. But the prison population has exploded during this same time.

To put this into proportion, between 2005 and 2006, the U.S. prison population rose by more than 65,000, an increase of almost 3 percent, which is on the low side for annual figures over the past 25 years. By contrast, in 1972, the total U.S. prison population was 196,092.

Who accounts for the vast number of people warehoused in America's jails and prisons? According to Justice Department statistics, more than half the people in the federal prison system and one in five inmates in state prisons were drug offenders--almost half a million in total.

Many of these prisoners were convicted of nonviolent offenses. More than a quarter of drug offenders in state prison are serving time for nothing more than possession. According to the Sentencing Project, arrests for marijuana possession accounted for 79 percent of the growth in drug arrests in the 1990s--despite the fact that not a single death has been attributed specifically to marijuana use, unlike such legal drugs as alcohol and tobacco.

David Ciglar pled guilty to growing marijuana seedlings in his garage in Oakland, Calif.--and received the state's mandatory minimum sentence of 10 years.

"My family is devastated," says David in the book Shattered Lives: Portraits from America's Drug War. "My wife is living every day wondering if she can make it financially and mentally. My kids don't know why their dad was taken away for such a long time. I have not even bonded with my youngest daughter. She was 2 when I left her."

Richard Nixon officially declared the U.S. government's "war on drugs" in 1971, but the drug war didn't really get under way until Ronald Reagan's presidency in the 1980s. The casualties have been mounting ever since.

One of the drug war's chief weapons has been the 100-to-1 rule that governs sentencing in convictions for possession and distribution of crack cocaine versus powder cocaine. Under the 1986 Anti-Drug Abuse Act and another law passed in 1988, possession of 5 grams of crack cocaine (about the weight of two pennies) results in a mandatory sentence of five years, while it takes 500 grams of the powder form of cocaine to yield the same sentence.

Behind the disparity is an openly racist double standard: African Americans account for most of those convicted and sent to prison for offenses related to crack cocaine--including 82 percent of those prosecuted and jailed at the federal level--even though they are a minority of users.

Those ensnared in the drug war aren't typically high-level dealers, either, according to Marc Mauer of the Sentencing Project. "By and large, these defendants are not the kingpins of the drug trade," Mauer wrote. "Data from the U.S. Sentencing Commission document 73 percent of the crack defendants had only low-level involvement in drug activity, such as street-level deals, couriers or lookouts."

The drug warriors' justification for the 100-to-1 rule was that crack was so highly addictive, and that its users became super-violent. Many of these stereotypes have been proven untrue, yet the bias in sentencing remains.

According to Carol Brook, deputy director of the federal defender program for the Northern District of Illinois, "These disparities exist, even though we know that the physiological and psychoactive effects of crack and powder cocaine are virtually identical. They exist even though the effects of prenatal exposure to crack and powder cocaine are identical. They exist even though the epidemic of violence and rapid spread to youth that crack was suppose to create never happened."

Despite the countless reports and studies, and the pleas from drug-war victims, their families and activists, Congress to this day has failed to change the 100-to-1 rule--though the U.S. Sentencing Commission voted last year to modify penalties for crack cocaine offenses.

* * *

The terrible impact of the "tough-on-crime" crusade can be seen in another disturbing statistic disclosed by the Pew report: More than half of all released offenders end up back behind bars within three years. Some commit another crime, but others are guilty of minor violations of the terms of their release--according to federal statistics, more than a third of people who entered prison in 2005 were arrested for parole violations.

This reality isn't altogether surprising given the 20-year trend of dramatic cuts to education programs for prisoners, which have been shown to be the single-most important factor in reducing recidivism.

Such programs grew widely as a result of the Attica prison uprising in 1971--as of 1995, there were still 350 programs that allowed prisoners to earn college degrees. But thanks to "law-and-order" measures passed by a Republican Congress and signed into law by Democrat Bill Clinton, they began to disappear. Only 12 of these programs exist today.

There are finally some cracks appearing in the "lock 'em up and throw away the key" mentality of lawmakers. Sadly, however, many of the proposals under consideration now aren't driven by a change of heart, but by the financial crisis caused by states facing the burden of paying for incarcerating ever-growing numbers of people.

According to the Pew study, five states spend more of their budget on prisons than they do on higher education. Overall, between 1987 and 2007, "state spending on higher education has increased 21 percent, while corrections spending had more than doubled, increasing 127 percent," the Economic Policy Institute reported.

This economic burden is forcing some welcome policy changes. In Texas, for example, some drug offenders are being put into treatment programs instead of prison. Other states are also considering early release programs, and the guidelines on crack cocaine offenses accepted by the U.S. Sentencing Commission are being applied retroactively.

This is a move in the right direction, but it is taking place too slowly--and the lives of 2.3 million people are wasting away in the meantime.

Earlier in March, the writers of the HBO drama The Wire spoke for them in an essay in Time magazine. If asked to serve on a jury in a drug case, they would vote to acquit, the writers said. "No longer," they concluded, "can we collaborate with a government that uses non-violent drug offenses to fill prisons with it's poorest, most damaged and most desperate citizens."

MARLENE MARTIN is national director of the Campaign to End the Death Penalty (CEDP) and a frequent contributor to the Socialist Worker.

Former death row inmate pleads guilty to 1985 crime

Thursday, March 20, 2008

DALLAS (AP) — A man who was on death row for nearly 20 years until the U.S. Supreme Court overturned his verdict because of racial discrimination in his trial has pleaded guilty to the 1985 slaying for which he was originally sentenced to die.

Thomas Miller-El accepted a deal with Dallas County prosecutors Wednesday that spares the 56-year-old from heading to death row for a second time but virtually assures he will never leave prison.

A judge sentenced Miller-El to life in prison after he pleaded guilty to capital murder and aggravated robbery in the killing of a hotel clerk. He waived his right to appeal in exchange for prosecutors not seeking the death penalty, The Dallas Morning News reported.

The plea appeared to end a two decades-old saga in which Miller-El, who is black, had his original conviction tossed in 2005 by the high court on the grounds of racial discrimination in jury selection.

“The attitude currently in the DA's office is not conducive to the tone that existed back when Mr. Miller-El's case was tried,” said Doug Parks, Miller-El's attorney.

The Supreme Court cited a manual, written in 1969 and used until at least 1980, that instructed prosecutors on how to exclude minorities from Texas juries. Supreme Court Justice David H. Souter called racial discrimination in Dallas County's jury selection process unquestionable.

Miller-El was sentenced to death row in 1986 by a 12-member jury that included one black. Prosecutors struck 10 of the 11 blacks eligible to serve.

Miller-El pleaded guilty to killing Holiday Inn clerk Douglas Walker during a robbery. Walker and co-worker Donald Ray Hall were bound, gagged and shot. Hall, who was paralyzed in the shooting, identified Miller-El as the triggerman

Letter to Obama from Sherrie Stone

Dear Barak,

I am a republican, but have been very impressed with you.

I would like to know why the Presidential Candidates are not speaking up about the death penalty. The United States Supreme Court will be making a historic ruling in a month or so, executions are on hold and we have a very flawed system.

Why is this not a topic?

Do you know in Alabama, the State of Alabama is trying to execute a man whom has never had his first habeas corpus or rule 32 appeals heard. There is also DNA evidence that could prove his innocence and the Governor will not allow it. The USSC even denied him DNA testing Nov. 2007. It is because of a law signed into action by President Clinton in 1996, called the AEDPA Act. It puts a one year time limit on death row inmates to file their post-conviction appeals.

Well in Alabama, the only State in the United States, death row inmates are not even entitled to an attorney during post-conviction appeals. So even if you have DNA evidence , that if tested, that could prove your innocence, too bad we are going to kill you because you did not file your paper work on time. Another man in Georgia was just denied new trial based on the same AEDPA Act.

I would think you would be all over Clinton on this AEDPA ACT her husband signed.

All people for or against the death penalty, can agree on one thing, we do not want to execute innocent people. (or should I say murder)?

It is my father the State of Alabama is trying to murder. He did not file his paper work on time, because he did not have an attorney, and by Alabama laws, he was not entitled one. He is no angel, but for Gods sake, do we really live in a Country where you do not get a habeas corpus review, you are not entitled to a lawyer, and you cannot have DNA testing of the crime scene evidence? Yes, Barak, we do and I am appalled the Presidential Candidates are not even discussing it.

My fathers name is Thomas Arthur, Z-427, Alabama Death Row Inmate. The other man in Georgia who will be executed is Troy Davis.

They are both and many more will be murdered because of this AEDPA Act. They will not be allowed new trials to show evidence that can prove their innocence. They both and many more will probably be murdered this year, once the USSC rules on cruel and unusual punishment. That is not the issue they should be ruling on and you know it.

Do you know what it is like to sit with your father before a scheduled execution and realize he is probably innocent of the crime?

Twice I did that last year, Sept and Dec. 2007. Now that is cruel and unusual punishment for me and the victims family. People don't realize that there are two sets of victims when a crime is committed, the victims family and friends, and the convicted's family and friends. Is it really justice and closure for either set of victims if we murder the wrong person?

So something about this or speak of it and I will change parties. Right now, I am just disgusted with both parties.


Sincerely,


Sherrie Stone

sherriestone4you@aol.com

How to Build an Execution Chamber

By Dan Gorenstein on Tuesday, March 18, 2008.

listen:

The New Hampshire Department of Corrections has a lot of work to do.

The federal government is requiring New Hampshire to execute convicted murder Gary Sampson.

And Attorney General Kelly Ayotte is seeking the death penalty in the murder cases against Michael Addison and John Brooks.

But right now the state doesn’t have a place to put people to death- it doesn’t even have a death row.

New Hampshire Public Radio’s Dan Gorenstein looks into just what New Hampshire must do to prepare.

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When it comes to capital punishment, the state doesn’t seem to have a lot of institutional knowledge, or infrastructure for that matter.

Corrections Department spokesman Jeff Lyons recently showed me where the Men’s Prison in Concord may have housed and executed prisoners 70 years ago.

I say may have, because no one seems to know for sure anymore.

Sfx: walking, door sounds

DG: He leads me past the prison canteen on to a hallway 30 ft long with 6 old cells along the right wall.

T.40
JL: 3:05...you can see, bricks on the side of the wall, cement on the floor, wood on the doors, you can see the remains of what used to be hinges...

T.40
JL: 5:49.... there was some kind of door there...it’s large enough for one person, no ventilation, no windows.

DG: It’s a little difficult to imagine the last person the state executed, back in 1939, living in one of these tight, dark cells.

T.40
JL and DG: 3:57...currently they are used for storage for our canteen...(cases and cases of Sierra Mist)....in this particular one, yes...in other ones you will see other items stored.

Sfx: walking (keep this up through next two graphs)

DG: As we walk along I see a make shift sign taped to one of the wood frames, ‘#6 archive boxes, ice cream spoons and fireballs.’
From here, a death row inmate would have walked another 50 feet or so, and wound up in a room where inmates now lift weights.

T.44
JL: 2:45...we are looking at a wooden floor and a piece of plywood that is nailed down or something. (knocking). This is what tradition suggests, the executions may have been carried out, dropped through the trap door.

DG: Back then, the state used to execute people by hanging.

Lyons says below the bolted trap door, it’s a good 10-15 foot drop.

Sfx: outside

DG: Just as prison officials don’t know for sure where they last executed an inmate, they don’t know where they would execute the next one.

T.39
JL: 2:34...well that’s something to be figured out. We are in the very preliminary stages of that whole process.

DG: And there’s no particular hurry.

Four years ago, a federal judge ordered New Hampshire to execute a convicted murderer.

The appeals could take years, so it’s understandable the state is only now looking into the matter.

But where do states turn to for advice on execution facilities?

Deborah Denno: 1:34 there’s not an industry or a company that specializes in lethal injection or execution methods...Johnson and Johnson is not going to get into the execution method construction business.

DG: That’s Fordham law professor Deborah Denno.

She has conducted two national surveys on state’s execution procedures.

Denno says...states consult states...often copying protocols and layouts from each other.

But corrections officials don’t seem to like to talk about this side of their work.

The Connecticut Department of Correction, which recently built an execution chamber, didn’t return calls.

The Virginia Department of Corrections, which some consider a model, didn’t respond.

The Federal Bureau of Prisons, scheduled a training seminar on the subject for states last spring.

But officials there would not speak for this story.

They wouldn’t even confirm if the seminar took place.

U.S. District Judge Jeremy Fogel of the Northern District of California says historically state just don’t talk about this.

Jeremy Fogel: 3:20...one thing that is consistent is that...there hasn’t been a lot of sunlight on these things. They are considered to be in large part confidential or secret procedures.

DG: Fogel is presiding over a case that challenges California’s execution chamber and protocols.

Jeremy Fogel:...only the recent litigation has brought some of that to light. So there is a shroud of secrecy as to what the states actually do.

DG: It turns out...New Hampshire has reached out to a number of other states for advice.

But the Attorney General’s Office would not discuss the protocols its considering for the DOC.

States have been taken ot court over their execution methods.

So New Hampshire needs to be careful who it consults.

Some observers suggest the state read Judge Fogel’s 2006 order to the California Department of Corrections and Rehabilitation.

Berkeley-based lawyer Elisabeth Semel says it’s a guide of what not to do.

Elisabeth Semel: 19:24 Judge Fogel identified at least four crucial deficiencies in the implementation of the state’s lethal injection....

DG: Those include unreliable screening and training of execution team members, poor record keeping, and infrastructure problems.

Elisabeth Semel:....Inadequate lighting, over crowding, poorly designed conditions in which members of the team unable to...assess whether the inmate was properly anesthetized throughout the process.

DG: The California Department of Corrections and Rehabilitation has used this order and visits to other state and federal institutions to make improvements.

$850,000 dollars later, California has built the newest execution chamber in the country at San Quentin Prison.

Whatever model New Hampshire chooses say the state should keep in mind two basic principles.

First, top officials should discuss and scrutinize the process, no matter how unpleasant.

Second, don’t create a system in which there’s an unacceptable degree of risk that the inmate will suffer.

Judge Fogel says New Hampshire is getting into this just as the ground rules are changing.

Jeremy Fogel: 40:15...the process of how we carry out executions has never been examined as closely as it is being examined now. Whatever the situation has been historically, these things have happened out of the public eye, out of the public consciousness, that’s not the case anymore.

DG: Fogel says society is starting to demand the process of executing someone reflect the gravity of the act.

The New Hampshire Department of Corrections says whatever it does; it won’t do it until the Supreme Court rules on the constitutionality of lethal injections later this year.

For NPR News, I’m DG in Concord, NH.

Georgia Supreme Court to Troy Davis: Innocence doesn't matter

Decision in Davis v. State is here.

http://www.gasupreme.us/pdf/s07a1758.pdf

In a sharp 4-3 decision the Georgia Supreme Court denies relief. The evidence of innocence comes too late.

For the reasons set forth below, we conclude that the trial court did not abuse its discretion in denying Davis’s extraordinary motion for new trial without first conducting a trial.. . .

Davis’s extraordinary motion for new trial relied primarily on affidavit testimony consisting of four types, recantations by trial witnesses, statements recounting alleged admissions of guilt by Coles, statements that Coles disposed of a handgun following the murder, and an alleged eyewitness account.

As the Chief Justice notes in dissent:

I believe that this case illustrates that this Court’s approach in extraordinary motions for new trials based on new evidence is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death.

We have noted that recantations by trial witnesses are inherently suspect, because there is almost always more reason to credit trial testimony over later recantations. However, it is unwise and unnecessary to make a categorical rule that recantations may never be considered in support of an extraordinary motion for new trial. The majority cites case law stating that recantations may be considered only if the recanting witness’s trial testimony is shown to be the “purest fabrication.”3 To the extent that this phrase cautions that trial testimony should not be lightly disregarded, it has obvious merit. However, it should not be corrupted into a categorical rule that new evidence in the form of recanted testimony can never be considered, no matter how trustworthy it might appear. If recantation testimony, either alone or supported by other evidence, shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically.

Demand Clemency for Troy Davis

Troy Davis, a man who may well be innocent, faces execution. Call on the Georgia Board of Pardon and Paroles to commute the death sentence for Troy Davis!

Today's stunning decision by the Georgia Supreme Court to let the death sentence stand in the Troy Anthony Davis case means that the state of Georgia might execute a man who well may be innocent.

Take action now and tell the Georgia Board of Pardon and Paroles to commute the death sentence for Troy Anthony Davis.

With this decision, the Supreme Court is demonstrating a blatant disregard for justice and turning its back on the fundamental flaws that taint Mr. Davis's case at every level.

Tell the Georgia Board of Pardon and Paroles to commute the death sentence for Troy Anthony Davis.

Over 60,000 supporters signed petitions on Troy's behalf, and letters of support continue to pour into his mailbox. "I want to thank all Amnesty supporters," he said, "I want to thank everyone all over the world who have been praying for me, supporting me, writing letters and signing petitions on my behalf." Troy needs your continued support today, now more than ever.

Troy Davis was convicted of the murder of Savannah police officer Mark MacPhail in 1991. No murder weapon was found and no physical evidence linked Davis to the crime. Since his conviction, seven out of nine original witnesses have either recanted or changed their testimony. Officer MacPhail's life was cut tragically short, and his family and the people of Georgia also deserve true justice. However, this will not be accomplished by executing a man with such strong claims of innocence.

Take action now: help rescue a possibly innocent man from paying the ultimate price.

In light of today's Supreme Court decision, we ask that you call on the Georgia Board of Pardon and Paroles to commute Mr. Davis' death sentence. Executing Troy Anthony Davis would be an irrevocable error that would haunt the conscience of the state of Georgia forever.

In Solidarity,

Sue Gunawardena-Vaughn
Director, Death Penalty Abolition Campaign
Amnesty International USA

The Torture of Sami Al Arian

The Torture of Sami Al Arian

Date Posted: Tuesday, March 11, 2008

http://www.masnet.org/views.asp?id=4941

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PITTSBURG (JURIST) March 11, 2008 - Guest Columnist Peter Erlinder of William Mitchell College of Law, attorney on appeal for Dr. Sami Al Arian, says that the treatment accorded the acquitted but still detained academic Palestinian activist from Tampa - now on hunger strike and in danger of irreversible renal failure at a federal prison hospital - is abuse of power amounting to torture taking place in the United States itself under the aegis of the Bush Administration and its "war on terror"...

The storm of criticism that followed George Bush’s weekend veto of Congressional limits on the CIA’s use of torture might lead to the conclusion that, reprehensible as "torture" might be in remote, secret CIA locations, it could never happen here in the US. But the Bush administration’s abuse of power in its treatment of Dr. Sami al Arian and other acquitted Palestinian "terrorism-defendants" has already demonstrated that "torture" for this administration is commonplace - even here.

In December 2005, a Tampa jury acquitted Dr. Al Arian of "terrorism" charges. Two years later he is still in prison, and in the 6th day of a hunger-strike because the Bush administration refuses to honor a May 2006 promise to release and deport him. Unless he receives proper medical care within days, he risks irreversible renal failure and death - all under the watchful eyes of the Bush "Justice" Department.

Apparently, "legal black holes" like Guantanamo can be created without having to set-up a special overseas prison, if domestic law can be sufficiently manipulated. And the Bush administration is very, very good at manipulation, both legal and otherwise.

A Propagandized Arrest and Pre-Trial Torture

In a February 2003 Moscow press conference, then Attorney-General John Ashcroft breathlessly announced the FBI capture of "the major North American financier for terrorism in the middle-east", in Tampa, Florida, of all places. Ashcroft pointed proudly to obviously, pre-arranged media coverage of a shackled Dr. Sami Al Arian being taken from his home by a SWAT team, with his children cowering in the background.

The images were a lot like those of US troops and cowering Iraqi women. But this was not Iraq, or Afghanistan. And Dr. Al Arian was never even suspected of any violence. He was a well-known and well-respected academic and Palestinian activist, and that, the jury concluded more that 2 years later, had been his only "crime."

For more than a year before trial, Dr. Al Arian was in Super-Max isolation on 24/7 lockdown. He was denied family visits and was chained whenever he was out of his cell, even to talk to his lawyers. Super-Max prisoners are usually only convicts too violent to live in the general prison population, criminals among criminals. But the Bush administration put Dr. Al Arian in the Super-Max, hundreds of miles from his family, even before the final charges against him had been decided, and without even accusing him of being violent. It was...torture.

On top of Guantanamo-like conditions, Dr. Al Arian was denied warm clothing, writing materials and was subject to taunting guards, convinced by Bush administration propaganda that he was a second Osama bin Laden. Things got so bad that the Justice Department Inspector General is investigating abuse by guards. A UN body formally objected to his conditions of confinement before trial.

By the beginning of trial in July 2005, the original 200 charges against Dr. Al Arian and his 3 co-defendants were reduced to eliminate any mention of the accusations leveled by Ashcroft. But the remaining 94 "terrorism-related" counts could result in the death penalty or life in prison, including the 17 counts facing Dr. Al Arian, if he had been convicted. But he wasn’t convicted, and neither were any of his co-defendants.

Trial By Jury: Still a "Bulwark" Against Government Abuse

After hearing 6 months of evidence, including 80 witnesses; hundreds of hours of FISA wiretaps culled from 425,000 conversations recorded over 10 years; testimony of Israeli intelligence agents; heart-wrenching testimony of Israeli suicide bombing victims; graphic video of suffering bombing victims; and more than $50 million in taxpayer money being thrown at the case, the jury refused to find any of the defendants guilty of anything!

Dr. Al Arian’s lawyers, Linda Moreno and Bill Moffett, did not call one witness or put on one piece of evidence. The defense was the First Amendment right to free speech and the lack of any connection between Dr. Al Arian’s lawful support for the Palestinian struggle in the U.S. and the tragic violence connected to Israel’s illegal occupation of Palestine.

On December 2005 TIME Magazine called Dr. Al Arian’s acquittal "the biggest defeat for the Bush Administration to date" [1], and so it was. It was also a victory for the United States Constitution. The Tampa jury upheld the best traditions of our Sixth Amendment right to a jury trial, that is supposed to be a "bulwark" against misuse of governmental power.

For a while it seemed that the Constitution was actually working the way it was supposed to, but the Bush administration made sure that this illusion did not last for long. Within days, the administration said they were going to re-try Dr. Al Arian on the lesser charges on which the jury "hung" 10-2 for acquittal. Re-trial is not illegal, but highly unusual when the evidence was so clearly rejected by the jury.

But at the same time the Bush administration was telling the world they would try Dr. Al Arian again, they secretly approached Al Arian’s lawyers with "an offer he couldn’t refuse" in early 2006 to avoid government being embarrassed by another acquittal.

Setting the Trap: "An Offer He Couldn’t Refuse"

The Bush-administration promised to: (a) drop all charges; (b) release Dr. Al Arian in 30 days; and (c) assist in deporting him to country of his choice, immediately upon his release. Compared to the death penalty or life in prison that he had been facing weeks earlier, it was a difficult offer to turn down but he did precisely that, because there were a couple of "catches" he and his lawyers refused to accept.

First, he would have to plead guilty to a crime, and he had not committed any crimes. Second, the standard Tampa plea-agreement had a "grand jury co-operation" clause, and Dr. Al Arian would not agree to either. The Bush administration panicked and sweetened their offer.

If Dr. Al Arian would only admit having helped his brother-in-law with immigration matters, and not telling a reporter about a colleague’s political associations, both of which were true, and neither of which were crimes, the Bush-administration would agree call the legal, non-violent acts evidence of a "conspiracy," and recommend his release by the end of May 2006.

But Dr. Al Arian and his lawyers still said "no-deal" because he absolutely refused to "co-operate" with a Bush Justice Department that had set him up and prosecuted him for political reasons. So the Bush-administration "blinked" again, because they needed to avoid another embarrassing defeat.

This time, they removed the "grand jury co-operation" requirement because, as they admitted in court, it was only way to get his name on the dotted line. They also admitted, in court on April 14, that the terms of their agreement with Al Arian had been approved in Washington, D.C. and specifically applied to Alexandria, Virginia, the federal district where most of the Pentagon’s employees live and a favorite place for grand-jury "terrorism" investigations.

The "Trap" Begins to Close

But when Dr. Al Arian appeared in court on May 1, 2006, expecting the agreement to become final, and to be released before the month was out, the game changed. Judge James Moody agreed to immediate deportation (which means neither the judge or the Bush-administration considered him dangerous) and all other charges were dropped. Instead of time-served release and deportation, the judge sentenced him to the constitutional maximum sentence, another year in prison, and read a prepared statement publicly declaring him guilty of "killing women and children in Israel."

In essence, the judge convicted Dr. Al Arian of the same violent offenses that the jury had rejected. Several of the jurors went public after the sentencing hearing expressing outrage that the judge had ignored their verdict. So much for the Sixth Amendment.

Instead of beginning a new life in May 2006, as the Bush Administration led him to believe would happen, Dr. Al Arian would be in prison until April 2007. But there was no reason to think that the Bush administration was actually manipulating the legal system...yet.

The Bush Administration’s Post-Acquittal "Torture-Strategy"

On May 10, 2006 the "trap" snapped shut when the Assistant U.S. Attorney in Alexandria sought a secret order calling Dr. Al Arian before the very Alexandria grand jury that the Tampa prosecutor said had been covered by the "no grand jury cooperation" agreement. Neither Dr. Al Arian nor his lawyers knew about the secret order until October 2006, when AUSA Gordon Kromberg informed them Dr. Al Arian would be brought before the grand jury - during Ramadan.

When Dr. Al Arian appeared before the grand jury and relied on the "no-grand jury cooperation" promise, Judge Lee held him in contempt of court, and he was in contempt detention until December 2007, when the grand jury expires, which effectively extended original May 2006 release until April 7, 2008, two years after the Bush administration promised he would be released and deported.

Last Week: Another Turn of the Screw

On March 3, 2008 AUSA Kromberg turned the torture screw up another notch, when Dr. Al Arian was brought back to court and informed that he would be called before yet another grand jury on March 19, 2008, this time only 3 weeks before his latest release and deportation date. If he insists on the Bush administration respecting its "no-grand jury cooperation" promise again, he is likely to be held in contempt again, which will effectively cancel the April release date and extend his time in prison again…indefinitely. And, he has to insist on it because terms of the plea agreement "contract" are still on appeal, a Catch-22, if there ever was one.

But, there is a more sinister manipulation in the works. AUSA Kromberg has charged other acquitted Palestinian defendants with perjury, when they did testify before his grand jury. Other acquitted Palestinian defendants have been charged with "obstruction of justice," when they declined. Dr. Al Arian’s lawyer, George Washington Univesity law professor Jon Turley has said that Kromberg is "setting up Al Arian for a perjury/obstruction trap." The other acquitted Palestinian defendants facing the same "Hobson’s choice" have been given "terrorism-enhanced" sentences of 5 to 10 years whether they answered grand jury questions or not after American juries already acquitted them of the underlying charges. Imprisoned for a decade after being acquitted certainly could be called "torture", or at least "Kafka-esque."

Neither Alberto Gonzalez, nor "General Mukasey" (as he apparently referred to in White House circles) have done anything to rein in this misuse of prosecutorial power, but neither have the Courts nor the Democrat-controlled Senate and House Judiciary Committees even though both Chairmen, Sen. Leahy and Cong. Conyers, were made aware of this blatant manipulation of prosecutorial power, for apparently political purposes, more than a year ago.

Dr. Al Arian’s Last Protest Fast

But now, the Bush administration, the Courts and Congressional oversight committees have a chance to intervene. On March 4, 2008, the day after the "perjury/obstruction" trap was sent by Kromberg, Dr. Al Arian began a complete food and water fast to protest, in the only way he can, the perfidy of the Bush administration, and the "torture" caused by its rejection of the constitution and abuse of its power.

This is Dr. Al Arian’s third hunger-strike during his 5 years of imprisonment. The first was in 2005 and lasted 140 days on liquids only, before he was permitted the lawyers of his choice. In early 2006 he drank only water for 60 days, when the court refused to require the Bush-administration to honor their "no grand jury cooperation" promise, the first time. Now, he is refusing all food and liquids was transferred to the prison hospital on March 5. But he is not getting necessary medical treatment.

As of Monday, March 10, Dr. Al Arian has not received any intravenous liquids, and he is in danger of irreversible renal failure - yet another kind of torture, that could be ended with proper medical care. If Dr. Al Arian dies, AUSA Kromberg will have accomplished his stated "mission", so the question is, will anybody else respond, before it is too late?

End the Torture of Dr. Al Arian Now!

Between now and his April 7, 2008 release/deportation date, Kromberg will have to bring Dr. Al-Arian before the grand jury on a stretcher, kept alive by IV’s, assuming he receives proper treatment in the next day or two. Unless, of course, the Congress, the Courts or Mukasey put an end to the torture he has so far been subjected to. While Mukasey or Bush could release Al Arian with the stroke of a pen. Bush's veto of the torture limitation bill is an indication that Dr. Al Arian’s own torture will not be ended without the intervention of the Congress, the Courts, or the American people.

The torture of Dr. Al Arian is not "water-boarding," nor the "enhanced interrogation techniques" that Bush says is now part of America’s regular way of doing business…but it is "torture" nonetheless. The Bush veto on Saturday demonstrates the Bush-Cheney "war on terror" is not really about terrorism at all, but is a politically-motivated assault directed against the constitution and the rule of law.

A government that is unwilling to publicly renounce torture committed in its name, and in the name of the American people, is capable of doing anything, to anybody, at any time, and the Al Arian case is a prime example of a lawless regime displaying itself to the world.[2] The Al Arian case is not law, it is politics...and torture. It is time for Congress, the Courts and the American people to put an end to the legal torture of Dr. Al Arian, now.

Release him!

(c) 2008 Peter Erlinder.

Notes

[1] TIME Magazine, December 19, 2005, "When Terrorism Charges Just Won’t Stick"

[2] The Al Arian case is the subject of USA v. Al Arian, awarded the prize for best documentary at the Nordic Film Festival in 2007, which is being shown in film festivals and other venues worldwide.

Peter Erlinder is a professor at William Mitchell College of Law, St. Paul, MN and attorney on appeal for Dr. Sami Al Arian in appeals to the US 4th Circuit, the 11th Circuit and the Supreme Court of the United States - all of which have declined to intervene in his case. E-mail peter.erlinder@wmitchell.edu

Ailing death row inmate gets appeal hearing Thursday

Ailing death row inmate gets appeal hearing Thursday Posted: 8:33 AM Feb 28, 2008 Last Updated: 8:35 AM Feb 28, 2008 0 comments http://www.volunteertv.com/home/headlines/16069512.html

A | A | A NASHVILLE, Tenn. (AP) -- A hearing for ailing death row inmate Paul House will be held Thursday in federal court. U.S. District Court Judge Harry Mattice Jr. will consider whether House will be released pending his appeal. The U.S. Supreme Court ruled in 2006 the jury that convicted House of killing a Union County woman did not hear testimony that could have exonerated him. House, 46, who has multiple sclerosis and is in a wheelchair, was sentenced to death after he was convicted of the 1985 murder of Carolyn Muncey, a young mother who lived near him in rural Luttrell, about 25 miles north of Knoxville. ------ Information from: The Tennessean, www.tennessean.com

Faulty bullet-test cases finding way to court

2008 National Law Journal Online
Page printed from: http://www.nlj.com

Back to Article

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CRIMINAL LAW

Faulty bullet-test cases finding way to court

Vesna Jaksic / Staff reporter
February 25, 2008


Martin Mcclain, a defense lawyer in Florida, says his client is on death row in large part due to unreliable science.

Derrick Smith was found guilty of a 1983 homicide in a trial involving "bullet lead analysis," a method the FBI acknowledged in 2005 is invalid. Florida v. Smith, No. 83-02653-CFANO-I (Pinellas Co., Fla., Cir. Ct.).

His case is a prime example of the kind that a new task force wants reviewed in hopes of reversing any wrongdoing that may have resulted from the faulty test. [NLJ, 4-4-05.]

"We're passing that [case] to the FBI and asking them to look at it immediately," said Barry Scheck, one of the two coordinators of the Joint Comparative Bullet Lead Analysis Task Force, which was formed last November by the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Network, a group of organizations providing services to those seeking to prove their innocence.

It looks like Smith will have plenty of company. Several years after the FBI admitted the bullet analysis test was invalid, cases in which the evidence played a central part are making their way through the courts. Also, FBI officials confirmed that they have identified cases involving the faulty testing from as far back as the 1970s.

Pro bono commitments

The task force is lining up pro bono commitments from several law firms to handle the cases. Those firms include New York's Fried, Frank, Harris, Shriver & Jacobson; Chicago's Winston & Strawn; and New York's Skadden, Arps, Slate, Meagher & Flom.

"Once these cases are identified, we're going to be working with law firms who will be providing pro bono services to review these cases," said Norman L. Reimer, NACDL's executive director.

David Koropp, a partner in the Chicago office of Winston & Strawn, said his firm is willing to offer as much of a pro bono commitment as necessary.

"It was something we thought we could bring the strength of a large law firm to," he said. "You're going to need a lot of people to review a lot of material."

Scheck expressed concern about identifying cases that date back as far as Smith's because they may lack documentation.

But special agent Ann Todd, a spokeswoman for the FBI laboratory, said the agency has already identified a few cases from the mid-1970s.

"FBI is in the process of identifying lab reports for all bullet lead examinations that resulted in matches and were used in successful prosecutions," she said, adding the agency will not have more detailed information until several months from now.

Last year, the FBI said it conducted bullet lead examinations in about 2,500 cases, but that results were introduced as trial evidence in less than 20% of them.

Compositional analysis of bullet lead or CABL — which is also called comparative bullet lead analysis or CBLA — tests the structure of a bullet used in a crime and matches it with others manufactured at the same time. The test raised major concerns in 2004, when the influential National Academy of Sciences cast doubt on it in a report. After its own review, the FBI announced in 2005 it would discontinue using such tests.

A 1990 shooting

McClain of Wilton Manors, Fla.'s McClain & McDermott, said he recently filed a motion in Smith's case for a rehearing and is awaiting a decision. Smith was convicted of murdering a Florida cab driver in 1990. In November, the court denied Smith's motion to vacate his conviction, but McClain is now arguing that Smith's conviction is constitutionally unreliable because of invalid evidence.

Glenn Martin, one of the prosecutors in the case, did not return calls seeking comment.

Some criminal defense lawyers said it is too early to say how cases involving bullet lead analysis will be handled.

"The problem is ultimately what the courts are going to do about it and if they favor finality over reliability, than ultimately it will do the defendants no good," said Suzanne Drouet, assistant public defender for the Maryland Innocence Project, a division of the state's Office of the Public Defender.

Drouet is representing James Kulbicki, a former police sergeant who was convicted of first-degree murder in 1995. Drouet said bullet lead analysis was used to connect Kulbicki's off-duty firearm to the murder weapon. Kulbicki v. Maryland, No. 93-CR-0530 (Baltimore Co., Md., Cir. Ct.). S. Ann Brobst, assistant state's attorney in Baltimore, did not return calls for comment.

An important case on the issue has already emerged in her state. In 2006, Maryland's high court, the Court of Appeals, reversed the murder conviction of Gemar Clemons and ordered a new trial as a result of invalid bullet lead analysis evidence. Clemons v. Maryland, No. 70, September term 2005 (Md.).

Paul Casteleiro of The Law Office of Paul Casteleiro in Hoboken, N.J., who is appealing another case involving bullet lead analysis, said that, while the tests have proven invalid, courts will likely tackle the issue on a case-by-case basis.

He is representing Michael S. Behn, who was convicted of a 1995 murder based in part on expert testimony on bullet lead analysis. State v. Behn, 375 N.J. Super. 409 (N.J. App. Div.).