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Sunday, August 21, 2011
intelekshul (twitter)
www.standarddeviations.blogspot.com
Paradise Lost Just South Of Somewhere, USA
“…Here everybody has a neighbor
Everybody has a friend
Everybody has a reason to begin again
My father said "Son, we're lucky in this town,
It's a beautiful place to be born.
It just wraps its arms around you,
Nobody crowds you and nobody goes it alone
You know that flag flying over the courthouse
Means certain things are set in stone
Who we are, what we'll do and what we won't"
It's gonna be a long walk home
Hey pretty darling, don't wait up for me
Gonna be a long walk home…”
“Long Walk Home,” by Bruce Springsteen
Stunning acts of injustice overturned by stunning acts of justice are not usual. Not in Midnight Express-like places, not here in the USA. As Americans, we somehow are lulled into the belief that, despite our hold on reason, this country is the Land of the Ideal. This notion has been tested many, many times, but never as it was on September 11, 2001. I know my beliefs of our invincibility were so rooted in my unconscious that when we were attacked, I was tested to the point of insanity: this could not have happened to us, TO AMERICA. I could not wrap my mind around the enormity of that day. Still can’t. I obsessively watched the coverage. I downloaded 600 pages about Osama Bin Laden the night of. I thought Muhammad Atta was in my basement. I shook like a leaf and my teeth chattered as I tried to go to sleep, fighter jets flying across my New York sky. This could not have happened to us, to America, the United States, my country. But, it did. And, forever after that day my innocence, my iron-clad unconscious, was shattered. To be sure, many others have been shattered by events that never, thank God, touched my life: kidnapping, murder, wrongful imprisonment, et al. The jolt of unbelievable trauma leaves us as perceptibly different as the New York skyline without the Twin Towers. What is imperceptible, though, is even worse.
The United States of America, a true love of mine, is not ideal. Well, to be sure, no place in the world is ideal. There is no such reality as “the ideal.” There is no such thing as perfection. Scarier still, in a land more ideal than many, many others, when you look closer, you find we make pretty glaring mistakes, miscalculations, miscarriages of justice. And, not just once in a blue moon. This past Friday, three men who were wrongfully accused of murdering three boys in West Memphis, Arkansas, were released after 18 years of wrongful imprisonment, and only because of a virtual army of people, I among them, who fought all these years for their release. My awareness came after watching a documentary about the case some 15 years ago or so. Had it not been for those film-makers, I don’t know if I, or any number of others, would ever have known about the “West Memphis 3.” Paradise Lost: The Murders at Robin Hood Hill stoked my outrage. I am grateful for that. At the press conference following an “Alford Plea,” whereby innocent people get to go free after they plead guilty while maintaining their innocence so an asinine state can save face and not be sued—it is very confusing and paradoxical, I know (I have included, at the end of this post, some legal information and definition of the Alford Plea*)—the men declared that there are many others who are wrongfully imprisoned, and that we should not forget that. They considered themselves lucky for film-makers to have taken notice and have made a film that made an army that made a backwards, southern state do what no one expected a backwards, southern state to do: provide for the release of three men, who, when just boys themselves, poor and offensive to the “mainstream” hicks, were railroaded into prison, and one to death row, by a criminal Arkansas judicial system, which tampered with the jury, offered up no evidence, and suppressed evidence that could have led to exoneration. They felt lucky. It was this graciousness that made the long-awaited moment even more moving.
So, now that the news abounds with stories about the West Memphis 3, more sickening miscarriages of justice are being published. This morning, after checking out #DonnaBrazile ’s recommendation of a story covered in The New Yorker magazine, I found myself lost in the common indecency of yet another case; only, in this one, the wrongfully accused was executed, after exonerating evidence and corrective scientific analyses were brought to the attention of one Rick Perry, governor of the state of Texas, and newly minted presidential candidate, who was the only person who could have granted a stay of execution, or commuted a sentence. Even Dubya, while governor of Texas, exonerated a death row inmate when confronted with the awful evidence that a man was wrongfully imprisoned, and almost executed. If you know anyone thinking about voting for Perry, they must read “Trial by Fire,” by David Grann, The New Yorker magazine, September 7, 2009. Flames almost shot out of my head when I read it. How can a man, who can so easily put another to death without even giving a cursory glance at the new evidence sent him, seek to be president of the United States? This is the man who held the pray-in a couple of weeks ago. This is the fierce, devoted Christian. I guess Mr. Perry, you never got up to Matthew 25:40 that says, and I paraphrase, “That which you do for the least among us, you do for Me;” and in so doing, God says you get to go to Heaven … HOWEVER, if you do not do so, Mr. Perry, you get to go further south than your state, understand? So, now if you would please just go to Hell…You know, Mr. Perry, that flag flying over the court house? It means certain things are set in stone, like who we are, what we’ll do, and what we won’t. Like, Mr. Perry, protecting and defending the least among us—see the Constitution, the one you want to swear to uphold, protect, and defend in some fantastical inauguration, one that should ONLY take place in YOUR fantasies…so, start walking, Mr. Perry, after what you have done, it is going to be a long walk home for you, BUT, I will do anything, everything I can to be sure you don’t lead our country any further on down the road away from justice and the tenets of the America I want to live in…
I know bad things happen everywhere. I do not want to offend the southern states. I just know that the northeastern U.S. has been called the “Liberal Corridor.” That is not meant to be a compliment. The “L word” has long been demonized by a growing conservative movement; however, I take it to mean that we, here in NYC, do not set hard, fast boundaries around everything for everyone. We tend to allow for more individuated opinions and positions. I would like to note, too, that the same could be said for the “blue dot” in the red state of Texas, that being Austin. Same for areas in just about every state. I guess you could say, “We are everywhere.” That gets the conservatives in an uproar. See, we “liberals” would rather do no harm than to harm by imposing our own positions on everyone. The arguments are too numerous and tedious to get into here. And, I do not like labels because they never adequately define. I just know that statistics are damning evidence and the statistics on executions show the southern states, in the aggregate, have a greater number of inmates on death row, and have performed a greater number of executions than the mid-west or northern states. That is why the policies in the south and having a southerner like Rick Perry trying for the presidency are disconcerting. If Perry wants to preside over Paradise Lost, let him. They’re waiting for you way down there, Mr. Perry…BUT, not in my America.
In order to keep #RickPerry, or #MicheleBachmann, or any other miscreant out of our Whitehouse, I know I have to be ready for a marathon. I invite all of you to start walking with me. President Obama, that means you, too.
************
*The Law of Nolo Contendere and Alford Pleas
“At common law, a defendant could ask the court to impose a merciful sentence without confessing guilt and without estopping himself from later pleading not guilty on the same facts. In modern times, this became the formal plea of nolo contendere, which admits guilt for purposes of the present case but creates no estoppel. Today, the Federal Rules of Criminal Procedure allow defendants to plead nolo contendere with the permission of the court. Most states likewise allow nolo contendere pleas (sometimes called no contest), though in many states these pleas require the court's consent.
Defendants now have another way to plead guilty without admitting guilt: the Alford plea. Henry Alford was charged with first-degree murder, a capital crime, and faced strong evidence of guilt. Rather than going to trial, he pleaded guilty to second-degree murder, a non-capital crime, while protesting his innocence. In North Carolina v. Alford, the Supreme Court held that defendants may knowingly and voluntarily plead guilty even while protesting their innocence. The Court noted that judges must find a sufficient factual basis before accepting these pleas, but the State provided one here. It put on two incriminating witnesses, who testified that Alford had left his house with a gun saying he would kill the victim and had returned saying he had killed the victim. The Court also noted that Alford's plea was like a plea of nolo contendere. If defendants can plead nolo contendere while refusing to admit guilt, the Court saw no reason to bar Alford from pleading guilty while protesting his innocence. The Court also suggested that Alford's decision to plead was a reasonable choice to cap his maximum sentence and that courts should honor this choice. While these pleas are not forbidden by the Constitution, neither are they required. Because defendants have no right to plead guilty, judges may refuse to accept Alford pleas, or states may forbid them by statute or rule. Most states have followed suit and permitted Alford pleas (sometimes called best-interests pleas).
Note that there are two main differences between Alford and nolo contendere pleas: First, nolo contendere pleas avoid estoppel in later civil litigation, while Alford pleas do not. Second, defendants who plead nolo contendere refuse to admit guilt, while Alford pleas involve affirmative protestations of innocence. By and large, however, Alford is simply a new extension of the age-old nolo plea. The timing of this expansion of the law three decades ago may be no coincidence. Alford fit well with the modern liberal emphasis on freedom of contract, autonomy, and informed choice.
First, the law has long allowed defendants to plead nolo contendere. This means that they refuse to admit guilt but accept punishment as if guilty. More recently, the Supreme Court has approved so-called Alford pleas, in which defendants plead guilty while simultaneously protesting their innocence. Far from criticizing these practices, Judge Frank Easterbrook and most other scholars praise these pleas as efficient, constitutional means of resolving cases. Even Albert Alschuler, a leading critic of plea bargaining generally, supports Alford pleas. He views them as a lesser evil, a way to empower defendants within a flawed system. As long as we have plea bargaining, he maintains, innocent defendants should be free to use these pleas to enter advantageous plea bargains without lying.
I dispute this conventional wisdom. Alford and nolo contendere pleas, I contend, are unwise and should be abolished. These procedures may be constitutional and efficient, but they undermine key values served by admissions of guilt in open court. They undermine the procedural values of accuracy and public confidence in accuracy and fairness, by convicting innocent defendants and creating the perception that innocent defendants are being pressured into pleading guilty.”
From: "Harmonizing Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendre Pleas, " by Stephen Bilbas
(Originally published in the Cornell Law Review, Volume 88, Number 6, July 2003. Republished with the author's permission on pbs.org.)
intelekshul (twitter)
www.standarddeviations.blogspot.com
Paradise Lost Just South Of Somewhere, USA
“…Here everybody has a neighbor
Everybody has a friend
Everybody has a reason to begin again
My father said "Son, we're lucky in this town,
It's a beautiful place to be born.
It just wraps its arms around you,
Nobody crowds you and nobody goes it alone
You know that flag flying over the courthouse
Means certain things are set in stone
Who we are, what we'll do and what we won't"
It's gonna be a long walk home
Hey pretty darling, don't wait up for me
Gonna be a long walk home…”
“Long Walk Home,” by Bruce Springsteen
Stunning acts of injustice overturned by stunning acts of justice are not usual. Not in Midnight Express-like places, not here in the USA. As Americans, we somehow are lulled into the belief that, despite our hold on reason, this country is the Land of the Ideal. This notion has been tested many, many times, but never as it was on September 11, 2001. I know my beliefs of our invincibility were so rooted in my unconscious that when we were attacked, I was tested to the point of insanity: this could not have happened to us, TO AMERICA. I could not wrap my mind around the enormity of that day. Still can’t. I obsessively watched the coverage. I downloaded 600 pages about Osama Bin Laden the night of. I thought Muhammad Atta was in my basement. I shook like a leaf and my teeth chattered as I tried to go to sleep, fighter jets flying across my New York sky. This could not have happened to us, to America, the United States, my country. But, it did. And, forever after that day my innocence, my iron-clad unconscious, was shattered. To be sure, many others have been shattered by events that never, thank God, touched my life: kidnapping, murder, wrongful imprisonment, et al. The jolt of unbelievable trauma leaves us as perceptibly different as the New York skyline without the Twin Towers. What is imperceptible, though, is even worse.
The United States of America, a true love of mine, is not ideal. Well, to be sure, no place in the world is ideal. There is no such reality as “the ideal.” There is no such thing as perfection. Scarier still, in a land more ideal than many, many others, when you look closer, you find we make pretty glaring mistakes, miscalculations, miscarriages of justice. And, not just once in a blue moon. This past Friday, three men who were wrongfully accused of murdering three boys in West Memphis, Arkansas, were released after 18 years of wrongful imprisonment, and only because of a virtual army of people, I among them, who fought all these years for their release. My awareness came after watching a documentary about the case some 15 years ago or so. Had it not been for those film-makers, I don’t know if I, or any number of others, would ever have known about the “West Memphis 3.” Paradise Lost: The Murders at Robin Hood Hill stoked my outrage. I am grateful for that. At the press conference following an “Alford Plea,” whereby innocent people get to go free after they plead guilty while maintaining their innocence so an asinine state can save face and not be sued—it is very confusing and paradoxical, I know (I have included, at the end of this post, some legal information and definition of the Alford Plea*)—the men declared that there are many others who are wrongfully imprisoned, and that we should not forget that. They considered themselves lucky for film-makers to have taken notice and have made a film that made an army that made a backwards, southern state do what no one expected a backwards, southern state to do: provide for the release of three men, who, when just boys themselves, poor and offensive to the “mainstream” hicks, were railroaded into prison, and one to death row, by a criminal Arkansas judicial system, which tampered with the jury, offered up no evidence, and suppressed evidence that could have led to exoneration. They felt lucky. It was this graciousness that made the long-awaited moment even more moving.
So, now that the news abounds with stories about the West Memphis 3, more sickening miscarriages of justice are being published. This morning, after checking out #DonnaBrazile ’s recommendation of a story covered in The New Yorker magazine, I found myself lost in the common indecency of yet another case; only, in this one, the wrongfully accused was executed, after exonerating evidence and corrective scientific analyses were brought to the attention of one Rick Perry, governor of the state of Texas, and newly minted presidential candidate, who was the only person who could have granted a stay of execution, or commuted a sentence. Even Dubya, while governor of Texas, exonerated a death row inmate when confronted with the awful evidence that a man was wrongfully imprisoned, and almost executed. If you know anyone thinking about voting for Perry, they must read “Trial by Fire,” by David Grann, The New Yorker magazine, September 7, 2009. Flames almost shot out of my head when I read it. How can a man, who can so easily put another to death without even giving a cursory glance at the new evidence sent him, seek to be president of the United States? This is the man who held the pray-in a couple of weeks ago. This is the fierce, devoted Christian. I guess Mr. Perry, you never got up to Matthew 25:40 that says, and I paraphrase, “That which you do for the least among us, you do for Me;” and in so doing, God says you get to go to Heaven … HOWEVER, if you do not do so, Mr. Perry, you get to go further south than your state, understand? So, now if you would please just go to Hell…You know, Mr. Perry, that flag flying over the court house? It means certain things are set in stone, like who we are, what we’ll do, and what we won’t. Like, Mr. Perry, protecting and defending the least among us—see the Constitution, the one you want to swear to uphold, protect, and defend in some fantastical inauguration, one that should ONLY take place in YOUR fantasies…so, start walking, Mr. Perry, after what you have done, it is going to be a long walk home for you, BUT, I will do anything, everything I can to be sure you don’t lead our country any further on down the road away from justice and the tenets of the America I want to live in…
I know bad things happen everywhere. I do not want to offend the southern states. I just know that the northeastern U.S. has been called the “Liberal Corridor.” That is not meant to be a compliment. The “L word” has long been demonized by a growing conservative movement; however, I take it to mean that we, here in NYC, do not set hard, fast boundaries around everything for everyone. We tend to allow for more individuated opinions and positions. I would like to note, too, that the same could be said for the “blue dot” in the red state of Texas, that being Austin. Same for areas in just about every state. I guess you could say, “We are everywhere.” That gets the conservatives in an uproar. See, we “liberals” would rather do no harm than to harm by imposing our own positions on everyone. The arguments are too numerous and tedious to get into here. And, I do not like labels because they never adequately define. I just know that statistics are damning evidence and the statistics on executions show the southern states, in the aggregate, have a greater number of inmates on death row, and have performed a greater number of executions than the mid-west or northern states. That is why the policies in the south and having a southerner like Rick Perry trying for the presidency are disconcerting. If Perry wants to preside over Paradise Lost, let him. They’re waiting for you way down there, Mr. Perry…BUT, not in my America.
In order to keep #RickPerry, or #MicheleBachmann, or any other miscreant out of our Whitehouse, I know I have to be ready for a marathon. I invite all of you to start walking with me. President Obama, that means you, too.
************
*The Law of Nolo Contendere and Alford Pleas
“At common law, a defendant could ask the court to impose a merciful sentence without confessing guilt and without estopping himself from later pleading not guilty on the same facts. In modern times, this became the formal plea of nolo contendere, which admits guilt for purposes of the present case but creates no estoppel. Today, the Federal Rules of Criminal Procedure allow defendants to plead nolo contendere with the permission of the court. Most states likewise allow nolo contendere pleas (sometimes called no contest), though in many states these pleas require the court's consent.
Defendants now have another way to plead guilty without admitting guilt: the Alford plea. Henry Alford was charged with first-degree murder, a capital crime, and faced strong evidence of guilt. Rather than going to trial, he pleaded guilty to second-degree murder, a non-capital crime, while protesting his innocence. In North Carolina v. Alford, the Supreme Court held that defendants may knowingly and voluntarily plead guilty even while protesting their innocence. The Court noted that judges must find a sufficient factual basis before accepting these pleas, but the State provided one here. It put on two incriminating witnesses, who testified that Alford had left his house with a gun saying he would kill the victim and had returned saying he had killed the victim. The Court also noted that Alford's plea was like a plea of nolo contendere. If defendants can plead nolo contendere while refusing to admit guilt, the Court saw no reason to bar Alford from pleading guilty while protesting his innocence. The Court also suggested that Alford's decision to plead was a reasonable choice to cap his maximum sentence and that courts should honor this choice. While these pleas are not forbidden by the Constitution, neither are they required. Because defendants have no right to plead guilty, judges may refuse to accept Alford pleas, or states may forbid them by statute or rule. Most states have followed suit and permitted Alford pleas (sometimes called best-interests pleas).
Note that there are two main differences between Alford and nolo contendere pleas: First, nolo contendere pleas avoid estoppel in later civil litigation, while Alford pleas do not. Second, defendants who plead nolo contendere refuse to admit guilt, while Alford pleas involve affirmative protestations of innocence. By and large, however, Alford is simply a new extension of the age-old nolo plea. The timing of this expansion of the law three decades ago may be no coincidence. Alford fit well with the modern liberal emphasis on freedom of contract, autonomy, and informed choice.
First, the law has long allowed defendants to plead nolo contendere. This means that they refuse to admit guilt but accept punishment as if guilty. More recently, the Supreme Court has approved so-called Alford pleas, in which defendants plead guilty while simultaneously protesting their innocence. Far from criticizing these practices, Judge Frank Easterbrook and most other scholars praise these pleas as efficient, constitutional means of resolving cases. Even Albert Alschuler, a leading critic of plea bargaining generally, supports Alford pleas. He views them as a lesser evil, a way to empower defendants within a flawed system. As long as we have plea bargaining, he maintains, innocent defendants should be free to use these pleas to enter advantageous plea bargains without lying.
I dispute this conventional wisdom. Alford and nolo contendere pleas, I contend, are unwise and should be abolished. These procedures may be constitutional and efficient, but they undermine key values served by admissions of guilt in open court. They undermine the procedural values of accuracy and public confidence in accuracy and fairness, by convicting innocent defendants and creating the perception that innocent defendants are being pressured into pleading guilty.”
From: "Harmonizing Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendre Pleas, " by Stephen Bilbas
(Originally published in the Cornell Law Review, Volume 88, Number 6, July 2003. Republished with the author's permission on pbs.org.)