A Commune With the City

The High Line opened earlier this month, an abandoned elevated railway turned park on the lower west side. It was built in the 1930s as a short line to service the manufacturing concerns in the area, including the cattle needs of the Meatpacking District. By the 1990s, as factories left the city and the neighborhood declined, it was derelict and slated for demolition. Rather than knock it down as a now-unsavory relic of a bygone area, a couple visionaries saw its potential as a greenway – a uniquely New York expression of the rails-to-trials movement.

The new High Line is an elevated urban promenade, the first portion of which runs from Gansevoort Street to 20th Street. It's a space to commune with nature, including plant species indigenous to Manhattan. It's an oasis of calm hovering above the hustle-bustle. It's also a place to commune with the city. By removing oneself from the life of the street, by changing one's perception – by surveying the city from a perch one story up – one can see the city with new eyes. Its magnificent architecture, garish commercialism, relentless energy, surprising quaintness, its natural beauty is revealed, as if to remind us of the possibility of being in gotham but not of it.

Homicidal Fantasies

The New York Times has completed an interesting analysis of all murders committed in New York City from 2003 through 2008. Article here. Database here.

The city averaged 54o murders per year for each of the years 2003-08, down from 2,262 murders per year in 1990. In other words the murder rate is down 75% from what it was less than 20 years ago. That's a pretty stunning transformation.

And here's one tidbit I though was especially interesting: "From 2003 to 2008, the number of women killed each year by strangers was in the single digits."

The crime-fear in American society, often hysterical in tone, centers around fantasies of stranger attack, especially stranger attacks on women. Yet in New York, our nation's largest city, home to 8 million inhabitants, fewer than 10 women are killed by strangers each year.

Osborne Thoughts

The U.S. Supreme Court delivered its opinion in District Attorney's Office v. Osborne today, rejecting, by a vote of 5-4, a prisoner's claim to post-conviction DNA testing. I have a personal connection with the case in that, along with several colleagues (and the help of a terrific law student), I filed the original lawsuit in U.S. District Court for the District of Alaska. Some thoughts about the opinion:

(1) It's important to be clear about what the Court says and what it doesn't say. The Court said that individuals have no federal constitutional right to post-conviction DNA testing. But that doesn't mean that individuals have no statutory right to post-conviction DNA testing. And indeed, 47 states have passed laws that allow defendants to obtain post-conviction DNA testing. Those statutes are not disturbed by today's ruling. To put it another way: the case asked whether states must provide access to post-conviction DNA testing. The Court said no. But states can still choose to provide access to that testing – and almost every state has chosen to do so.

(2) Today's opinion has very limited practical effect. In the three states that have no post-conviction DNA testing statute – Alaska, Oklahoma, and Massachusetts – it leaves defendants, like Osborne, with no clear path to post-conviction DNA testing. (Though in Massachusetts, defendants can often get testing with the consent of prosecutors or under the state's general postconviction law.) In the other 47 states, today's opinion will have almost no effect. A couple of those 47 states, like Alabama, have unusually narrow statutes that could potentially have been broadened by a ruling for Osborne, but generally speaking, in the 47 states with DNA statutes, today's opinion was of very little practical consequence.

(3) It's hard for me to see how the case could have come out any other way. While I don't like the decision, given the current composition of the Supreme Court, this decision had to be expected. In fact, I'm surprised it was as close as it was. On the current Court, not only the conservatives but also the ostensible liberals are often loathe to preserve – much less extend – the rights of criminal defendants. This is perhaps most true in the post-conviction context. Whether one views Osborne as asking the Court to create a new right (to post-conviction DNA testing) or merely to extend a right (of discovery) to a new context (post-conviction), one had to expect outright hostility from the four conservatives and deep skepticism from Kennedy and the four moderate-liberal justices.

(4) The record in the Osborne case made it a less-than-ideal vehicle through which to establish a new right to post-conviction DNA testing. Osborne actually had gotten a primitive form of DNA testing prior to trial. That testing was of limited probative value, but it nevertheless required Osborne to argue that he not only had the right to DNA testing, he had the right to additional DNA testing in a case where such testing had already been performed. Given the facts of his case, I believe Osborne deserves that additional testing – the pre-trial testing was not particularly discriminating and new testing could prove him innocent – but it would have been a lot easier to convince SCOTUS to create a new right to post-conviction DNA testing in a case where DNA testing had not already occurred. For those justices who fear the specter that defendants would use a federal constitutional right to seek additional (frivolous) DNA testing every time there is a small incremental change in DNA technology, Osborne's (legitimate) claim for additional testing gives them something to latch on to.

(5) In some ways what Osborne was asking for seems like common sense: the right to employ a uniquely probative new technology that has the power to prove him innocent. But in a legal sense what he was asking for was actually quite bold. He was asking the Supreme Court to extend the right of defendants to compel discovery -- a right which generally speaking exists pre-trial -- into the post-conviction context. This is no small thing. American courts tend to see trial as the stage in the legal process where factual investigation occurs and matters of fact get resolved. Appeals, including post-conviction proceedings, tend to focus on questions like was the trial fair? Were the defendant's rights respected? But appeals tend not to address questions like was the trial accurate? And did the jury reach the correct decision? With some exceptions, those latter types of questions are resolved at trial; after trial, courts are loathe to even inquire into the matter. Courts call this principle finality. The idea is that fact finding can't go on indefinitely, and in our legal system trial is where it best occurs – with live witnesses and in front of juries. After trial, generally speaking, one can challenge the procedure of the trial but not the substantive content of the evidence presented. Osborne was asking the Court to constitutionalize an exception to this widely accepted and, by many judges, enthusiastically embraced doctrine. From this perspective, what Osborne was asking doesn't seem quite so simple or obvious.

(6) Having said all that, finality is a beast that post-conviction defense lawyers need to confront head on. The principle is based in a reasonable idea: in a world of limited judicial resources, trials can't go on forever; each time a new fact arises in an old case, we can't impanel a new jury and have a whole new trial. At the same time, if there's anything the DNA cases have shown, it's that trials sometimes get it wrong, and those wrongs can sometimes be corrected.

Sometimes, for a variety of reasons, compelling evidence of innocence doesn't arise at trial; it only comes to light afterwards. New technologies like DNA testing come about. New witnesses emerge who had previously not come forward. New information about alternative suspects comes to light. Witnesses who lied at trial – to protect themselves or gain a benefit from prosecutors or for countless other reasons – may have pangs of conscience and only later be willing to come clean. Earlier scientific understandings, like hair microscopy, may come to be seen as invalid. Sometimes time distorts truth, but sometimes the truth can only emerge with time.

The criminal justice system makes mistakes. It always will. The "system," is just a collection of people – judges, juries, attorneys, defendants, etc. – and people are fallible. The question is, what are we as people going to do about those mistakes? Will we invoke finality as a shibboleth to shield us from our inevitable imperfections or will we have the courage honestly to confront them and correct them as best we can?

As defense lawyers we can't fruitfully assert that every new fact that emerges post-trial, no matter how minor, is grounds for a new trial. At the same time, we must forcefully assert that when important new facts do emerge, post-conviction courts must be open to that evidence and take it seriously. The Osborne ruling is a setback, but the fight for the right to introduce new evidence post-conviction will continue. The credibility of our legal system depends on it.

Interdependence

Barack Obama in Cairo today: 

For we have learned from recent experience that when a financial system weakens in one country, prosperity is hurt everywhere. When a new flu infects one human being, all are at risk. When one nation pursues a nuclear weapon, the risk of nuclear attack rises for all nations. When violent extremists operate in one stretch of mountains, people are endangered across an ocean. And when innocents in Bosnia and Darfur are slaughtered, that is a stain on our collective conscience. That is what it means to share this world in the 21st century. That is the responsibility we have to one another as human beings.

This is a difficult responsibility to embrace. For human history has often been a record of nations and tribes subjugating one another to serve their own interests. Yet in this new age, such attitudes are self-defeating. Given our interdependence, any world order that elevates one nation or group of people over another will inevitably fail. So whatever we think of the past, we must not be prisoners of it. Our problems must be dealt with through partnership; progress must be shared....

All of us share this world for but a brief moment in time. The question is whether we spend that time focused on what pushes us apart, or whether we commit ourselves to an effort – a sustained effort – to find common ground, to focus on the future we seek for our children, and to respect the dignity of all human beings....

It is easier to start wars than to end them. It is easier to blame others than to look inward; to see what is different about someone than to find the things we share. But we should choose the right path, not just the easy path. There is also one rule that lies at the heart of every religion – that we do unto others as we would have them do unto us. This truth transcends nations and peoples – a belief that isn't new; that isn't black or white or brown; that isn't Christian, or Muslim or Jew. It's a belief that pulsed in the cradle of civilization, and that still beats in the heart of billions. It's a faith in other people, and it's what brought me here today.

We have the power to make the world we seek, but only if we have the courage to make a new beginning....

Systems Analysis

Our national discourse is so stupid. 

Jihad

City on A Hill

For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world. We shall open the mouths of enemies to speak evil of the ways of God, and all professors for God's sake. We shall shame the faces of many of God's worthy servants, and cause their prayers to be turned into curses upon us till we be consumed out of the good land whither we are going. – John Winthrop, A Model of Christian Charity

Dr. George Tiller, one of the few abortion providers in the state of Kansas, was shot and killed today in Wichita while attending services at the Reformation Lutheran Church. Tiller had long been the focus of anti-abortion groups: In 1991 he was the object of a summer-long protest; he was shot in both arms by a protester in 1993; in 1985 his clinic was bombed. More from the A.P. here.

Police have apprehended a suspect, Scott Roeder of Merriam Kansas, a member of Operation Rescue with a past link to the Montana Freeman militia group. Back in 2007, someone named Scott Roeder posted this on an Operation Rescue website called Charge Tiller:

It seems as though what is happening in Kansas could be compared to the "lawlessness" which is spoken of in the Bible. Tiller is the concentration camp "Mengele" of our day and needs to be stopped before he and those who protect him bring judgement upon our nation.

Does the United States really need to have some special relationship with God? Isn't it enough simply to be a nation among nations?

Fidelity

The California Constitution is an inane instrument. Through the initiative process, it allows the democratic populace to strip disfavored minorities of fundamental rights on the basis of a mere majority vote at the ballot box. In that sense it can hardly be said to be a constitution at all, as part of what distinguishes constitutions from mere law is that constitutions are generally hard to change – mere majority votes generally do not suffice – except in California. 

Proposition 8 was upheld today, as expected. The California Supreme Court said that a majority of Californians legally amended the state constitution last November 4th to outlaw same-sex marriages. The court also said that same sex couples married prior to Proposition 8 were not effected by the proposition and are still legally married.

What the people can do, the people can undo. It's time to launch a political movement to again amend the California Constitution to repeal Prop 8. This is an opportunity for equality-loving Californians to educate their fellow citizens about the issue of same-sex marriage. And then in 2010 it'll be back to the ballot box to set things right. 

And hopefully in the long run, Californians will change the process for amending their state constitution. Amendment by initiative is a horrible idea. No mere majority should hold such a power. 

Contribute to the effort here.

"Endemic"

How the Catholic Church thinks it has any standing to lecture the rest of us about sexual morality is beyond me. 

Tens of thousands of Irish children were regularly sexually and physically abused by nuns, priests and others over a period of decades in hundreds of residential institutions that housed the poor, the vulnerable and the unwanted, according to a report released in Dublin on Wednesday. “A climate of fear, created by pervasive, excessive and arbitrary punishment, permeated most of the institutions and all those run for boys,” the report said, adding that sexual abuse was “endemic” in boys’ institutions....

[T]he Commission to Inquire Into Child Abuse, exposes for the first time the breathtaking magnitude of the problem, and shows how an entire establishment in an overwhelmingly Catholic country seemed to collude in perpetuating a cruel and sadistic system.... Speaking of sexual abuse, the report said that sometimes the abusers were moved to other facilities where they could prey on other children. “At worst, the child was blamed and seen as corrupted by the sexual activity, and was punished severely.”

Condoms are bad. Gay sex is bad. Sex out of wedlock is bad. But raping little children is no big deal. Someone should tell these people to shut the fuck up. 

Toughness, Fear and Security

Glenn Greenwald distills the inane politics of national security to its essence: 

The "debate" over all the bad and scary things that will happen if Obama closes Guantanamo and we then incarcerate those detainees in American prisons... perfectly illustrates the steps that typically lead to America's National Security policies:

(1) Right-wing super-tough-guy warriors project some frightened, adolescent, neurotic fantasy onto the world -- either because they are really petrified by it or because they want others to be....

(2) Rather than scoff at the inane fear-mongering or point out simple facts to reveal its idiocy, Democratic "leaders" such as Harry Reid echo the right-wing fears in order to prove how Serious and Tough they are -- in our political debates, the more frightened one is, the more Serious and Tough one is....

(3) "Journalists" who are capable of nothing other than mindlessly reciting what they hear then write articles depicting the Right's frightened neurosis as a Serious argument, and then overnight, a consensus emerges: Democrats are in big trouble politically unless they show that they, too, are as deeply frightened as the Right is.

It's a long piece, but well worth reading. 

"I was there, but... I didn't kill anybody."

The Times reports:

At 12:01 a.m. Wednesday, Dennis J. Skillicorn is to be executed for his role in the murder of Richard Drummond, a businessman who had offered help to Mr. Skillicorn and two others when he saw their car broken down on the side of a road one night in August 1994....[W]hile he participated in robbing Mr. Drummond and was convicted of murder, another man (now also awaiting execution) was the one who fired the gun that killed Mr. Drummond....

“He is not the one who actually killed the person, and that just says to me: ‘Whoa! Let’s take a step back,’ ” said State Representative Steven Tilley, the Republican leader [of the Missouri House of Representatives]. “Look, I’m not soft on crime, but we can’t redo this once we’ve executed this person"....

[Mr. Skillicorn] said he was sorry for his drug-addled behavior of years past, but that he considered his death sentence arbitrary in a way, and said that he was not the worst of the worst. “I was there,” he said, “But in my case, I didn’t kill anybody."

Some might be surprised that this situation – the non-triggerman receiving a death sentence even though he didn't kill the victim directly – is permissible. This is true even though in many cases the non-triggerman's culpability is limited.

In fact, it's not at all unusual for the less culpable party to murder to receive a harsher sentence (though in Skillicorn's case both he and the triggerman received death). The factor that often most influences a defendant's relative punishment for a multiple-perp murder is not the relative culpability or individual characteristics of the defendant, but whether that defendant cooperates with prosecutors and testifies for the state.  

Wanted

The following individuals for torture and conspiracy to commit torture.

The Story of Stuff

Everybody should go to this website watch this. Here's a little teaser, The Story of Stuff, Chapter 5: Consumption:

Last Words

On Thursday, the state of Alabama executed Willie McNair for the 1990 murder of Ella Foy Riley, a woman for whom he did yard work.

According to the A.P., McNair declined to make a final statement.

After the excution, one of the victim's sons, Wayne Riley, issued a statement saying, "I ask that you pray for my family in the coming days and for the Willie McNair family, too, for they... have suffered for what he has done."

Last Words

A man named Donald Lee Gilson was executed by the state of Oklahoma on Thursday for the 1995 murder of his girlfriend's eight-year-old son, Shane Coffman. Gilson's girlfriend, Bertha Jean Coffman, was also convicted of the murder; she reached a deal with prosecutors and received a life sentence, rather than death, in return for her testimony against Gilson. Jurors were not informed of the deal.

The Oklahoma Pardon and Parole Board recommended that Glison's sentence be commuted to life without parole based on evidence that the victim's mother, not Gilson, was primarily responsible for her son's death. Despite the Board's recommendation, Gov. Brad Henry (D) denied the request for clemency. According to the A.P., Gilson's last words were:

"I'm an innocent man but ... I get to go to heaven and I'll see Shane tonight."

One Man And One Woman

The desire of some to define marriage as a relationship between "one man and one woman" is problematic for all sorts of reasons. On a concrete level, even in states that prohibit same-sex marriage, policing the boundaries of such a rule is all but impossible in a world where gender and sexual identity are so fluid. 

Once one accepts that gender and sexual identity aren't binary categories, the whole "one man and one woman" marriage regime is revealed as fiction. As this male to female transsexual writes on the Times op-ed page: 

Deirdre Finney and I were wed in 1988 at the National Cathedral in Washington. In 2000, I started the long and complex process of changing from male to female. Deedie stood by me, deciding that her life was better with me than without me.... I’ve been legally female since 2002, although the definition of what makes someone “legally” male or female is part of what makes this issue so unwieldy. How do we define legal gender? By chromosomes? By genitalia? By spirit? By whether one asks directions when lost?... Gender involves a lot of gray area. And efforts to legislate a binary truth upon the wide spectrum of gender have proven only how elusive sexual identity can be....

A 1999 ruling in San Antonio, in Littleton v. Prange, determined that marriage could be only between people with different chromosomes. The result, of course, was that lesbian couples in that jurisdiction were then allowed to wed as long as one member of the couple had a Y chromosome, which is the case with both transgendered male-to-females and people born with conditions like androgen insensitivity syndrome. This ruling made Texas, paradoxically, one of the first states in which gay marriage was legal.

A lawyer for the transgendered plaintiff in the Littleton case noted the absurdity of the country’s gender laws as they pertain to marriage: “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

Legal scholars can (and have) devoted themselves to the ultimately frustrating task of defining “male” and “female” as entities fixed and unmoving. A better use of their time, however, might be to focus on accepting the elusiveness of gender — and to celebrate it. 

The man/woman binary, just like the black/white binary of Jim Crow, is based on a fiction. Accepting it requires erasing certain people who don't fit into either category and/or who arguably fit into both. Highlighting the (admittedly exceptional) cases of people who fit into neither category helps to demonstrate that the system that places so much emphasis on those categories is not only not natural and unchangeable, but not even an accurate description of the world.

Rightward Shift

The politics in Florida have been turned upside down. Gov. Crist had been a moderating influence on Florida Republican politics. He even made common cause with Democrats on some issues, something he didn't need to do in a state with huge Republican majorities in both houses of the legislature. For example he championed the Obama stimulus and limited felon re-franchisement; the latter is an issue that flat-out hurts Republicans. But now with Crist running for the Republican nomination for Senate against a young, attractive, right-wing Cuban American, Club for Growth-backed Republican in a closed primary, Crist surely will tack to the right. He goes from being a likely ally on common sense criminal justice reform issues to being a likely opponent. 

Kos' analysis of the race here and here.

Distance Travelled

I don't know much about her, but this article about Judge Diane Wood of the 7th Circuit reinforces my sense that she would make an excellent Supreme Court judge – an unapologetic liberal voice on an ideological, far-right Court. 

The article reminds just how recently women were all but excluded from the legal academy: 

When [Wood]... began teaching at the University of Chicago law school in 1981, she was the only woman on the faculty, and she was eight months pregnant. She had three children in five years. Prof. Lea Brilmayer of Yale Law School, who had preceded her as the only woman at Chicago, said the school in those days was “distinctly inhospitable” to women on the faculty.

Lea Brilmayer was my first year contracts professor. Brilliant, hilarious, and more than a little odd. Like Wood, when she started teaching at Chicago, she was the only woman on the faculty. The only woman on the faculty. While there's still a long way to go, it's worth pausing for a moment to appreciate just how recently legal academia was an almost exclusively male province. 

Recession Haiku

A little gem via Calculated Risk, one of my favorite blogs for info on the economic crisis:

Results from "Stress Test"

Bogus Kabuki theatre.

Truth remains hidden.

Tortured Phrasing

Awhile back I noted that the New York Times still refused to call the "enhanced interrogation techniques" of the Bush Administration "torture" even though they clearly are torture as defined by U.S. law, international law, past American war crimes prosecutions, etc.

Today Andrew Sullivan – a Burkean conservative who has been outspoken in his opposition to the Bush torture regime – notes that the New York Times has no problem using the word "torture" when other countries do it. How ridiculously timid the Times has been over and over again the past eight years in the face of massive government criminality, as though the purpose of a free press is to do little more than repeat government propaganda.

Sullivan's initial post is here. His follow up is here.

UPDATE: Glenn Greenwald picks it up as well:

There's been a major editorial breach at The New York Times today...

[S]houldn't this be called "torture" rather than torture -- or "harsh tactics some critics decry as torture"? Why are the much less brutal methods used by the Chinese on Fischer called torture by the NYT, whereas much harsher methods used by Americans do not merit that term? Here we find what is clearly the single most predominant fact shaping our political and media discourse: everything is different, and better, when we do it.