Archive for the ‘Birmingham Crime’ category

Dazed And Confused

April 19, 2007

A couple of udates. 

First, for a good laugh, be sure to read the police report from B’ham City Councilman Joel Montgomery’s arrest (thanks John Archibald). Good stuff, especially Dr. No promising a female officer at the station that if she took off his handcuffs, he would “give her something good to look at.”

Whew, try not to think about that. Anyway, based on the report, we know for certain that Joel Montgomery is a jacka** when he’s drunk. But I still think he’s got a decent shot at beating the public intoxication charge. Yes, he cussed the officer and acted like a complete fool. Public intoxication, though, requires that he be a danger to himself or others, and there is nothing in the report that indicates how he was such a danger. All it contains is the officer’s conclusory statement that “Def. was clearly a danger to himself and others.” At trial, that will not do it; the arresting officer will have to produce some facts to support her conclusion.

And even if she does, the cross examination will point out: 1) police officer’s memories are not perfect; 2) reports are important to preserve what happened; 3) the report was written on the night of the incident; 4) the current testimony is several months after the incident; 5) the officer has arrested many other people in the meanwhile; 6) the new facts are not in the report.

Now the second update: Dan’s e-mail correspondence with Beth Chapman’s office about her office’s recent press release.

Amazing, really. The release, as you recall, explained that Beth Chapman opposes a recent gambling bill and thinks the Alabama Christian Coalition is apostate. In the e-mail exchange with Dan, she admits that the Secretary of State’s office would not in any way be affected by the substance of the gambling bill and that the S-o-S office has no position on the Alabama Christian Coalition. In other words, she admits that she just used the resources of the office for no reason other than the expression of her own personal opinion. Then she says this:

Secretary of State Chapman will continue to express her views on those issues that affect the people of Alabama, as do most public officials. Secretary Chapman will continue her longstanding record, during her time in public service, of maintaining her reputation for honesty, integrity, and fairness.

She may have that reputation, but if this incident is any indication of how she normally acts, she does not deserve it. Public officials, including Beth Chapman, are perfectly free to express their opinions about anything, when they are using their own time and resources to do so. On the other hand, public officials, including Beth Chapman, must only use the state’s resources for the state’s business.

What she did in that press release is no different than, for example, a city employee using a city credit card to pay for a vacation at the beach. The employee has the card for city business and that’s all it can be used for. Ditto using a press release to spout off about an issue completely irrelevant to the office of Secretary of State. The office’s resources are not there to give Beth Chapman a state-wide soap box for her own views; they are there so that she can keep us up to date on issues related to the Secretary of State’s office.

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Activist Judge

January 18, 2007

Regular readers know I think that term is a load of crap, and that I have very little patience for anyone who uses it, because – no matter who invokes it – what it invariably means is nothing more than “this judge made a decision I do not like.” But, if there is any case in the world where a judge actually has imposed his own views on an unwilling populace, it’s this one:

Brandon Deon Mitchell was sentenced Wednesday to death for a Thanksgiving Day 2005 triple murder after the judge overturned the jury’s 10-2 vote for life without parole.

The intro to “Law & Order” notwithstanding, in the criminal justice system the people are represented by the jury. And this particular jury heard all the evidence, considered all the arguments, and decided that no, in this particular case death was not appropriate. Then one elected judge in a rabidly death penalty state decides that his own opinion is better than that of ten jurors.

This is not a unique occurrence. Alabama law lets the judge override the jury’s recommendation for life or its recomendation for death. Judges use that power all the time. But they almost always use it like the judge did in this case: Ninety per cent (90%) of the time judges use the override, they use it to reject the jury’s pro-life decision and impose a death sentence.

Like I said, I think this is bad policy. I see no reason whatsoever to trust a judge’s decision more than the collective wisdom of the jury, especially not when that judge has to run for re-election in a state that is extremely pro-death penalty. I also think it is unconstitutional.

Basically, before Alabama can execute someone, Alabama has to do three things: 1) convict the person of a capital crime; 2) prove beyond a reasonable doubt that at least one “aggravating factor” to that crime was present; 3) demonstrate that the aggravating factor, or factors, outweigh any existing mitigating factors.

Its absolutely settled that the first two things are the sole province of the jury. If the jury says no on either, then that’s it, no death penalty.

The unsettled question is who gets to decide the third question. Most states have given that task to the jury alone. Alabama, by allowing judicial override, has said either the judge or the jury. In other words, in Alabama, there can be no death penalty if the jury votes nay on one or two, however, if the jury says yea on one and two, then, even if the jury says nay on three, the judge can impose death if the judge himself decides the aggravating factors outweigh the mitigating factors.

I think that is unconstitutional.

Over the last few years, Scotus (Scalia in particular) has re-invigorated the sixth amendment right to a jury trial by holding in several cases that facts essential to a penalty must be found by the jury beyond a reasonable doubt. That was the idea behind the end of the mandatory federal sentencing guidelines. It’s also the idea that made the second factor a question for the jury.

Now, here’s why I think that idea should also eliminate judicial override. Facts essential to the penalty must be found by the jury beyond a reasonable doubt. All three factors – capital crime; existence of an aggravating factor; aggravating factors outweigh mitigating factors – are essential to the death penalty. Hence, they all must be found by the jury beyond a reasonable doubt. That would mean the judge can not decide the third any more than the first two. If the jury says no death, that’s it, no death.

The objection to my analysis is that the weighing process is not a factual determination, but a moral judgment incapable of being subjected to standards like beyond a reasonable doubt standard. My response would be that beyond a reasonable doubt is not a quantitative measurement, but an expression of confidence. So it would be perfectly appropriate to apply it to the weighing process. Before the state can impose death, the jury must say that it is convinced beyond a reasonable doubt that death is appropriate.

That’s just my view on the current state of conlaw and its application to Alabama’s death penalty procedures. Regardless of whether you agree with me on that or not, I think we can all agree that as a matter of policy, we ought to get rid of judicial override. If twelve of our peers decide death is inappropriate, what is there to complain about?

Eric Rudolph: Prison Is Hard

December 11, 2006

That’s the gist of this story in the Advertiser today:

Olympic [and B’ham abortion clinic] bomber Eric Rudolph laments in a series of letters that the caged atmosphere of the federal prison where is spending the rest of his life is designed to drive him insane.

Rudolph, who hid out from authorities for five years in the woods of western North Carolina before being captured, says that his surroundings at the Supermax prison are getting to him.

“It is a closed-off world designed to isolate inmates from social and environmental stimuli, with the ultimate purpose of causing mental illness and chronic physical conditions such as diabetes, heart disease and arthritis,” he wrote in one letter to The Gazette of Colorado Springs.

“Using solitary confinement, Supermax is designed to inflict as much misery and pain as is constitutionally permissible,” he wrote.

Well, duh. What did he expect when he plead? Here’s a collection of information about the prison. This is from the Wikipedia article:

most individuals are kept for at least 23 hours each day in solitary confinement. They are housed in a 7-by-12 ft (3.5-by-2 m) room, built behind a steel door and grate. The remaining free hour is spent exercising alone in a separate concrete chamber. Prisoners rarely see each other, and the inmates’ only direct human interaction is with correctional officers. Visiting from outside the prison is conducted through glass, with each prisoner in a separate chamber. Religious services are broadcast from a small chapel.

Part of the prison is a “stepdown” program, designed to encourage less antisocial behavior and eventually transfer prisoners out of the ADX and back to the Maximum Security population. The program is three years in length, each year allowing more freedom and social contact with other inmates. Any violation during the program means participants revert to year one.

Most cells’ furniture is made almost entirely out of poured concrete, including a desk, stool, and bed covered by a thin mattress. Each chamber contains a toilet that shuts off if plugged, a shower that runs on a timer to prevent flooding, and a sink missing a potentially dangerous tap. Rooms may also be fitted with polished steel mirrors bolted to the wall, an electric light, a radio, a 13-inch black and white television set that shows recreational, educational and religious programming, and a cigarette lighter. These privileges can be taken away as punishment. The 4-in by 4-ft windows confuse the prisoner as to his specific location within the complex because one can see only the sky and roof. Telecommunication with the outside world is forbidden, and food is hand delivered by correctional officers.

I could not find the letters that the article mentions, but here is the Colorado Gazzette story from which the Advertiser’s story is an excerpt. It includes some of Rudolph’s thoughts on his crime and his sentence, and based on those thoughts, I don’t think he’s quite ready for a return to the general prison population:

Rudolph is serving life without parole because federal prosecutors agreed not to seek the death penalty in exchange for his pleading guilty to the bombings and revealing the location of dynamite he buried.

At his sentencing hearings in Birmingham and Atlanta last summer, Rudolph was smug and largely unapologetic. He read a statement saying he bombed two abortion clinics because “abortion is murder, and because it is murder I believe deadly force is needed to stop it.”

The attack at the Olympics in 1996, he said, was meant to “confound, anger and embarrass” the government for sanctioning abortion. He offered a muted apology for the woman he killed and the more than 100 people injured by the nails and screws he packed into the explosives.

He concluded his statement by saying, “The talking heads on the news opine that I am ‘finished,’ that I will languish broken and unloved in the bowels of some Supermax, but I say to you people that by the grace of God I am still here — a little bloodied, but emphatically unbowed.”

Nearly 16 months in isolation have not changed his attitude. Last month, Rudolph sent The Gazette a 16-page story he said was a “satire” based on his sentencing in Birmingham in July 2005.

The names were changed slightly, he wrote, because the Bureau of Prisons won’t let him send mail that deals with crimes or acts of violence.

In it, he mocks the prosecutors, judge and victims of his 1998 bombing of the New Woman All Women clinic, which killed off-duty policeman Robert Sanderson and maimed nurse Emily Lyons.

Lyons was struck by flying nails and shrapnel, which tore out one of her eyes. She has had 22 surgeries since 1998.

In a narrative dripping with sarcasm, Rudolph wrote that he “never learned that there is no freedom more dear to women than the right to dispose of their own unwanted children.”

Lyons, he wrote, “is a facilitator of this sacred right,” adding that he “had pointed his finger in judgment of Emily. And there is nothing more repugnant to citizens of the Brave New World than being called to account for one’s actions.”

Rudolph described Derzis as “brassy, worldly, the kind of woman who had not only been around the block a few times but was probably dragged behind a truck the entire way.”

“Releasing women caught in the shackles of maternity became her mission in life,” he wrote.

Sanderson, he wrote, was “a hero who stood steadfast watch as thousands of women made it to freedom over the corpses of their unborn children. That’s heroism folks!”

Rudolph also detailed his thoughts during the judge’s indictment of his motives:

“Deadly force is sometimes justified to save life. That is what his law books say. This is a riddle that even a fool can resolve,” Rudolph wrote. “The only real question is under what circumstances it is justified to take life.”

The document is among several by Rudolph posted on the Web site of the Army of God.

That sounds like someone who is still very much a threat.

If you want more information, here is the Army of God website, and here is their page about Rudolph, which contains the “satire” mentioned in the article, as well as several other things he has written. As you might guess, the pictures on those two sites are really, really horrific – decapitated and bloody fetuses. You can get to the satire without seeing the pictures as long as you don’t scroll any lower than the link for the satire. It’s called “The Sentence.”

Alabama Supremes: Sweepstakes Machines At B’ham Race Course Are Illegal

December 1, 2006

The story:

The casino-style sweepstakes operations at the Birmingham Race Course are illegal, the Alabama Supreme Court ruled today, reversing a Jefferson County judge’s ruling earlier this year.

The 7-0 decision, written by Justice Tom Woodall, said the machines at the race course’s Internet Cafe are slot machines, which are illegal in Alabama.

Patrons at the race course can purchase internet time, which contains a certain number of sweepstakes entries based on the amount the person paid. The results of the sweepstakes are encoded on an electronic reader card. People can use “reader machines,” which look like slot machines, to find out how much cash they won.

In January, Jefferson County Circuit Judge Scott Vowell ruled that McGregor and the manufacturer, Innovative Sweepstakes Systems, Inc., had found a a legal loophole that should be closed by the Legislature. Even though the machines looked and sounded like illegal slots, they were not illegal under state law, he wrote.

But the state’s highest court called the machines “a refinement” of the original slot machine that takes advantage of modern technology but still amounts to illegal games of chance.

Well.  So much for my analysis, which agreed with Judge Vowell.  When the opinion’s available, maybe I’ll comment on it. For now, I will only say I am disappointed in my B’ham city councilwoman:

“This is probably bad news for Mr. McGregor but good news to the City of Birmingham,” said Birmingham City Councilwoman Valerie Abbott, who has introduced an ordinance to ban the machines. “His loss is our gain.”

No doubt this is bad for Mr. McGregor, but I fail to see how it is good for the city. I do not gamble, and I certainly would never spend my time or money in a place as pathetic as the B’ham race course. But that’s me. Apparently there is a large market of folks who think otherwise. How it benefits the city to tell them they are not allowed to spend their money in our town, or in a business that pays taxes to our town, is beyond me.

Then again, now that we won’t have any more of these wicked gamblers, maybe unlucky number 98 will be the last homicide for the year.

UPDATE: Here’s the opinion. Hmmm, interesting. The law is the law, so the court attacks Judge Vowell’s factual findings. For an appellate court to reject a trial court’s factual findings is very unusual. And, as I’ll try to explain Monday, these things are slot machines in the same way Chief Knock-A-Homer is a robot.

The Truth Will Set You Free

November 21, 2006

Last night, the talking head on the local channel told us that Michael Richards – famous for his role as Kramer on Seinfeld – had used “racially offensive language” during a stand up act. I guess the languagewas just too offensive for my delicate ears, because they did not tell me what it was, nor show me the video of the scene, instead expecting me to blindly trust the judgment of the all wise news people that the language was actually offensive. Hah.

Thankfully I was able to use the tubes of the internets to find the video and decide for myself. Yep, it’s offensive. Here it is, make up your own mind.  I will warn you, though, not to watch it if you either have sensitive ears or ever want to watch Seinfeld again.

And while we’re on the subject of offensive television, is anyone else as disappointed as I am that Fox cancelled O.J.’s tell-all-in-the-subjunctive-tense interview and book? Everyone knows he did it, and had this not been cancelled, we’d finally know how. And I bet it would have given the families a chance to sue him again. Surely there would be some tort applicable to the interview/book; outrage, invasion of privacy, something. And after what happened in the criminal trial, any civil court would bend over backwards to make it happen. Oh well, now we’ll never know.

We do know that Brandon Mitchell intentionally murdered three people at the Airport Inn in B’ham last Thanksgiving. A jury convicted him last Friday, so we can rest assured he’s guilty. What we don’t know is whether Alabama will get to kill him for the crime. The same jury that convicted him – a pronouncement no prosecutor would EVER second guess – also recommeded life without parole as punishment – a judgment you better believe the prosecution will second guess. In Alabama, the elected judge, not the independent jury, gets to make the final decision about death. The B’ham news offers sage advice:

Alabama is one of only a handful of states that allow judges to disregard a jury’s advice when it comes to death sentences. It’s a particularly troubling aspect of our state’s approach to capital punishment, especially considering that our judges are elected and under pressure to appear tough on crime.

Perhaps for that reason, the power is almost always used to impose death when a jury recommends life, even though judges are able to spare defendants against a jury’s wishes, too. About 20 percent of Alabama’s Death Row is made up of people a jury didn’t believe should be executed.

That’s a travesty.

The Airport Inn murders were awful, no doubt about that. Three people who were loved immensely were shot to death. They include Kim Olney, who was working at the hotel; John Aylesworth, a Texas trucker who had just checked out; and Dorothy Smith, who was about to check in. Their families testified Friday about their grief.

But jurors also heard about Mitchell’s sad upbringing: taken into state custody as a baby, tossed to and fro as he grew up, tied to chairs and beaten by relatives.

Prosecutors argued that was beside the point.

“He chose death for those people,” prosecutor Danny Carr told the jury. “And now he wants you to do something he did not do – show mercy. Throw your sympathy away.”

For whatever reason, the jurors showed mercy. These are jurors who heard all the evidence in the case, who had to support the death penalty to get assigned to a capital case, who made the tough unanimous call to convict Mitchell for the crime. Yet they believed, by a 10-2 margin, that death was not a fitting punishment for Mitchell.

[Judge Bill] Cole should let their decision stand.

We can punish Brandon Mitchell because we know Brandon Mitchell committed a crime. He had a lawyer, he knew the charges, he was able to contest the charges, and a neutral decision maker evaluated the evidence. Plenty of others wish they were that fortunate. The Tuscaloosa News editorializes today:

Known as “The Great Writ” and Latin for “you [should] have the body,” habeas corpus requires the government to show proof why it should be allowed to incarcerate people.

Article 1 of the Constitution makes it clear that arbitrary detention is beyond the pale in a just society under all but the most extreme circumstances: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it.”

It is a right that is also a cornerstone of international law, which not only governs the way we treat people we capture overseas, but guarantees rights to Americans who may be jailed in other lands.

But under the Military Commission Act, passed by a congress composed of rubber stamp Republicans and cowed Democrats, habeas corpus would not exist in the United States for those deemed enemy combatants by the President and perhaps some of his legal underlings.

Under the law, people could be arbitrarily defined as a “terrorist,” arrested and locked up with no chance to be confronted with the evidence against them or to defend themselves. In fact, that is already going on at places like Guantanamo Bay, where of the hundreds of prisoners detained there since the Sept. 11, 2001, attacks on America precisely 10 have been formally charged.

But the winds of change that blew so strongly on Nov. 7 may also swirl through the new Congress when it convenes in January. . . .

Last week Connecticut Sen. Chris Dodd introduced legislation that would amend the military commission act to provide mechanisms for those arrested by the government to seek legal redress.

“I take a backseat to no one when it comes to protecting this country from terrorists,” Dodd said in introducing his legislation. “But there is a right way to do this and a wrong way to do this.

“It’s clear the people who perpetrated these horrendous crimes against our country and our people have no moral compass and deserve to be prosecuted to the full extent of the law,” he added. “But in taking away their legal rights, the rights first codified in our country’s Constitution, we’re taking away our own moral compass, as well.”

There is, of course, no chance Dodd’s bill will be passed in the 109th Congress. But we have great hopes for his success, and other successes on a wide range of civil liberty issues, in the 110th that convenes in January.

NPR obtained tapes of the portions of the military tribunals on GTMO. Here’s what one of the imminent threats to our freedom has to say:

Hadj Boudella, one of the other detainees, tells the military panel at his tribunal that this is the first time he’s heard some of the accusations against him.

“I’ve been here for three years, and these accusations were just told to me,” Boudella says. “Nobody or any interrogator ever mentioned any of these accusations you are talking to me about now.”

What’s striking is that, despite not knowing fully why they’re being held, enduring open-ended detentions and sometimes harsh interrogations, the detainees on these audio tapes express faith that truth will prevail. Boudella tells the panel that his lawyers — at the Boston firm Wilmerhale — sent him a letter telling him not to participate in the tribunal for fear of incriminating himself.

“I want to show you that I am really innocent, and I want you to see I can defend myself,” Boudella says on the recording. “If you’re innocent, no matter how people try to cover your innocence, it will come out.”

Amen. Here’s hoping congress will now have the guts to let the truth be our leader in the fight against terrorists.

Don’t Bring A Knife To A Gun Fight

November 14, 2006

Back in August, four men entered the home of Ricky Gross – a father of seven and a former sailor in the US Navy – and shot him a total of fourteen times, twelve of them in the back. Two other people witnessed the event and both say that Gross was unarmed and had not threatened anyone. Gross died from the injuries.

Nevertheless, District Attorney David Barber announced yesterday that there would be no criminal charges against the four assailants. The coroner, who was not at the scene, said there was a knife on the floor near Gross’s dead body. An autopsy revealed that Gross was drunk when he was killed. The assailants say Gross threatened them. Clearly, then, this was a case of self defense and there is no need to arrest anyone or to submit the case to a grand jury.

Not so clear? Oh yeah, the assailants were cops.

My previous comments on this case are here, and here.

Woo Hoo! We Finally Topped Atlanta!

October 30, 2006

Yes sir, B’ham is the place to be when it comes to crime. In this year’s list of the most dangerous cities, we’re number six, while hotlanta comes in at seventeen.