About the Duke Rape Case

A couple of things.  

For two reasons, I have not previously blogged about the situation. One, it’s not Alabama. Two, as a criminal defense attorney, I was shocked, just shocked, to hear that a politically motivated prosecutor hid evidence, lied, and used race in order to put another notch on his conviction belt. Amazed, really. I mean, that kind of thing never happens in this country.

“Oh, by the way, I was being sarcastic.”  This sort of thing happens every day. Only, as Radley Balko points out, no-one notices.

And that leads me to the first thing I want to say about the Duke case. I don’t care why this particular case ended up in the news, or who lined up on whose side; what I hope is that everyone will walk away thinking about how utterly important all of our due process rights are.

Few things make me as mad as hearing some dope use some version of the “criminals have more rights than victims” talking point. Yeah, people who are accused of crimes do have rights. Why? To prevent innocent people from going to jail. Where would these three guys be now if they did not have a right to a trial? Or to see the evidence against them? Or to questions their accusers?

In other words, what would have happened to them if they were tried, before, oh, say, a military commission in GTMO?

The next thing I want to say concerns one of the most important rights that ALL OF US have:”Three Cheers for Lawyers.”

That’s the title of this editorial by Randy Barnett in the WSJ yesterday. The context is the Duke case. Barnett points out that while all of us are concerned – correctly – about the “perfect storm” that created the situation, we ought to also thank the folks who rescued these three kids: Their lawyers.

The next time you hear a lawyer joke, maybe you’ll think of the lawyers who represented these three boys and it won’t seem so funny. You probably can’t picture their faces and don’t know their names. (They include Joe Cheshire, Jim Cooney, Michael Cornacchia, Bill Cotter, Wade Smith and the late Kirk Osborn.) That’s because they put their zealous representation of their clients ahead of their own egos and fame. Without their lawyering skills, we would not today be speaking so confidently of their clients’ innocence.

These lawyers held the prosecutor’s feet to the fire. Their skillful questioning at pre-trial hearings revealed the prosecutor’s misconduct that eventually forced him to give up control of the case and now threatens his law license. They uncovered compelling exculpatory evidence and made it available to the press; they let their clients and their families air their story in the national media.

Barnett also makes a more general point about criminal defense lawyers:

Do you suppose that lawyers like these gained their skills only representing the innocent? Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.

Crime is a serious thing, but so is taking away someone’s liberty and branding them as a criminal for life. As a criminal defense attorney, it’s my job to be an obstructionist; to make the costs of criminalization so high that it will only happen to those folks who truly deserve it.

My clients are usually guilty, but, because the ultimate issue is bigger than my client, if the state wants to put them in jail, the state is going to have to cross every “t” and dot every lower case “j.”  The ultimate issue is that it ought to be very difficult to throw people in jail. Making it hard for the state to criminalize people means guilty people will go free. But in my mind, that is much preferable to what would have happened to these Duke kids if there was no-one to force the state to follow the law.

Exploiting Tragedy

And the first loser is . . . Instapundit:

“At least 20 people were killed this morning at Virginia Polytechnic Institute and University after a shooting spree at two buildings on the campus.” Nobody seems to know much yet on what happened. These things do seem to take place in locations where it’s not legal for people with carry permits to carry guns, though, and I believe that’s the case where the Virginia Tech campus is concerned.

Don’t get me wrong, I’m all for a robust right to bear arms. But you ought to at least wait until the body count is official before you start using a massacre as support for your position. That goes for the gun control crowd, too; this is just the first offense I have seen by either side.

UPDATE: The second loser, at least in the order in which it entered my world, is the gun control crowd. The Brady Campaign to Prevent Gun Violence says in a press release:

Our thoughts and prayers go out to the families of the Virginia Tech University community, and to the families of the victims of what appears to be one of the worst mass shootings in American history.

Details are still forthcoming about what motivated the shooter in this case to act, and how he was able to arm himself.  It is well known, however, how easy it is for an individual to get powerful weapons in our country . . .

We have now seen another horrible tragedy that will never be forgotten.  It is long overdue for us to take some common-sense actions to prevent tragedies like this from continuing to occur.

Sigh. Anyway, Orin Kerr provides a good justification for waiting a while before talking policy:

in my view, the problem with responding to news of tragedy with policy ideas right away is that we tend not to realize in such situations how often our “proposals” are really expressions of psychological need. It’s human nature to respond to tragedy by fitting it into our preexisting worldviews; we instinctively restore order by construing the tragic event as a confirmation of our sense of the world rather than a threat to it.

 This means that often we won’t pay a lot of attention to the details of tragedies and what caused them. We’ll just know deep down inside what happened, and what caused it, and how to stop it next time. Take today’s tragic events at VA Tech. If you’re committed to gun control, the tragedy probably proves to you that there are too many guns; if you’re against gun control, the tragedy probably proves the exact opposite. Given that people will tend to see in events what they want to see, turning to policy right away will come off as rudely “playing politics” to those who don’t share your worldview. And obviously this doesn’t foster a helpful environment for policymaking, either.

Don Imus

Not an Alabama story, but here’s my thoughts.

1) He’s a jacka** and I’m glad CBS fired him.

2) Jesse Jackson and Al Sharpton – the main agitators for the firing – cause a lot more harm to the black community than Don Imus ever could.

3) This whole episode illustrates one of the reasons I oppose any and all attempts by the FCC to regulate the content of radio or television. If something is truly outrageous, consumers and advertisers will make sure it stays off the air. Let the people decide whether we want to hear Don Imus or see Janet Jackson’s breast.  

More Flag Insanity

At least these were out-of-state.

First:

Bob Hurst walked into a Tallahassee art museum this week and saw the symbol of his Southern heritage hanging by a noose.

The art work, which has led to a standoff between descendants of Confederate soldiers and the museum, is a life-size gallows with the Confederate flag dangling from a frayed rope. Created by a black artist from Detroit and titled The Proper Way to Hang a Confederate Flag, the piece has brought an old debate to Florida anew.

Hurst and his compatriots at the Sons of Confederate Veterans want the exhibit taken down, and they’ve invoked a 1961 Florida law to support them.

”I didn’t find it clever. I didn’t find it amusing. I found it offensive. I found it tasteless,” said Hurst, whose great-great-grandfather led a company for the Confederacy and committed suicide after the South’s surrender. . . .

A 1961 Florida law actually says it is illegal to defile or ”cast contempt upon” the Confederate flag.

Right. If desecrating the American Flag is constitutionally protected, than how much more protected do you think desecrating the flag of a non-existent country would be? Good luck with that.

And just to show that the “Oooh, ooh, I’m offended, therefore the government must silence you” attitude is not limited to dumba** rednecks:

In a crucial victory for free expression, San Francisco State University (SFSU) announced yesterday that its College Republicans will face no punishment for hosting an anti-terrorism rally at which participants stepped on makeshift Hezbollah and Hamas flags. SFSU’s decision comes after months of pressure from the Foundation for Individual Rights in Education (FIRE), national and local media, and the public—all of which called on the school to uphold the students’ constitutionally guaranteed right to free expression.

“We are relieved that SFSU has come to its senses and recognized that it cannot punish students for constitutionally protected expression,” FIRE President Greg Lukianoff said. “But the fact remains that the university should never have investigated or tried them in the first place. This was a protected act of political protest and it is impossible to believe the university did not know that from the start.”

I’ll quote one of my favorite bloggers on this one:

There is absolutely no reason for them to have ever had charges even considered. The conduct in question was clearly constitutionally protected, and the very existence of school by-laws that could potentially punish such conduct is chilling toward free expression. If it had been an American flag trampled on during an anti-war protest, this would be just as true. I care as little about the offense of Muslim students when others express their views as I do the opinions of the uber-patriots when someone tramples an American flag. You don’t like someone else’s views? Counter them with your own speech.

John Edwards And Ann Coulter

[Updated below] 

With which of the following statements do you agree?

1) Former John Edwards blogger Amanda Marcotte ought to be anathemetized for writing “the Catholic church is not about to let something like compassion for girls get in the way of using the state as an instrument to force women to bear more tithing Catholics.”

2) Amanda Marcotte ought not be anathematized for that statement.

3) Ann Coulter ought to be anathematized for calling John Edwards a faggot.

4) Ann Coulter ought not be anathematized for calling John Edwards a faggot.

I’m Catholic and straight, but I’m strongly inclined to pick 2 and 3.

It isn’t that I agree with Amanda Marcotte, but you can at least defend her statement. First, with people like Bill Donahue as standard bearers for the Church, I’m really not surprised that folks attribute ill-will to the Church. Second, the statement is at least an attempt to discuss a position taken by the Church: Opposing a law in Chile that would have allowed the distribution of contraceptives to teenage girls.

Go read all the “anti-Catholic” posts by the two defrocked Edwards bloggers. I posted what I saw as the worst of the lot. For the rest, sure they use some, uhh, colorful language, but they concern specific issues, issues on which certain Catholics have taken very public positions. If you’re going to make an argument about some public policy, I don’t know why you ought to get a pass on criticism just because your argument has a religious basis. A dumb idea is a dumb idea, whether or not it’s religious. If your religious faith can’t handle criticism, than don’t try to make your faith the basis of public policy.

Again, I’m not saying I agree with them, or that the way they expressed their disagreements with Catholics is a good way to have debates. I’m not even denying that underneath their vehement disputes over policies might be some real anti-Catholic hatred. I’m just saying that what they wrote is at least defensible.

But calling John Edwards a faggot? Patent bigotry, that.

[Update]

Two more issues here.

First, the party line post-Coulter craziness is always the same: “Not representative of conservatism, improper, unwise, yada yada yada.” But check out the response to her comments when she made them at a gathering billed as an event “where thousands of conservative activists and leaders from across the country join together for a three-day event to discuss current issues and policies and to set the agenda for the future of the conservative movement.”  

Now, I’ve heard it said that character is what you do when no-one is looking. And what were all those conservative activists and leaders doing in response to Coulter’s statements before the press, the bloggers and the rest of the country began looking them? They began with a few laughs, and proceeded to clap and cheer, requiring Coulter to pause for several seconds and bask in their approval. There were no awkward silences, no condemnations, just hearty approval. It was as if the audience members each thought momentarily “she can’t say that” before realizing no-one in the room would object and then fully revelling in their angry ignorance.

Second, she made the comments about John Edwards on the same weekend that other Democratic candidates were in Selma for the anniversary of Bloody Sunday. I can’t help but notice a few similarities between Ann Coulter and the scum beating the marchers on that day.

Faggot and Nigger are words of the same species. Neither tells anyone anything about the group they are supposed to describe, but they do reveal the user as an ignorant, hateful p-o-s. Black, negro, gay, queer: These all may be inappropriate. But Faggot just as much as Nigger says “I don’t know you, but I hate you, you are not worthy of life, nor a place in my society.” These aren’t just impolite words, words that go beyond what’s “politically correct,” these are words designed to degrade, humiliate, and if they could, kill.  

Just like the words are the same, so are the people who use them. There’s no difference between Ann Coulter, the cowards who laughed at her “joke,” and Fred Phelps, just like there was no difference between White Citizens Councils and the KKK. Bigotry dressed in a nice suit is still bigotry. MLK’s Letter from a Birmingham Jail forced respectable folks to make a choice: Bull Connor and George Wallace or Justice? The same choice is before us today: Justice or Fred Phelps and Ann Coulter? The video reveals what the conservatives at CPAC chose. I’ve got  more faith in the rest of us.

That’s my view, anyway. But I’m a middle class white guy who only knows about the civil rights movement from books. It sure would be nice to hear someone who experienced it make these connections.

Traffic Light Cameras

[I updated this post here] 

Saw this story via The World Around You:

State Rep. David Grimes, R-Montgomery, says that accident is an example of why he has prefiled a bill that would allow law enforcement agencies to set up cameras at traffic lights and then write tickets that will be sent to the owners of vehicles caught on film running under the red signals. Grimes says the fear of getting a ticket would slow drivers down as they approach traffic lights and discourage them from running red lights.

Whatever the theoretical merits of these things, Radley Balko reports on how they actually worked in Lubbock, Texas, where in order to increase revenue from camera tickets, local officials shortened the times for the yellow lights. Less yellow time, of course, means cars are more likely to get caught running a red light, but that also means more traffic accidents. So the traffic cameras created an incentive for the Lubbock officials to disregard public safety.

Lubbock is not the only place where cameras made intersections less safe:

As red light cameras in Modesto, California are sending more people to the hospital, city officials have decided to double the number of intersections with the devices to increase revenue. Last year, each of the four intersections currently photo enforced experienced an increase in the number of collisions.

Happened in Ohio, too:

Accidents are increasing at the seven intersections monitored by red light cameras in Cleveland, Ohio. According to statistics obtained by WEWS-TV, the photo enforced intersections experienced 28 collisions before the devices were installed compared to 39 afterward. Akron attorney Warner Mendenhall, who is arguing against traffic cameras before the Ohio Supreme Court, told WEWS that the results reflect the program’s true motivation.

“It’s very clear that safety is not the issue,” Mendenhall said. “There are studies throughout the country that show accidents actually increase.” (View studies).

Now I know no-one in Alabama would ever let revenue concerns trump public safety. Our politicians are much more honorable than that. But there’s other problems with these cameras.

Some you could label as basic due process problems:

Ticket recipients are not adequately notified.
Most governments using ticket cameras send out tickets via first class mail. There is no guarantee that the accused motorists will even receive the ticket, let alone understands it and know how to respond. However, the government makes the assumption that the ticket was received. If motorists fail to pay, it is assumed that they did so on purpose, and a warrant may be issued for their arrest.

The driver of the vehicle is not positively identified.
Typically, the photos taken by these cameras do not identify the driver of the offending vehicle. The owner of the vehicle is mailed the ticket, even if the owner was not driving the vehicle and may not know who was driving at the time. The owner of the vehicle is then forced to prove his or her innocence, often by identifying the actual diver who may be a family member, friend or employee.

Ticket recipients are not notified quickly.
People may not receive citations until days or sometimes weeks after the alleged violation. This makes it very difficult to defend oneself because it would be hard to remember the circumstances surrounding the supposed violation. There may have been a reason that someone would be speeding or in an intersection after the light turned red. Even if the photo was taken in error, it may be very hard to recall the day in question.

There is no certifiable witness to the alleged violation.
A picture may be worth a thousand words, but it may also take a thousand words to explain what the picture really means. Even in those rare instances where a law enforcement officer is overseeing a ticket camera, it is highly unlikely that the officer would recall the supposed violation. For all practical purposes, there is no “accuser” for motorists to confront, which is a constitutional right. There is no one that can personally testify to the circumstances of the alleged violation, and just because a camera unit was operating properly when it was set up does not mean it was operating properly when the picture was taken of any given vehicle.

There’s questions about whether they even work:

Ticket cameras do not improve safety.
Despite the claims of companies that sell ticket cameras and provide related services, there is no independent verification that photo enforcement devices improve highway safety, reduce overall accidents, or improve traffic flow. Believing the claims of companies that sell photo enforcement equipment or municipalities that use this equipment is like believing any commercial produced by a company that is trying to sell you something.

Taking dangerous drivers’ pictures doesn’t stop them.
Photo enforcement devices do not apprehend seriously impaired, reckless or otherwise dangerous drivers. A fugitive could fly through an intersection at 100 mph and not even get his picture taken, as long as the light was green! . . . .

Cameras do not prevent most intersection accidents.
Intersection accidents are just that, accidents. Motorists do not casually drive through red lights. More likely, they do not see a given traffic light because they are distracted, impaired, or unfamiliar with their surroundings. Even the most flagrant of red-light violators will not drive blithely into a crowded intersection, against the light. Putting cameras on poles and taking pictures will not stop these kinds of accidents.

And the unintended consequences:

These devices discourage the synchronization of traffic lights.
When red-light cameras are used to make money for local governments, these governments are unlikely to jeopardize this income source. This includes traffic-light synchronization, which is the elimination of unneeded lights and partial deactivation of other traffic lights during periods of low traffic. When properly done, traffic-light synchronization decreases congestion, pollution, and fuel consumption.

All in all, these things are a bad idea. Which means they’ll probably be coming to your town very soon.

 

Shockingly Bad Taste? Or Poignant Social Commentary?

Benny Hill meets Saddam Hussein:

The End Of The Latest Monkey Trial

The Cobb County sticker case is over:

The Cobb County evolution saga is finally over, more than four years after school officials ordered stickers warning that evolution is “a theory, not a fact” pasted into thousands of science textbooks.

The end came Tuesday, when the Cobb County school board announced it had settled a lawsuit filed by parents who said the disclaimer violated the constitutional prohibition against government-established religion. . . .

In the settlement, the school system agreed not to take out or edit materials on evolution in textbooks and to pay $166,659 toward attorney fees in the case.

This is certainly a “W” for the plaintiffs. I’ve previously commented on this case, after the 11th Circuit remanded it back to the District Court for further hearings. I did not think the sticker itself was all that harmful, though I recognized the motives behind it were probably one hundred percent bad. Today’s story confirms my belief about the motives:

Marjorie Rogers, the Cobb parent who led the drive that resulted in the stickers’ placement, said she was disappointed.

“The stickers were just a compromise the school board made to satisfy those of us who were offended by the material in the textbooks,” said Rogers, a creationist.

Once again, the nefarius right not to be offended trumps education. Even better is this reaction:

Larry Taylor, one of the parents who originally lobbied the school board for the stickers, expressed frustration at the decision to settle. He blamed the American Civil Liberties Union, which represented the parents who sued the school district.

“They were trying to do the right thing,” said Taylor, a parent of three Cobb students. “It’s terrorist organizations like the ACLU that are hijacking our country’s educational system by imposing their own secular agenda on the rest of us.”

Speaks for itself, huh? Yes, an organization that uses courts to uphold the Constitution and the rule of law, that’s just like an organization that flies planes full of people into crowded office towers in order to impose its barbaric religious views on another country. And who is “hijacking our country’s educational system?” The organization that tries to make sure school science classes teach science? Or the religious nut jobs who want science withheld from all students whenever that science conflicts with their own bad theology? What an idiot.  Someone was trying to do the right thing here, but it wasn’t Larry Taylor or the Cobb County School Board.

Eric Rudolph: Prison Is Hard

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.”

The Truth Will Set You Free

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.