Monday, July 25, 2011

Implications Of The Norwegian Massacres

The slaughter and emotional trauma inflicted on the Norwegian people at their government center and the island youth retreat by 32-year-old suspect Anders Behring Breivik (who apparently has confessed) could have far reaching implications for a nation that has what most Americans would consider a naive perspective on violence, immigration and law enforcement.

The attacker, after setting off his car bomb which killed seven, made his way to the island where the Labour Party was having a retreat for its youth. He then set about a 90-minute shooting spree that left an additional 86 innocent people dead. Reports indicate that the only security for the retreat was an off-duty police officer who was not armed. In fact most police in Norway don’t carry firearms.

The Norwegians are not used to this sort of violence in their society and were ill prepared to confront this sort of evil when it reared its head in a most diabolical way. In fact the Norwegian judicial system is not setup to deal with this sort of atrocity. Even if convicted on all counts of premeditated murder Breivik can only face 21-years in prison, not for each count, but in total.

One must wonder how the Norwegian people will react once the shock and horror of this despicable crime turn to the shock and horror of how ill-prepared their police and judicial systems are to confront it. Will the populous demand that the laws be changed? Will they demand that their police be armed to properly protect the public? Will the Labour Party that was the target of this murderous madman be unseated by a disillusioned electorate, in favor of a more hard line government? Will this be Norway’s “9/11 moment”?

There is no excuse for mass murder – especially of helpless, innocent children – and the only person responsible for these twin attacks is Anders Behring Breivik. Terrorism analyst Walid Phares who has examined the terrorist’s manifesto has indicated that it borrows from both the liberal-left and the conservative-right, making it a unique and twisted ideology. This makes the attempts here in the United States to blame the “violent” Tea Party or conservative bloggers foolish.

But the policies that inspired his violence and which allowed him to hunt down his victims for 90-minutes without opposition of any kind are likely to be closely scrutinized by the Norwegian people and the their policy makers.

The multiculturalism that so infuriated the gunman has been renounced by other European leaders like English Prime Minister David Cameron, German Chancellor Angela Merkel and French President Nicolas Sarkozy. They have realized that no nation can absorb large numbers of immigrants that refuse to assimilate into the culture or learn the language of their adopted nations. It’s likely that the government of Norway will now have to examine that policy as well.

More importantly the Norwegian people and government will have to reconsider their security and legal systems which have proven completely inadequate in the wake of these unprecedented attacks. This is a fact as a Norwegian judge has ruled that Breivik, who has warned there a two more cells in his terror group, is to be held in complete isolation for the next four weeks.

Friday, July 22, 2011

An Eye Opening Lesson In Our Criminal Justice System

Just one week after the controversial verdict in the Casey Anthony murder trial had angered the nation and instigated many a debate about our system of jurist prudence, I found myself serving on jury duty. From the voir dire (jury selection) process, to the trial and finally deliberating the verdict, it was truly an eye opening and, at times, troubling experience.

I arrived at the Palm Beach County courthouse early Monday morning, neither looking forward to, nor dreading doing my civic duty. This was not the first time I had been summoned to serve on jury duty, although I had never actually been chosen to sit on a jury and hear a case.

I was in the second group of 30 prospective jurors to be taken from the first floor jury assembly room to a courtroom on the 11th floor of the courthouse to be interviewed by the attorneys for the prosecution and the defense for the purpose of selecting six people to hear the case they were preparing to try.

First the judge introduced himself, the state’s attorneys (a.k.a. the prosecutors) and the defense attorneys, as well as their client (the defendant). The judge then thanked us for sacrificing our time and for our service. He then instructed the state’s attorney to begin interviewing the potential jurors.

The state’s attorney began by talking to us about the burden of proof. She explained that the defendant was presumed innocent until the state proved him guilty beyond and to the exclusion of any reasonable doubt. She went on to tell us that they had to prove the elements of the crime -- basically that the crime had been committed and that the defendant was the person who had committed it.

Then the prosecutor asked each of us a few questions about our backgrounds and past encounters with police, and if we had close friends or family in law enforcement and whether we had ever served on a jury previously.

After the prosecutor finished her portion of the interview process there was a brief recess. By that time I had identified a few people I felt confident would not be selected to sit on this jury, including four for whom English was their second language. These people were having difficulty understanding what the prosecutor and the judge were saying, so it only stood to reason they would not be selected. Additionally, there were several potential jurors who'd related negative personal experiences with police and the criminal justice system so I was certain the prosecutors would decline to invite them on the panel.

Then one of the defense attorneys began his portion of the voir dire. This young man, whom I nicknamed “Skippy”, started by asking the first panelist three questions that he would go on to repeat to almost all of the panelists. I’m paraphrasing, but they were something like: 1) Do you think it’s reasonable that a police officer might plant evidence to make someone look guilty? 2) Do you think that a witness can be certain of their testimony but still be inaccurate? And lastly: 3) Do you think a person can be innocent and still be on trial?

You’re probably wondering why I nicknamed the defense attorney “Skippy”. First it was because of his age; he looked like he could still be in college. But it was also because he annoyed me. I deduced very quickly that his repeated questions were less about drawing out information from the panelists and more about planting three ideas in the minds of the six of us that would eventually be hearing the case.

Skippy wanted us to be considering the possibility that the police planted the evidence in the case, that the witness testimony would be unreliable and of course that his client was innocent.

I should mention that Skippy’s questions did reveal the unworthiness of some panelists to serve be on the jury. There were folks who boldly declared that if the defendant didn’t give up his Fifth Amendment rights and testify in his own defense, they would hold that against him.

There were also panelists that said they didn’t think the presumption of innocence or the burden of proof beyond a reasonable doubt were good ideas. They apparently believed that an accused person should have to prove their innocence and that it should be easier for the state to prove guilt.

Jury selection took the better part of a day and a half. By Tuesday afternoon six jurors (including me) were selected and sworn in. We then immediately began to hear the case.

First the prosecution and then the defense made their opening statements. Essentially they laid out the facts of the case as they saw them and what we would see and hear as the case was presented.

The state’s attorney started to present the prosecution’s case by calling her first witness, the elderly female victim, to testify (the other victim had passed away since the incident). She testified to what had happened on the evening in question and related to us that a black man wearing a dark shirt, red pants – or shorts – and a black cap had accosted her and her companion, in her car, after they had enjoyed dinner at a local restaurant. The assailant had put a gun to her neck and demanded her purse, which she relinquished, and then ordered her friend to hand over his wallet. He then fled on foot.

The prosecutor then began to ask the victim about what happened after the robbery. She testified that the restaurant’s bartender had dialed 911; the sheriff’s deputies were called and arrived shortly thereafter.

Not too long after the first deputies arrived at the restaurant, a call came across the radio that other deputies had someone in custody that fit the victim’s description. Both victims were taken in a patrol car to where a suspect was in custody for what the police call a “show-up” identification. The “show-up” I.D. consisted of the suspect – dirty, sweating, bleeding and in handcuffs -- being shown to the victims. Not surprisingly the victims said he was the man that had robbed them.

On cross examination, the defense showed that several things that the victim was testifying to on the stand, differed from what she had said on the night of the crime and in subsequent depositions. Her recollection of things like the color of the gun, whether the suspect was wearing pants or shorts and whether or not he had facial hair had evolved over time. In addition, despite the fact that her attacker’s face had been mere inches from hers, the victim was unable to give any other description of him other than that he was black and he had “steely, cold, unblinking eyes”.
As the prosecution case proceeded, four Palm Beach County Sheriff’s deputies were called to testify. As each of the deputies testified, we were confronted with law enforcement officers that admitted they had made many mistakes, in both judgment and procedure, on the night of this incident.

The lead deputy in the case testified that she had told the victims they had a suspect in custody that met their description and that she needed to see if they could identify him. Instead of using a photo lineup or a physical lineup, the deputy chose to use the show-up I.D (which is very suggestive). She also failed to separate the witnesses, which is standard procedure, to avoid one witness influencing the other.

One of the other deputies that testified admitted that he had failed to search the suspect before transporting him to the hospital to be treated for bites he received from the K-9 deputy when he was arrested.

Two other deputies testified that they had patted down the suspect, but failed to find a knife and card case and key that belonged to one of the victims in the back pocket of the suspect. They also failed to locate $457.00 in cash in the suspect’s shoe, even though one of the deputies said he was pretty sure they had removed his shoes during one of the searches at the scene of the arrest.

However, miraculously the lead deputy did discover the knife, the card case and the cash when she searched the suspect before transporting him from the hospital to jail.

You may have deduced by now that I had some doubts about the defendant’s guilt even at this point in the case. That doubt only increased when we were told that the gun the deputies had discovered in an abandoned house, and allegedly had been used by the defendant, had been swabbed for the suspect’s DNA, but not his fingerprints or the victim’s DNA (even though the gun had been pressed against both victim’s skin). In addition the cash was checked for fingerprints, but despite the fact it was supposedly drenched in the suspect’s perspiration, it was not checked for his DNA. The card case was not swabbed for DNA or fingerprints and disappeared - never having made it into evidence - and the victim’s purse –which was discovered outside the abandoned house - was likewise not checked for either DNA or fingerprints.

Also a hat that was discovered near where the suspect was taken into custody was not checked for DNA to prove it was his.

I usually give law enforcement the benefit of the doubt, but in listening to them testify as to how they handled the multiple searches of the suspect and the way that evidence was handled, I found myself doubting their credibility and the reliability of the evidence that they had collected.

The only other witnesses were a crime scene technician and a crime lab scientist, who both testified to not finding fingerprints or DNA. I wasn’t sure why they were even called by the prosecution, as they added nothing to the case.
After the prosecution rested their case, I was not surprised when the defense also rested without presenting any witnesses or evidence of their own.

We then heard brief closing arguments from the prosecution and defense, as well as a rebuttal by the prosecution.
The judge then charged us. He explained the pertinent law and the rules that applied to the case and we retired to the jury deliberation room.

Once in the deliberation room I was selected as the jury foreman and we set about trying to decide the case. I decided to take a preliminary vote to see where the six of us were starting. I had expected that all six of us having heard the same evidence and heard the same testimony would have the same doubts. I was mistaken. Three of us (myself included) felt the defendant was not guilty beyond a reasonable doubt. The other three felt he was guilty.

This is where things get disturbing for me. Two of the female panelists felt the defendant was guilty for reasons outside the law. One thought he must be guilty of something because he ran from the deputies. The other thought he was guilty because he failed to testify on his own behalf. Both of the women and the male juror that also voted “guilty” were willing to overlook the inconsistencies in the victim’s testimony, the suggestive show-up I.D. and the fact that although the defendant had been searched 3 times prior, it was only on the fourth search that the cash, knife and card case were discovered on his person.

I tried to explain that running from the cops didn’t make him guilty and that we could not hold his failure to testify in his defense against him. But in the end we were deadlocked 3 to 3 and the case ended in a hung jury.
After being dismissed, I went online to research the case a bit further and discovered that what we heard was actually a retrial of the case after an appeals court had ordered a new trial for mistakes made by the judge the first time around.

I am not sure whether the state’s attorney will choose to retry the case a third time.

After the verdict in the Casey Anthony trial many people said they believed the jurors in that case were “stupid”. I wrote at that time that the public, having watched the trial on television, did not understand that the jury did not hear and see everything that viewers had, because they were asked to leave the courtroom at times and because they were sequestered and prevented from reading or watching reports about the case.

Having served on a criminal case, I can tell you we were asked to leave the courtroom numerous times so that the attorneys and the judge could discuss whether testimony would be admitted in the case, etc. We were also specifically told not to talk to anyone about the case (or blog, tweet, text, etc.) and not to read or watch anything about the case.

From the conduct of the sheriff’s deputies, to the behavior of my fellow jurors, my jury service was an eye-opening lesson in our criminal justice system.

Saturday, July 16, 2011

Casey Anthony is Irrelevant

As disturbed as I was by the verdict in the Casey Anthony capital murder trial, I have been even more disturbed by the reactions of the public to it. I am especially concerned with some of the things that people who call themselves constitutional-conservatives have been saying in the wake of this very emotional trial.

I have heard and read statements from people ranging fromthe defense attorney’s are to blame, to we should have professional jurors, to our justice system is broken. But nothing could be further from the truth.

The system worked just the way it’s supposed to, it gave the accused the presumption of innocence and it put the burden of proving the guilt of the accused on the State, i.e. the prosecution.

The prosecutors had the choice of what to charge Casey Anthony with and they chose to charge her with First Degree- Capital Murder. They chose to seek the death penalty for a case that was largely circumstantial, with limited forensic evidence and unreliable witnesses. They made this decision even though the State of Florida has only executed 2 women previously and never a mother for killing her own child.

I am not going to retry the case here, but I am going to try to make some critical points:
  1. Not everything that the public heard, saw and read was known to the jury. They were sequestered and were often asked to leave the courtroom for discussions that the public saw on television.
  2. The jury was instructed to disregard certain things that the judge determined were inadmissible.
  3. The jury had the responsibility to decide which witnesses and which witness testimony was credible.
  4. The jury was doing their civic duty by serving on this case and taking on the huge burden of deciding not just guilt or innocence, but also life and death.
  5. The prosecution had a theory about how Caylee died, but the medical examiner never said what caused her death.
  6. Much of the forensic evidence that the prosecution used relied on new science and techniques, that had never been admitted in a Florida court before and which had not been peer reviewed.
  7. Casey Anthony was not found innocent, she was found not guilty beyond a reasonable doubt. The two standards are not the same.
Our system is not perfect, but it is the best one around. Just ask Amanda Knox about being on trial in another country, even a “civilized” country like Italy. The presumption of innocence is what protects all of us from the power of the State (which so many people distrust these days) and separates the United States from every other nation on the planet.

There is a saying in criminal law, “It is better that ten guilty persons go free than one innocent person be imprisoned”. We can all agree that we think Casey Anthony killed Caylee Anthony and we can all disagree with the jury’s verdict. But we should not disparage the jury or the jury system; lest any of us are unfortunate enough to find ourselves accused of a crime and require the presumption of innocence.

We can dislike the tactics that Jose Baez used to get his client acquitted, but his responsibility was to provide his client with the most vigorous defense possible. He did that and he overcame the State of Florida with all its vast resources.

For those that think we should have “professional” jurors, I would say that is a terrible idea. It would give the State 12 paid arbiters of fact, in addition to the judge (the arbiter of law) and the prosecution with all the means at its disposal. What innocent person could possibly be acquitted with the deck stacked against them like that?

I understand and empathize with the anger that everyone feels towards Casey Anthony and the fact that Caylee has not gotten justice. But killing or incarcerating Casey will not bring Caylee back and the jury did not find that the prosecutors proved their case beyond a reasonable doubt.

If you want to lay some blame, I suggest you blame the police officer that in July of 2009 did not want to trudge into the swamp to examine the body he was called to investigate and berated the man who had called 911. The officer was fired for his actions.

You can also blame the prosecutors for choosing to overcharge Casey Anthony and then not presenting a strong enough case to convict her. They could have filed lesser charges and probably have sent her to prison for 30 years. But they made a political decision to go for the gold and it cost the victim justice.

You might also want to look at the media. They tried this case in the court of public opinion and splashed it on the television 24/7. Ask yourself, “Why”? Would they have covered this case with the entire spectacle if the accused weren’t some pretty white girl (with pictures of her partying in skimpy outfits), with an adorable 2-year old white daughter? I think not.

And of course you can blame Casey herself for lying to her parents, brother and friends, as well as to investigators.

Casey Anthony is irrelevant. If she is guilty, she will eventually face her ultimate judgment. What is important is the rule of law, the presumption of innocence and the Constitution. If we ignore those then we become nothing more than a mob doling out revenge, not justice.  Like it or not, the system worked. Sometimes the results just are not what we would like them to be.

It is also worth noting that these constitutional rights should not be afforded to illegal enemy combatants and terrorists caught operating abroad.

The actions of Attorney General Eric Holder and President Obama in circumventing Congress by holding and interrogating a Somali terrorist, Ahmed Abdulkadir Warsame, aboard a Navy ship- without Miranda warnings- then bringing him to New York for a civilian trial is a mockery of our system of justice. He should have been transported to Guantanamo Bay detention facility for interrogation and a military commission trial.