SCOTUS: Judges and Prosecutors are Incapable of Misconduct

Last week, the U.S. Supreme Court announced it would not hear the appeal of Sholom Rubashkin, sentenced to 27 years in prison in a case that involved a federal judge who was in on the planning of the case with government agents from the original raid on his business. The court is saying, in essence, that federal judges are not bound by any appreciable rules of conduct, and that there is no recourse for the citizen who is victimized by judicial and prosecutorial misconduct.

To the casual observer, the SCOTUS did the right thing. Here is a guy who broke the law, defrauded a bank, and got what he richly deserved, or at least that is how the media has portrayed this case. However, a number of people have taken a hard look at the conduct of Judge Linda Reade and have come up with a much different opinion: that what she did was an outright travesty of justice.

Judges and prosecutors have awesome powers and the SCOTUS already has ruled that they are immune from any challenges from private citizens. In the end, we have yet another example of the government "investigating" the government and declaring that the government has acted justly.

In rejecting Rubashkin's appeal, the SCOTUS also ignored legal pleas from a large number of former officials of the U.S. Department of Justice and civil liberties advocate Harvey Silverglate. When people of disparate political opinions are willing to join together and ask the High Court to examine the conduct of federal officials, this is something not to be taken lightly. Instead, even their opinions were blown off as though they were nothing.

Sholom Rubashkin and the Unethical Judge

A couple years ago, I wrote on what I believed was a miscarriage of justice in the federal case against Sholom Rubashkin, the CEO of a now-shuttered kosher meat facility in Iowa. The Rubashkin case is one that draws a lot of different opinions, in part because there are so many elements involved from the hiring of illegal immigrants to accusations from PETA about mistreatment of animals to the issue of financial fraud.

I addressed each of those issues in a previous blog, but it seems to me that the worst part is the conduct of the federal judge in that case, Linda Reade, who immersed herself in the original immigration raid of the plant and who also seemed to have a role in directing how federal authorities should act. As Emily Bazelon wrote recently in Slate, Reade's involvement definitely seemed to cross the line of judicial impropriety:

Still, in asking the Supreme Court to take the case, Rubashkin’s lawyers—who now include former Solicitor General Paul Clement—are asking the justices to take a stand on Reade’s participation in the immigration raid planning. The argument is that Reade and the prosecutors had an obligation to tell Rubashkin’s lawyers about all that pre-raid planning. Except in very limited circumstances, judges aren’t allowed to meet with one side in a case without the other, and so those weekly meetings broke the rules. Several friend-of-the-court briefs have been written in support of Rubashkin’s position, or are on the way, and the signers include former judges and U.S. attorneys. One of the briefs was co-authored by my sister Lara, who is a clinical teaching fellow at the University of California Hastings law school, and lawyer Allison Ehlert.

Bazelon adds:

In response, Reade and the government have said there’s nothing to see here. The judge attended all those meetings simply to save her court a headache. Her support for the raid was about logistics, nothing more, and there’s no reason that wearing her administrative hat would have biased her against Rubashkin once she put her judge hat back on. Maybe so. But judges aren’t just supposed to be impartial, they’re supposed to make sure they don’t create the appearance of bias. Wouldn’t it be better, as a general rule, if judges who meet regularly with prosecutors in advance of a cascade of high-profile indictments didn’t hear the cases that follow? Rubashkin’s prosecution was the culmination of the raid, in a sense. Getting him was the best way to justify the spectacle of the processing of the sad sack Guatemalans on the cattle fairground, which we know from her comments to the New York Times Reade felt she had to defend (and which another federal judge in Iowa later called a “travesty”).

The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias. When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too. The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade. But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well. Judges shouldn’t be able to make up their own rules for policing themselves.

 While Bazelon is not sympathetic to the rest of Rubashkin's legal case (contrary to my own opinion), nonetheless I believe that when a large number of former federal legal luminaries are willing to file briefs with the court saying they have a problem with what has happened, then I believe this is not an ordinary situation. Like Bazelon, I do believe that the Supreme Court will defer to Reade's judgment, which I believe will be a terribly mistaken thing.

The Rubashkin camp has put out a video that I believe is worth watching, as it quotes my friend and mentor, Harvey Silverglate, and I believe it does make a good case for pointing out the travesties in this particular case. Yes, it does come from Rubashkin's supporters, but in federal criminal cases, we simply cannot depend upon either the government or the mainstream media (which generally adores federal prosecutors) to tell the truth.

The High Court is due to issue its decision on granting Rubashkin certiorari on September 24. Given the outrages that the SCOTUS already has unleashed in the past few years, I only can hope that for once in their lives the justices care about the things that judges and prosecutors actually do that either violate the law or are very suspicious. We shall see.

America as South Park Nation: Where Life is a Bad Cartoon, Part I

In the bawdy, satirical cartoon show, South Park, one episode seemed to be something akin to life imitating art (if one calls the show "art"). Called "The Wacky Molestation Adventure," the children in town are able to make their parents legally "disappear" simply by accusing them of molestation.

Not surprisingly, the children revel in their newfound power and the authorities are happy to go along, since everyone is against child molestation. The town soon is denuded of adults.

While South Park is supposed to be farce, nonetheless its plot is not far from the current situation in the United States, where a mere accusation of child molestation, child abuse, sexual abuse, or even rape can end in a legal nightmare for anyone falsely accused. As in the cartoon, when the epidemic of false accusations created circumstances that got out of control, we are seeing what happens in a country when people are empowered to make others disappear by the simple uttering of a lie.

As I have read the horrific story of the school bus monitor who was harassed to tears by a group of seventh graders, I cannot help but wonder if this whole "experiment" in empowering children to falsely accuse adults because we must "protect" children at all costs has played a role not only in that case but in the way children now interact with adults. On top of that, the regular use of accusations of child molestation in child custody battles certainly cannot help how children view adults, especially when the authorities literally coach them to lie.

When I was a student at Baylor School more than 40 years ago (at that time, Baylor was an all-boys military school), students often would find unpopular teachers and make things difficult for them. However, none of us could have imagined acting as the children on that bus did, especially when we were seventh graders. This would have fallen into the "unthinkable" category.

Of course, back then we did not have the authorities actively encouraging us to make accusations of serious crimes against adults, or at least accusations that patently were false. Unfortunately, since then we have seen the advent of the Child Abuse Prevention and Treatment Act, or CAPTA, also known as the Mondale Act. This law plus subsequent federal statutes not only made false accusations more likely, but also placed government authorities in a position where they were to believe that ANY accusation was true and must pursue the charges as far as they possibly could take them.

The Mondale Act included two important provisions that would eviscerate rule of law and also empower children to go after adults that they didn't like. The first was money that was promised to state and local agencies to assist in prosecuting alleged abusers and for treating children that were abused. The second provision simply did away with the bedrock of Anglo-American law: due process, and in so doing eliminated many evidentiary standards that guaranteed innocent people would be convicted.

At the time, authorities needed corroborating evidence to go along with an accusation, as the simple word of a child with nothing else to help confirm the charges (such as evidence that the accused actually was in that place when the alleged molestation/abuse occurred) was not considered to be credible enough to put someone behind bars for a long time. By ridding the authorities of that troublesome requirement that the accused actually might have committed the acts, the wrongful convictions came and came and came.

During my coverage two years ago of the Tonya Craft case, I heard from another private investigator in Georgia, Ron DeLaby, who told me of a very sad situation. Schools regularly have assemblies in which students are told about "good touch, bad touch" situations with students then urged to report anyone who has given them a "bad touch."

One does not need much of an imagination to know what has happened because of this "touch" emphasis: students try to outdo each other in reporting these alleged crimes. Furthermore, if an adult has upset them, or maybe a parent or grandparent has punished a child for something or has kept a girl from seeing a certain boy, the incentive is there simply to get that person out of the picture.

In the case of which DeLaby spoke, after the girl and her friends went to the assembly, a number of them reported "bad touches," and the girl in question felt left out. She then accused her grandfather of molesting her, and he went to prison. Some time later, she recanted her story and told the authorities the truth, but already having nailed their prey, prosecutors were not interested in hearing what she had to say; her usefulness to them ended when the jury declared, "Guilty."

A number of prosecutors in this country have used the Mondale Act to catapult themselves to the national scene. Janet Reno engaged in especially abusive and dishonest tactics in securing high-profile child molestation cases and her crusading landed her the job of U.S. Attorney General during the Clinton years. (Reno demonstrated her love for children by massacring a large number of them in Waco just weeks after she was sworn into office.)

By eviscerating due process and rules of evidence, federal law has empowered prosecutors and has protected them when they engage in outright criminal activities. The Craft case was especially egregious, as prosecutors Chris Arnt and Len Gregor, "judge" brian outhouse, and Det. Tim Deal colluded to let Deal fabricate a document during the trial in order to fill a giant hole that the prosecutors had dug for themselves.

(Even in Georgia, fabricating evidence in a criminal trial is a felony, except that a representative from the Georgia State Bar told me that prosecutors only were "doing their jobs." So, if one wishes to live a life of crime and do it under color of law, prosecution should be the chosen profession.)

Furthermore, under the non-rules of evidence from the Mondale Act, Arnt was able to claim that molestation occurred without giving place, date, or time. In one ridiculous act, he even charged Craft with molesting Sandra Lamb's daughter in the house that Craft had purchased. However, the alleged molestation was supposed to have taken place long before Craft even lived there.

(Let me note that after the prosecution rested, "judge" brian outhouse upheld that charge, claiming that the prosecution had given "compelling evidence" for the truthfulness of that charge. What outhouse did not realize was that by then the jurors already had concluded that Arnt and Gregor were feeding them lies and that outhouse was enabling the whole sorry show.)

It is true that Craft was acquitted, but only after having to spend more than a million dollars in her defense to debunk charges that were transparently false. Sandra Lamb, who was ground zero for the false accusations, and her daughter knew exactly what they were doing. Arnt advised them that they had to get three children to make accusations, so they chose Tonya's daughter, who was the subject of a custody battle between Tonya and her ex-husband, Joal Henke, and the daughter of Jerry and Kelli McDonald, a child who simply did not make a particularly good witness, judging by her claim on the stand that she knew where Tonya had touched her because her mother said that was what happened.

Pre-Mondale Act, no prosecutor could have made the charges that Arnt and Gregor brought into the "judge" brian outhouse's courtroom. There was no corroborating evidence, nothing. However, Arnt wanted to use the case to catapult himself to stardom, Sandra Lamb wanted to get back at Tonya Craft for whatever petty reasons would motivate "Mommie Dearest," and Joal Henke and his wife, Sarah, wanted Tonya out of the way so that they could have her children. (Gregor just wanted another opportunity to impress people as "the man," not realizing that his courtroom antics revealed him as the buffoon he really is.)

Unfortunately, the Mondale Act is not the only federal statute that has made a mockery out of due process and rules of evidence. The Violence Against Women Act provides the same legal framework, which means that any woman can accuse any man of rape, and no matter how incredible or ridiculous the accusations, authorities MUST investigate them as though they were true, even if it is obvious they are a lie.

Remember the Duke Lacrosse Case? The charges stayed up for a year even though the authorities knew from the beginning that they were false. It was not the power of the accusation or the supposed "mountain of evidence" that prosecutor Mike Nifong claimed to have possessed (with the "mountain" really being a giant hole), but rather the provisions of the VAWA that kept the case alive and forced the families of the accused to spend about five million dollars even though the case never went to trial.

From Durham, North Carolina, to Narragansett, Rhode Island, the VAWA, like the Mondale Act, has enabled false charges of sexual assault and rape against people who were convenient targets for the authorities. As in the old Soviet Union, where anyone could make a troublesome neighbor "disappear" with a false accusation, the United States of America has become a place where innocent people don't have a chance when faced with judges, police, and prosecutors that prefer lies to the truth.

Next Up: The Violence Against Women Act and the injustices that it has spawned.

Will Campaign Signs Bring Down the Outhouse?

During Tonya Craft's trial, "judge" Brian House acted according to signals given by prosecutor Chris Arnt, and that was the least of his wrongdoing. In a previous post on this farce of a "judge," I listed a number of things that House did, all in violation of the Georgia Code of Judicial Conduct that supposedly governs Georgia judges.

At best, House is a dishonest judge. At worst, he is a criminal.

Because the Judicial Qualifications Commission in Georgia is toothless and because, frankly, people at the Georgia State Bar are completely impervious to wrongdoing by judges and prosecutors, House and his friends have figured that they are invulnerable. That is why House, Arnt, and Len Gregor, along with Tim Deal, figured they could get away with shredding the law during the Craft trial and why House figured that Catoosa County jurors were as craven as were he and his friends.

But now, "judge" Brian House is in hot water with the JQC. Why, as Callie Starnes of WRCB-TV says in her story, it seems that not only did "judge" House have campaign signs in his yard in violation of Georgia's ethics code, but then lied about it when she asked him about the signs:

"A judge, or a candidate for judicial election shall not publicly endorse a candidate for political office," said Jeff Davis, Georgia Judicial Qualifications Commission's Director.

Channel 3 called the Judicial Qualifications Commission, or JQC, after receiving numerous tips about two local judges.

Pictures provided to Channel 3 show a banner on part-time Juvenile Court Judge Michael Giglio's law office endorsing Michael Caldwell for superior court clerk.

Superior Court Judge Brian House, who serves in the Lookout Mountain Judicial Circuit, leases the building to Giglio.

House also currently employees Caldwell as his assistant.

Channel 3 found a similar sign in front of House's Ringgold home.

According the Georgia Code of Judicial Conduct, judges are not allowed to publicly endorse a candidate for public office.

 But it gets even better. When Starnes confronted House about the signs, he engaged in what law schools call "Kettle Pleading" in which the person being accused tells three different -- and mutually-exclusive -- stories. Here is House's own version of Kettle Pleading:

Commission Director Jeff Davis says all judges know the rules.

"Every judge in the state is provided a copy of the code of judicial conduct, and is expected to know it, and expected to adhere to it," he told Channel 3 in a phone interview.

Channel 3 took a copy of the code of conduct when we paid a visit to Judge Brian House's home to ask about the signs.

He changed his story three times.

"I didn't put it there," said House, standing on his front porch Monday.

"I guess Mr. Caldwell did, I didn't put the sign up," he said, when asked who placed the sign on his property line.

"I have no idea who put it up there," House then said when asked if he believed Michael Caldwell would take responsibility for the sign's placement.

House then told us the sign was on his neighbor's property.

"I didn't put it there, I assumed Anthony put it there," he said.

Channel 3 talked to Judge House's neighbor, who tells us the sign is not his. He says it belongs to Judge House, and House didn't ask before placing it on the property line.

Granted, this is penny-ante stuff compared to the massive misconduct that "judge" House committed during the Craft trial and his actions that observers have told me occur in other judicial proceedings. In fact, I would say that one would need no more proof than this to declare that the JQC approaches issues in the same manner of which Jesus accused the Pharisees of doing when he told them that they will "strain out a gnat and swallow a camel."

Nonetheless, like Al Capone going down on tax evasion, I would say that anything which calls attention to the fundamental dishonesty and utter lack of integrity that characterizes Brian House is a good thing. Thus, in honor of this latest caper, I would like to present a new symbol for the "judge's" campaign, complete with inside decor:

Alcohol, Lies, and Ambition: Another Texas “Justice” Outrage

“Good fences make good neighbors,” – Robert Frost in “Mending Wall”

 A Texas jury in 2007 believed prosecutors that claimed Hannah Overton deliberately force-fed salt into her foster child (whom she and her husband were going to adopt) four-year-old Andrew Burd until he became so ill that he soon died. Overton received the sentence of life without parole and is in prison.

The lead prosecutor, Sandra Eastwood, had desperately wanted to win and had told her second chair, Anna Jiminez, later would testify under oath that Eastwood had told her, “I will do anything to win this case.” Before the trial, Eastwood, the police, and, of course, the local media, already had demonized Overton and her family. During the trial, the prosecutors, judge, jurors, and the media pointedly ignored the very complex medical evidence that pointed toward the child having a rare disorder, and why not? These are people who hate complexity; simple narratives and villainous witches are much more preferable, especially when the accused might have religious beliefs that “sophisticated” people might discard.

The Overtons are Pentacostals and to Progressives that populate the mainstream media, Pentacostals are even stranger than men from Mars and have no place in a Progressive society. To make matters even worse, Nueces County District Judge Jose Longoria clearly sided with the prosecution and ensured that at best it would be a show trial. Jurors did what Texas jurors usually do: ignore any exculpatory evidence and convict, many times sending the accused to the execution chambers that are so frequently used in the Lone Star State.

Yet, things did not seem to make sense. Hannah Overton had no police record, was highly-regarded in her church, and had never engaged in any acts of violence against her children. Nonetheless, jurors and Longoria believed Eastwood and Jiminez when they claimed Overton somehow snapped under the pressure of having a fifth child and killed her soon-to-be-adopted son.

As often is the case in Texas, there was a story that was not told, and evidence that neither jurors nor the defense had seen, but that prosecutors knew. But Nueces County prosecutors also knew something else: Sandra Eastwood was an alcoholic and drug addict, and was well-known for lying. She was ambitious, and often impaired, and those two characteristics meant that defendants, and especially high-profile defendants like Hannah Overton, would be tried in circumstances not unlike what was known to happen in communist countries like the former U.S.S.R.

 Prosecutors are officers of the court, and they also are required by law and by the rules set by the Texas State Bar not only to act ethically, but also to report unethical or dishonest actions of themselves or their peers to the authorities. Instead, as is usually the case in all prosecutorial offices in this country, both state and federal, the “ministers of justice” of Nueces County were silent, as they protected their own.

 Anna Jiminez knew a lot of things about Eastwood, and later after Jiminez was elected Nueces County District Attorney, she fired Eastwood. As second chair, she knew the case file and she claimed later that she suspected Eastwood was withholding evidence in violation of the Brady ruling by the U.S. Supreme Court, and by the Rules of Conduct for prosecutors in the State of Texas. But while Jiminez reported Eastwood to her superiors, according to later testimony, she never reported Eastwood to the Texas State Bar, as was required by the rules of conduct that govern her as a lawyer and as a prosecutor. (Not surprisingly, Eastwood’s superiors did nothing. They enjoyed winning and if a few innocent people went to prison, that was collateral damage. And, anyway, everyone already knew that Hannah Overton was a monster.)

Fortunately for Overton, a number of people were not willing to accept this conviction and began their own investigations. The best journalism was done by Pamela Colloff of Texas Monthly, who had this excellent and lengthy article in January of this year, and readers can find the particulars of the case if they so choose. Instead, I will deal with the police and prosecutorial abuse that sent Hannah Overton to prison for a “crime” that never happened.

 Nonetheless, one cannot blame police for being suspicious when the four-year-old child was brought to the emergency room and then later died. Colloff writes:

The death of a child – particularly a sudden, unexplained death in which abuse is suspected – evokes strong emotions, even among seasoned investigators, doctors, forensics experts, and prosecutors. A more thorough investigation would have uncovered ample evidence to suggest that Andrew had an undiagnosed eating disorder, raising the possibility that he had unintentionally consumed too much salt on his own. But law enforcement officials are accustomed to handling child abuse cases, not medical mysteries, and salt poisoning is rare enough that most emergency room doctors will never encounter a case during their careers. Against the backdrop of possible abuse, authorities wasted little time. Larry was charged with injury to a child for failing to get Andrew timely medical attention. The onus for the boy’s death fell on Hannah, who was charged with capital murder.

As they do in so many situations, the local journalists acted as little more than stenographers. Writes Colloff:

Corpus Christi’s introduction to Hannah came the following week, when she and Larry were arrested and led past a bank of TV cameras outside the Nueces County jail. News reports that followed, prominently featuring their grim-faced mug shots, cast the Overton home as a house of horrors. (“More shocking details on abuse suffered by four-year-old before death,” began one breathless report.)

Colloff adds:

The media coverage of the case stirred widespread outrage. The Corpus Christi Caller-Times’s online comments section filled with the vitriol of readers, some of whom called for Hannah to receive the death penalty. (“You can just tell by looking at her how evil she is,” one wrote.) Fueling the public’s antipathy was an affidavit written by a CPS child abuse investigator named Jesse Garcia, who claimed that Hannah had admitted to forcing Andrew to drink two cupfuls of “chili with water” and quoted her as saying that she then “beat the shit out of him.” Garcia never produced any documentation or witnesses to corroborate his claim, and internal police memos show that law enforcement officials doubted the veracity of his story. Hess disavowed Garcia’s account at a court hearing regarding the Overton children, and prosecutors never entered Garcia’s affidavit into evidence or called him to testify at Hannah’s trial. (He was subsequently fired by CPS after having three car accidents on the job in less than six months.) But the damage was done: that Hannah had confessed to force-feeding Andrew and beating him was repeated, uncorrected, on the local news.(Emphasis mine)

Rudy Giuliani said during his infamous Wall Street prosecutions in the late 1980s that once he made the accusations, the media would do his work for him. Whether it was the “sophisticated” New York media, such as the New York Times or Wall Street Journal, or the newspapers and television stations near Corpus Cristi, the relationship between prosecutors and the press has been insidious. Journalists rush to judgment, as they did in the case against Michael Milken, the Duke Lacrosse Case, and the case of Hannah Overton. Later, after the truth comes out, media representatives claim that they have “learned our lessons” and promise not to jump to conclusions. And then they repeat the process again and again.

In the area of “justice” and criminal accusations, narratives are a powerful force, and most journalists and government agents like to keep them simple: Michael Milken and Jack Abramoff were greedy Jews who lost their way and broke the law to get rich; the Duke lacrosse players were “privileged” white “jocks” in a violent sport who brutally beat and raped a poor black woman because they believed they were so “privileged” that they could get away with it; George Zimmerman was a white racist who hated blacks and gunned down Trayvon Martin in cold blood. The simple stories were so compelling; evidence that undermined the narratives was ignored or shouted down.

And so it was with Overton. The police and prosecutors had their narrative, and they were not going to let their prey go free, and the media simply did what it always does. But the prosecution also withheld evidence, as was discovered in an evidentiary hearing that ended last month. Yes, while Texas is a place where at least two innocent men have been executed recently, and while prosecutorial misconduct has dominated other wrongful convictions in that state, even the Texas State Court of Criminal Appeals decided that the evidence that jurors said convicted Overton was questionable, and that the court needed to examine what had happened.

 For example, after he was brought into the hospital, Andrew vomited and doctors took samples, but the defense never was told about it nor given any information. Colloff explains:

Forensic pathologist Judy Melinek, an assistant medical examiner in San Francisco who had testified at Hannah’s trial, then took the stand to explain how critical this sample would have been to understanding exactly what had happened to Andrew. Determining the precise makeup of his stomach contents and the time they were collected, she said, would have been pivotal in a case in which the defendant was accused of poisoning the victim. After reviewing all the evidence, Melinek said, she firmly believed that Andrew had ingested a fatal amount of salt on his own. Her opinion was bolstered by the testimony of Edgar Cortes, an emergency medicine pediatrician who had seen Andrew twice before his death. Cortes maintained that he had informed Eastwood prior to trial that the boy had suffered from significant cognitive delays. These delays, Cortes now testified, put Andrew at greater risk for eating inappropriate items and ingesting something lethal. Yet Andrew was portrayed during the trial as a normal four-year-old. As for why the jury never heard his medical opinion, Cortes stated, “I felt like the prosecution had its own theory about what happened.” 

At the evidentiary hearing ordered by the appeals court, Dr. Michael Moritz, one of the world’s leading experts on salt poisoning, told the court that none of the scenarios painted by the prosecution made sense, given all of the cases of salt poisoning he had seen:

Intentional salt poisoning, the doctor went on to explain, is extremely rare. When it does occur, the victims are often bottle-fed babies whose food supply can be easily tampered with. Moritz stated that there was only one documented case in which an older child—a five-year-old—was poisoned with salt, and there were obvious signs of a struggle, including lacerations to his lips and gums. Yet Andrew had no such lacerations. Typically, Moritz added, someone who salt-poisons a child is mentally ill or a drug addict and has a well-documented history of child abuse. “So what we’re seeing in this case does not fit with any cases of intentional salt poisoning in the literature,” Moritz said.

Judge Longoria periodically glanced down at the doctor when he spoke of children poisoning themselves, studying him with skepticism. Moritz described how “voluntary salt intoxication” almost uniformly happened to children who fit a narrow profile: they were between the ages of one and six, they had been in the foster system or were from abusive homes, and they had some form of eating disorder, such as pica. Andrew, who had tried to eat everything from cigarette butts to glow sticks to toothpaste, fit this profile well. 

Moritz had not testified at Hannah’s trial, and his testimony would seem to have been authoritative, but Nueces County prosecutors Doug Norman and Bill Ainsworth claimed that there was nothing new and that the jury’s verdict should stand no matter what. And then Sandra Eastwood took the stand.

 Eastwood admitted to being a recovering alcoholic who abused prescription diet pills during the trial. (Notice that while prosecutors will go after others who do the same, Eastwood got a free ride.) While she claimed to have turned over everything to the defense, it was clear that she was less-than-competent to give any useful information at all:

Under withering questioning from (attorney Garry) Goldstein, Eastwood answered “I don’t know” or “I don’t remember” 72 times when asked whether she recognized notes written in her handwriting, emails sent from her own account, and papers signed with her signature. “I have trouble remembering phone numbers,” she said. “I have trouble remembering what I had for lunch yesterday. I think that’s normal. I had hundreds of conversations and there were thousands of documents, so I don’t remember specifics.”

 Goldstein became so exasperated with her that he asked if she remembered the trial itself. “You recall the trial, do you not?” he said. “The individual got life in prison.”

“The question is . . . ?” said Eastwood.

“Do you remember the trial?” Goldstein asked, his voice rising. “Yes,” she replied. “It ended in life without parole,” Goldstein scolded. “That means they spend the rest of their life in prison. You remember cases that have those kinds of consequences, don’t you?”

“Yes,” she said softly. 

When Anna Jiminez took the stand, she said that she believed that Eastwood “was not truthful,” and that Eastwood had told her there had been no vomit or vomit samples taken. She admitted that she had no proof of Eastwood’s alleged misconduct, but then added that the kind of circumstantial evidence that made her believe Eastwood had lied was the kind of evidence that gets people convicted in criminal court.

With the hearing ended, prosecutors parroted their own views that the hearing had produced nothing to make them change their minds about Hannah Overton’s guilt. However, it is a very rare prosecutor who even admits that any conviction was wrong and Texas prosecutors are, well, Texas prosecutors: even when the evidence against them is overwhelming, they make up fantasy stories or just lie.

I have no idea how this case will end. Judge Longoria, as one might expect, ignored all of the medical evidence given to him and recommended that Overton not receive a new trial. However, he does not have the final say in this situation. In retrospect, there was no way that Longoria ever would admit to having made errors during Overton’s 2007 show trial, and it is a rare judge anywhere that will admit to having been wrong. Nonetheless, I imagine that with the media now questioning the verdict with the same ferocity that they once condemned Overton, even the Texas courts cannot ignore the firestorm. So, while it seems certain that Longoria will claim that “no new evidence” was introduced during the hearing, his superiors will overrule him.

As I see it, however, this case is much more than just another example of prosecutors bringing junk science into the courtroom and trying to make facts fit their narratives. The real story is that nothing is done about it, and that is because the U.S. Supreme Court – and especially the conservative wing – has torn down all of the fences that are needed to give ordinary citizens an opportunity to keep police, prosecutors, and judges honest.

In decision after decision, the SCOTUS has ruled that prosecutors must be given absolute immunity from lawsuits filed by people wrongfully convicted. True, the high court has claimed that official remedies exist such as criminal prosecution for wrongdoing or discipline by various state bars, including disbarment.

While this may sound good, one should remember that the disbarment of Duke lacrosse prosecutor Michael Nifong was extraordinary precisely because such actions by a state bar are extremely rare. Two years ago, I spoke to a member of the Georgia State Bar about extreme misconduct by two prosecutors in the district where I once lived, citing chapter and verse from the Georgia State Bar Rules for Prosecutors, and the woman to whom I spoke blew it off. “They were just doing their jobs,” she replied.

I asked, “Do you mean to tell me that suborning perjury (and the perjury was obvious, and some of the dishonest witnesses even have admitted to lying since the particular trial), lying to jurors during the closing arguments, making outrageous public comments, disrupting the trial with catcalls and loud noises, fabricating evidence and such are ‘their jobs’?” She hung up.

While it may sound highly official that prosecutors, police, and judges have government agencies which can levy charges and punishment upon them when they engage in misconduct, in truth, these agencies really are the proverbial foxes guarding the hen houses. Lawsuits filed by people actually injured by misconduct, however, are the only real mechanism that people outside the employment of government can employ to gain at least some matter of redress. Texas happens to be a big offender, but the problem is universal in this country.

Government agents in the “justice” system protect their own, as those entrusted with overseeing wrongdoing within their ranks operate according to a perverse logic: if the public were to see just how often misconduct and wrongdoing are part of the prosecutorial process, then the public would lose confidence in the honesty of the people engaging in misconduct and wrongdoing, and then might question that system that sends innocent people to prison or even their deaths. Got that?

Thomas DiLorenzo has written more than once that the government now has become the final judge and arbiter of its own actions, which destroys any meaningful systems of accountability. While government repeatedly tears down the fences that restrict the actions of government agents, it increasingly is erecting arbitrary fences around everyone else who is not part of the “club.” In the situation of prosecutorial misconduct, the problem is not “a few bad apples,” as prosecutors, judges, and the media tell us ad nauseum.

No, the barrel itself is rotten, and the few good apples that are left either are corrupted, compromised, or get out before they lose their souls.

An Open Letter to "Judge" Brian House, Part II

Well, "judge," I see that you have a new Facebook page, this one dedicated to your re-election. Since no one of which I know is running against you, I guess that makes your re-election about as certain as the "re-election" of Kim Il-Sung back in his day. Perhaps that is fitting, since your view of "justice" is about the same as that of a North Korean dictator.

Your "house" logo with all of your qualifications is cute. No doubt, your membership at Peavine Babdist (as we Southerners pronounce "Baptist") Church goes far and I am sure that the church is proud to have a judge, even a corrupt judge like you, and I am sure that the members of that church all sympathized with you when jurors two years ago acquitted Tonya Craft and then told the media that your obviously being in bed with the prosecutors was one of the reasons for their decision.

However, somehow I doubt that your preacher ever has done a sermon on Matthew 23 with you in the congregation, as it might hit too close to home. Yes, when Jesus accuses the pharisees of being like "whitewashed tombs," he might as well be referring to you and the other judges in the LMJC who parade about in their robes, have the bailiffs give the "Oh, yea" announcement, and enter the courts with the fanfare they don't deserve.

You see, "judge," you really are like one of those whitewashed tombs who is full of "hypocrisy and lawlessness" of which Jesus spoke. You regularly break the very rules that the State of Georgia has set for judges, and you don't even try to hide your actions. You claim to be independent, and then do little more than sit in your chair and perform your duties as Buzz's sock puppet.

And don't tell me that isn't true. People see what is happening and they let me know. No, I doubt you accept money under the table, but corruption isn't necessarily about being bought off. No, corruption is the presence of pre-determined outcomes that are presented as the outcomes that happen after there has been careful deliberation.

As I see it, instead of a house for the campaign symbol, you need to show the clean, white exterior of an ancient tomb, like I am showing below:

And, in order to provide truth-in-campaigning, I think the photo below gives the perfect touch:

Furthermore, you might want the following bullet points to go along with all of those wonderful things you put in your "house" logo:

• Speaks with prosecution witnesses before they testify without notifying the defense, which is a violation of the law and a violation of the judicial ethics that govern judges in the State of Georgia;
• Allows the prosecution to introduce knowingly (and obviously) fabricated "evidence" during a trial in order to fill holes in the case;
• Permits prosecutors to engage in disruptive and obnoxious behavior during trials, another breach of judicial ethics;
• Permits the admission of obvious perjury during a trial, including the admission of "I just remembered" testimony from a prosecution witness already proven to be a liar;
• Makes disparaging statements about the defendant and defendant's attorneys during a trial to others in the courtroom, which also is a violation of judicial ethics;
• Has secret (and even not-so-secret) ex parte meetings with prosecutors before and during a trial without notifying the defense, a violation of judicial ethics and an obvious attempt to work closely with prosecutors to rig a trial;
• Permits and even encourages prosecutorial intimidation of defense witnesses in breach of judicial ethics rules;
• Allows for the admission of obviously-false "jailhouse snitch" testimony in court despite the legal prohibition against testimony that knowingly is perjured;
• Orders bailiffs to seize cell phones and computers from people who say they favor the defendant, but permits supporters of the prosecution to have such things;
• Orders security checks for supporters of the defendant, including defense witnesses, but permits prosecution witnesses to enter the courtroom in another entrance without security, and then provides a room for them where they can have laptop computers and cellphones.

This list is partial, and only partial, but it speaks to your corrupt handling of the courtroom and the fundamental dishonesty that is the basis for everything you do. Yet, as I look at the Facebook page, I see "friends" who apparently love corruption.

There is Vickie Scoggins, a belch from a bad onion if ever there were such. (God help that poor horse she is riding in the picture. Enough said.) Scoggins was the "brains" behind the bogus Higgenbottom prosecution in which Alan Norton planned to use testimony from a "snitch" that he knew was outright perjury. Unfortunately for Norton, Scoggins, and you, "judge" House, the defense managed to find a letter that the snitch had written to Higgenbottom claiming that he knew the man was innocent.

Hmmm. You were preparing to put a man on trial knowing that the very "witness" against him already had put into writing that Higgenbottom was innocent. (Mr. Snitch changed his mind, apparently, when the prosecution offered him a nice deal of reduced time, something I am sure that you, "judge" House, knew about.)

As I noted before, I don't think you will have opposition and I'm sure that the good folks at Peavine Babdist and Oakwood Babdist will turn out in droves to vote you another term of corruption on the bench. And I guess a check of the pew Bibles there will find that the pages containing Matthew 23 and similar passages in the Bible have been torn out.

Brian House: Sock puppet for the prosecution

Reading comments on my last post, I was not surprised to see someone describe Brian House's courtroom demeanor. The descriptions given me by others who have watched this disgrace of a public official matched the latest I read and tells me that House really is not fit to be a judge.

House, it seems, takes all of his cues and direction from prosecutors, and especially Chris Arnt. What Arnt tells him to do, he does, period, which proves that Brian House is nothing more than the sock puppet for Buzz Franklin and his outlaw gang. That is pathetic, but Brian House is pathetic and is a pathetic excuse for a judge.

Wait a minute! Should I not be showing respect at least for the office? House may be incompetent and even craven, but should judges not receive respect?

My answer is this: Brian House does not respect his office and his place in the "justice" system, so why should I respect House or his office? Each day House purposely seeks to make a mockery of justice, knowing that even if he helps the prosecution frame innocent people, it will be years before the guilty verdict is overturned -- if it is overturned at all. (The Georgia Supreme Court and its appeals allies are notorious for twisting the law to fit whatever prosecutors in that state want.)

When a man or woman puts on the black robes of a judge, that person is under obligation not only from the people but also from God Almighty to do right, not to be a lying prosecutor's sock puppet or ventriloquist's dummy. When the Bible says that "to whom much is given, much is expected," it means just that. Much is expected from House, and he gives very little except what Buzz tells him to give.

He will answer one day for what he is doing, but in the meantime, one hopes he answers to the voters this year. However, I have my doubts that voters in the LMJC even care, and if they return this slice of refuse to the judge's bench, they will get the justice that they deserve -- none.

The LMJC and the Culture of Legal Corruption

When my family moved to Lookout Mountain in 1964, I must admit that parts of the region known as Northwest Georgia were reminiscent of places I have seen in Third World countries. Until moving there, I never had seen tarpaper shacks, children at school with what seemed to be permanently dirty faces, and general, grinding poverty.

Much has changed in that region since then. While there still are poor people, the poverty I saw hardly is widespread anymore, and in many ways, the region can be a pleasant place in which to live. Unfortunately, its legal climate is still stuck in 1964, a time when it was de facto legal in the Lookout Mountain Judicial Circuit for a white man to murder a black man.

My father brought us down to the LMJC when Covenant College moved from St. Louis to the old Castle in the Clouds, and at Covenant, which is located in Dade County, black students were told in no uncertain terms that they were NOT to be seen walking south of the college's property, and especially along Highway 157. In fact, over the years, a number of black students did receive death threats from the good people residing in the LMJC, but no one was killed. I'm sure that had someone killed one of Covenant's black students, he would not have been charged or prosecuted.

This was a time when the Dade County portion of Sand Mountain had a sign that declared: "N*gger, don't let the sun set on you here." The people there meant every word, and I still would caution any black person from venturing up there without an armed escort. That was the kind of place the LMJC was then, and while I don't see the same overt racism that once characterized the place, the area's "justice" system is racist, as Len Gregor proved during the Tonya Craft trial, when he lied to jurors, telling them that Ms. Craft has slept with a black man.

Now, for the most part, I do consider many of the people living in the LMJC to be honest, or at least decently honest. Unfortunately, they put up with a culture of corruption that exists with police, prosecutors, and, yes, judges.

To be fair, the LMJC hardly stands alone. My friends from Texas tell me horror tales of Williamson County police, courts, and prosecutors, and K.C. Johnson has a great post on his blog about the legal corruption that permeates Durham County, North Carolina. Interestingly, in many ways, the corruption of the LMCJ and Durham County seems to be similar.

What makes this point even more interesting is that demographically and politically, the two places hardly could be more different. The LMJC is overwhelmingly white and politically conservative. The most prominent college in that district, Covenant College, is both theologically and socially conservative. The region abounds with "Bible-believing" churches and I would venture to say that a large portion of the population claims to be "saved."

Durham County, on the other hand, is dominated by the hard left, including a coalition of blacks and activists associated with Duke University. Duke would be the antithesis of Covenant, its student body dominated by "hookup" culture, and the university does everything it can to promote gratuitous sex by handing out condoms everywhere and promoting disgusting things like the "Sex Workers Show" on campus. The university there is not "liberal" by any means; no, it is hard left, and though it is tied to the United Methodist Church, the university itself is virulently hostile to anything that might smack of Christianity.

Yet, when it comes to issues of justice, these communities are mirror images of each other. Durham was made infamous by its attempt to railroad three Duke University lacrosse players into prison for allegedly raping a black stripper, Crystal Mangum. As the case wore on, it became clear that the prosecutor, Michael Nifong, was lying and hiding exculpatory evidence, even while he rode the case to electoral victory, as the black voters of that county demanded a trial (and one person told Newsweek that it did not matter if the players were guilty, as they should be convicted solely because they were white).

The North Carolina State Bar intervened, and ultimately the charges were investigated by special prosecutors employed by North Carolina's attorney general. After a thorough investigation, the AG declared the players to be "innocent" and told the media that Nifong was a "rogue prosecutor." Later in 2007, the State Bar stripped Nifong of his law license, and he was removed as Durham County's AD.

Just five years later, Nifong's successor, Tracey Cline, a black woman who was second chair in the lacrosse case (and who lied about her involvement in it -- lying is part of the legal culture in that county), was removed from her office because of inflammatory statements she made in publicly attacking the senior judge in that county. (The judge also is black.) So, twice in five years, Durham County has seen its top prosecutors removed forcibly from office for misconduct.

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So, why would I compare the LMJC to Durham, despite all of its cultural and racial differences? Like Durham, the prosecutors in the LMJC have a sorry history of withholding evidence and fabricating documents. Unlike Durham, there is no state bar and apparently no judicial or legal apparatus at all in the State of Georgia that effectively deals with prosecutorial misconduct.

However, like Durham, the LMJC has a policy of taking sex cases to trial no matter what the evidence might be. And like Durham, prosecutors in the LMJC always take the side of an accuser in a sex crime, no matter how specious the evidence actually might be, and like Nifong, LMJC prosecutors, once they latch onto a sex case, take a "win at all costs" mentality that throws justice out the window.

It was not just the Craft case. Brad Wade sits in prison and the case that Len Gregor brought against him was so dishonest and so bogus that it is hard to believe he was convicted of child molestation. The reason is one more strike against the LMJC: defense attorneys in that district know that their job is to offer up defendants to the altar of conviction.

Now, when someone is charged with a crime in the LMJC, that person faces a terrible dilemma: hire a local attorney (which prosecutors and judges prefer) and automatically get convicted, or hire someone outside the LMJC who will be roundly attacked by prosecutors, sneered at by judges, yet might be willing to put up a real defense. In the Craft case, prosecutors Chris Arnt and Len Gregor routinely launched verbal attacks against Tonya's defense team, made snide remarks, tried to disrupt defense attorneys while they were questioning witnesses, yet "judge" Brian House not only ignored the misconduct of the prosecutors, but actually teamed up with them in an attempt to rig a conviction.

(While I know there are some attorneys in the LMJC who have integrity, nonetheless the judges and Buzz Franklin and his minions have made it absolutely clear that an aggressive defense is not permitted -- even while prosecutors are permitted to run wild. The one exception is Bobby Lee Cook, who is permitted to win once in a while.)

The jurors in the Craft case did something that neither House nor the prosecutors ever could imagine them doing: demonstrate integrity. The shocked, ashen look on House's face when the verdict was being read spoke volumes to the integrity or the lack thereof of the people in the LMJC who are in positions of authority.

You see, if there is one thing that I believe characterizes the LMJC is the belief of the principals in that district who really seem to believe that they ARE the law, and that they are entitled to do whatever they damn well please. Anyone who followed the Duke Lacrosse Case can attest to the arrogance of prosecutor Mike Nifong and everyone else in the Durham "justice" system. Like Buzz Franklin, Arnt and Gregor, Nifong knew that his authority alone could force a bogus case to trial, and he also believed that a Durham jury would be craven enough to convict the players despite the fact that Nifong had no evidence -- and he knew he had no evidence, which is why he continuously lied to judges throughout the proceedings.

Likewise, House teamed with Arnt, Gregor, and Tim Deal not only to help Deal commit a felony (fabricating a document during the trial in order to fill a huge hole in the evidence), but also meeting secretly with the prosecutors in order to further their strategy. Observers at the hearings before the trial began told me that House was utterly hostile to ANY attorney for Craft that did not come from the LMJC and that he routinely and automatically ruled against the defense no matter how ridiculous the prosecution's position might have been.

The trial itself was a farce, but the difference -- and this was a huge difference -- was that the jurors did not take the bait from House and the prosecutors and act in a hostile manner toward the defense. House, Arnt, and Gregor believed that the jurors automatically would discount EVERYTHING the defense did because neither they nor their expert witnesses were from the LMJC, but that is not what happened. Instead, the jurors acted like people who wanted to do justice, and did not act like House, Arnt, and Gregor.

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All of this raises a question as to why this kind of legal corruption exists in the LMJC. Why are police and prosecutors permitted to literally commit felonies in broad daylight, yet nothing is done? Why the silence from the media and the other gatekeepers, and especially the churches and the largest and most influential "gatekeeper" in the LMJC, Covenant College?

Other than one pastor, no one in a position of influence has spoken out about the massive lawbreaking, lying, and misconduct that has become the very trademark of the LMJC. During the Craft trial, no one from Covenant demonstrated a whit of concern as to what was happening, and at least one administrator there is friends with Holly Kittle, who to me represents everything that is wrong with the LMJC.

(Covenant says that it is "reclaiming the world for Jesus Christ," but the one part of the world that matters -- its own backyard -- apparently is off-limits when it comes to "reclaiming" for Christ. As I see it, the people there believe that legal trouble is for "other people," and if by chance someone from Covenant were to be falsely accused, most likely the administration and faculty there would do what evangelical Christians usually seem to do when one of their own is in crisis: shoot their wounded and move along.)

In the end, we see small, dishonest people gaining enormous amounts of power and authority, and they use it like a club against the innocent. Tonya Craft, Brad Wade, and James Combs can tell you that when it comes to dishonesty, no one does it better than the police, judges and prosecutors of the LMJC. Perhaps in my lifetime, someone, somewhere in a position of authority in Northwest Georgia will do what is right, but I have my doubts.

The lawless LMJC

Two years ago this blog went all-out during the Tonya Craft trial and aftermath because it was clear that cops like Tim Deal, prosecutors like Buzz Franklin, Chris Arnt, and Len Gregor, along with "judge" brian outhouse were knowingly trying to railroad an innocent person into prison. The not-guilty verdict and jurors' comments afterward about the outright crookedness of that trial apparently have had no effect on the LMJC crowd except to make them even more determined to get away with lawlessness.

Today, it is Joe Mowish, who has been arrested again on "gambling" charges when, in fact, that Franklin knows that Mowish's activities are legal. This is not a situation of a prosecutor and police misreading the law or misunderstanding it. No, this is a pure power play that is illegal and in a place where the law was respected would lead to disbarment of Buzz Franklin and his staff.

Because the Georgia State Bar does not consider prosecutorial misconduct to be something worth investigating, any actions to deal with the dishonesty and outright lawbreaking of Franklin, outhouse, and Deal are going to have to come from the citizens at large. That means that jurors should be hyper-careful when prosecutors lie, when Deal and others in "law enforcement" testify, and when people like outhouse make outrageous ruling.

There are a number of cases in the LMJC that have come to my attention and I will be looking into them. From what I can see, as long as the people who live in Dade, Chattooga, Walker, and Catoosa counties are happy with the kind of people who are in public office, we also can expect the kind of dishonest and illegal behavior we saw with the Craft case and everything else that these people foist upon the innocent.

Another Texas injustice?

Texas is known as an enterprise-friendly state and rightly so, but God help anyone moving into that state that is arrested. As Radley Balko writes in the Huffington Post, prosecutors are trying to get Hank Skinner executed before the courts order them to test evidence that could exonerate him of murder.

This is a compelling story, and I think Radley gets it right. Texas prosecutors for years have been able to get away with the worst kind of misconduct (and never receive even a smidgen of punishment) over the years.

And, if one is a judge in Texas, then that is a free pass to beat one's children. The moral of the story is this: do business in Texas, but you might not want to live there.

Who is this guy kidding?

In a recent op-ed article in the Wall Street Journal, James Kirchick, a contributor to The New Republic, deals with the recent statements of Shane Bauer after being released from an Iranian prison.

Now, I must admit that Bauer made statements following his release (Iran accused Bauer and two other American hikers in that region of being spies) that most Americans would not find agreeable, and Kirchick jumps on them heavily -- and with some justification:

On July 31, 2009, you're traversing a mountain trail in Iraqi Kurdistan, near the Iranian border. You're with one of your best friends and your girlfriend. Suddenly a group of Iranian border guards capture you, and the next thing you know you're in Tehran's infamous Evin prison accused of "illegal entry" and "espionage."

Your girlfriend is kept in solitary confinement and you can see her only for an hour each day. The Iranian government prevents you from contacting your family for almost a year, at which point they decide to let your mother visit you for two days at a Tehran hotel.

While your captors treat you humanely and provide three square meals a day, your Iranian co-prisoners aren't so lucky. Every night you hear their screams. Evin is the world's most notorious torture dungeon, where political dissidents (men and women) are routinely raped, beaten and subjected to all manner of physical and psychological abuse.

Ahmad Batebi, a student activist who spent 17 months in solitary confinement there, reports that guards kicked him in the teeth, dunked his head into a toilet "stopped up with feces," and whipped his back and testicles with a cable. When he tried to sleep, they slashed his arms with a knife and rubbed salt in the wounds.

As you sit in this hellhole, no less than the president of the United States takes up your cause, insisting that you "never worked for the United States government," that you're "simply open-minded and adventurous" and "represent the best of America and of the human spirit."

Following two years of strenuous work on the part of committed American diplomats, you are freed on $500,000 bail, paid by the billionaire Sultan of Oman. And what is the first thing you say upon your release?

"Two years in prison is too long and we sincerely hope for the freedom of other political prisoners and other unjustly imprisoned people in America and Iran."

But, it is the next paragraph that I do find objectionable and, frankly, untrue: "Mr. Bauer didn't name any of the "political prisoners" allegedly held in America's jails—because there aren't any." He goes on:

The American justice system is far from perfect. But it is transparent, offers the right of appeal, and is routinely challenged by a free press and active civil society. Moreover, it doesn't imprison people for their political beliefs.

I wish that were true. I wish that there were real transparency, and I wish that the appeals courts actually took more time to examine convictions that have occurred in kangaroo courts.

For example, I suspect that Brad Wade and Brad Cooper would laugh at the notion that American courts were "transparent." Because prosecutors are immune from serious punishment for acts of blatant misconduct, hiding exculpatory evidence, lying, and suborning perjury (sorry, but disbarment is not serious compared to innocent people going to prison) we have seen U.S. courts -- state and federal -- turn into charnal houses for the innocent.

A recent article in the New York Times spelled out what has been happening:

After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

Furthermore, it is clear that many prosecutions in the USA are done for political purposes or to appeal to a political constituency. A couple of examples include the federal trials of the police officers in the Rodney King beating case in Los Angeles and of Limerick Nelson, who was acquitted in state court of stabbing a rabbinical student to death in Brooklyn.

In both cases, the defendants had been acquitted at the state level, and while the verdicts were unpopular, constitutional prohibitions against double jeopardy should have been honored. Instead -- with approval of the courts -- the defendants were charged in federal court with different "crimes" for the same acts.

Not surprisingly, jurors got political message in both cases and the defendants were found guilty. The second time around, the system "got it right." It does not matter that in the process of "getting it right," courts and prosecutors destroyed one of the most important legal protections that anyone could have.

At the founding of this country, the law followed the natural rights views of the great English jurist William Blackstone, and the bedrock of criminal law was "mens rea, or Latin for "a guilty mind." Intent was a big portion of the law, and prosecutors were not to pursue criminal charges unless they also could prove that an individual intended to commit a crime, and did not just ignorantly run afoul of some arbitrary rules.

That situation no longer exists, as the Wall Street Journal recently pointed out in a stunning article:

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."

This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.

As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.

The paper then takes the case of Wade Martin in Alaska:

When the police came to Wade Martin's home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can't. That included the 10 sea otters he had recently sold for $50 apiece.

Mr. Martin, 50 years old, readily admitted making the sale. "Then, they told me the buyer wasn't a native," he recalls.

The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.

He pleaded guilty in 2008. The government didn't have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.

The article gives a number of other cases in which conduct by individuals that they never even thought might violate the law led either to prison time or criminal convictions and probation. Why does this happen? It happens because American prosecutors have become all-powerful. Lew Rockwell writes:

Those raised on a steady diet of courtroom television shows believe that they are true to the way justice is meted out. This is completely naive. Trials in federal criminal cases are rare. Nine in ten cases are settled in pleas like the above case. Only 3 percent of the cases go to trial. Among those that go to trial, the defendant wins once in every 212 times.

What this means is that there is no way out for the accused. The prosecutors have all the power. Not even the judge has discretion because lawmakers have mostly taken that liberality away in the name of cracking down on crime. This happened all through the 1980s and 1990s, and the prosecutorial dictatorship has entrenched itself to become the norm since 2001. For the last ten years, the police state has had free rein.

It was not "liberals" or "conservatives" who did this. It was both parties acting with massive support of the American public, as tyrants in the public sector licked their chops. This was a result of security-minded madness, and even now hardly anyone cares.

He continues:

Today, every single citizen, no matter how free he or she may feel in daily life, is in reality a sitting duck. You can be made to disappear. There is essentially no way you can escape once the feds sweep you into their net. There is no justice. The total states of the past used to pretend to have trial-based convictions. The total state of the present doesn’t even bother. It just puts a sack over your head and takes you away.

When Rockwell writes that we now are in a police state, he is not using hyperbole. The USA IS a police state. It has by far the highest number of people incarcerated (more than two million) of any country in the world and a fourth of the entire world's prison population.

People are expected not only to know all of the laws that are passed (the courts have ruled that "ignorance of the law is no excuse") and the ONLY people who are not punished for ignorance of the law are police, prosecutors, and judges. I am not kidding.

Thus, we often see prosecutions made for political -- yes, political -- reasons. Why did Michael Nifong pursue rape charges against the three Duke students he knew were innocent of any crimes? Because he wanted to win an election, and he knew that his actions, no matter how outrageous, were popular with a number of political constituencies, including the "Progressive" crowd at the New York Times, which supported him until his case utterly fell apart.

And Rockwell is correct that all of this is a prescription for tyranny, the very kind of tyranny that Kirchick claims does not exist in the USA, only in rogue countries like Iran. How did this come about? It is very simple: Progressives, including people like Herbert Croly, who founded The New Republic, believed that individuals should not have protections against State power because a society could "progress" only if the State could advance the agendas of the intelligentsia without interference from "obsolete" documents like the U.S. Constitution.

Thus, most of the rights that were guaranteed (not granted, as Progressives like to claim) by the Constitution now either have been breached or have disappeared altogether. We literally are at the mercy of police, prosecutors, and judges, who are free to frame whom they like and unless one can raise hundreds of thousands of dollars quickly, people who are targeted pretty much disappear.

None of this excuses what Iran did to the three hikers, nor does it explain or justify everything that Bauer told the media. For that matter, many of the same leftist groups with whom Bauer is associated have been front-and-center in the destruction of rights in this country.

Iran is governed by a rogue and cruel regime and I have no use for people who engage in torture, beatings, and imprisonment of people simply for their political or religious beliefs. However, we really should not kid ourselves that Americans are above acting like the Iranians. From the CIA renditions to Guantanamo to the daily abuses of the law and outright decency that prosecutors commit while they are "just doing their jobs," people in this country who legally operate without boundaries also are capable of cruelty and outright murder.

Lynn Blanchard outlines the police misconduct in the Brad Cooper case

The wrongful conviction of Brad Cooper for the murder of his wife -- and I have no doubt that it was wrongful -- is testament to the corruption of police and prosecutors in North Carolina. When someone trots out the "they disbarred Mike Nifong" line, keep in mind that Nifong not only acted unethically, but he also acted criminally, yet there was no investigation of this erstwhile felon.

It always has been my contention that when it comes to police, prosecutorial, and judicial misconduct, the authorities will toss out a bone in order to make it look as though they are "doing something" about the lies and corruption. That is what was done in the Duke Lacrosse Case, and now that the State Bar has Nifong's trophy on their wall, the members are free to look the other way when it comes to outright criminal behavior on behalf of prosecutors.

Lynn Blanchard had done a heroic job in pointing out the massive misconduct and outright lying that was part and parcel to the Cooper case. From the police to the judge (who is a former cop and prosecutor, so he knows all of the tricks and is anxious to remain in the club). Her latest post outlines the police misconduct in the case, and I would urge you to read it.

I list two sections below:

Fabricated evidence/shoes: The police and prosecutors put a great deal of focus on shoes in this case. In all three cases the facts were misrepresented. First, Detective Young claimed to have found two right shoes, implying that while hastily cleaning up the crime scene, Brad grabbed two left shoes by mistake and disposed of them. During the trial there was a LOT of discussion about the “missing” two left shoes and honestly, it does sound good if you believe someone is guilty. However, the truth is that the two right shoes were different sizes, different styles, were not even Nancy’s current size and they were not even found in the house! There were a ton of shoes scattered all throughout the Cooper’s home and Young “found” the mismatched shoes on a shelf in the garage. Clearly this was fabricated evidence and the prosecutors had no problem using it at the trial. They made sure they highlighted this in closing.

Then throughout the trial they referred to Brad’s missing shoes, the pair he was wearing in the Harris Teeter video. It was their theory that he disposed of the body right before that trip and that is the significance of the “missing” shoes. The site where the body was found was extremely muddy and if Brad had been there in those shoes, mud would have been in the car, on his shoes and on the floor in the HT video. It was not. Detective Young testified that he never asked Brad for the shoes, it’s not in any of his notes that he ever searched for the shoes and the shoes were not even included in the initial search warrant. They were included in a search warrant right after his arrest, over three months later. Yet, the prosecutors went on and on about Brad’s “missing” shoes. I can’t think of any reason why they neglected to find and examine those shoes in those first days of the investigation. They had the HT video on July 12th.

Finally, there’s Nancy’s missing Sauconys. Brad told Young on 7/13 that Nancy had 3 pairs of running shoes. One pair was never found and that is obviously the pair she wore that morning when she left to go running. Police found the receipt for those shoes at the Athlete’s Foot store. Brad told police that Nancy purchased her running shoes there. They tried to determine if Nancy possibly returned that pair of shoes. Young testified that the store was unable to determine whether or not the shoes had been returned. That was a lie that was revealed in further testimony when he read his signed statement about the store verifying that the shoes had never been returned at that store. Why would the police detective feel compelled to lie on the stand if the investigation was honest? Again, the prosecutors ran with this and stated to the jury that Nancy’s only running shoes were in the home.

“The bed did not appear to have been slept in” - Detective Daniels had this written in his notes on 7/12, referring to Nancy’s bed. But the bed did look slept in. Photos displayed during the trial confirmed this. When asked, officer Hayes testified that it looked as if someone sat in it. When the defense attorney asked Daniels about the bed, he testified that he first wrote the note that the bed didn’t look slept in, sat in the bed, did not document that he sat in it, then took a photo of the bed. It is simply unbelievable. The bedding would later be sent to SBI for bodily fluid and fiber analysis and Daniels didn’t bother to inform SBI that he had contaminated it by sitting on it. Please watch trial summary part 2 for testimony on this.

So, Brad Cooper is in prison while a murderer runs free. THAT is justice in North Carolina. I have come to believe that cops and prosecutors pretty much don't care if they get the "right" person, just as long as they get SOMEONE.

Brian House and the moral bankruptcy of judges

Brian House and I read the same Bible (I guess they read the Bible at Peavine Baptist Church, where House attends), but I don't think we find the same meaning in it. Where the Holy Scriptures admonish judges to act honestly, show integrity, and not to "pervert justice," House must interpret those passages to mean that judges are supposed to rig convictions and destroy the lives of innocent people.

As the child molestation trial of James Combs approaches, I still am thinking back to House's performance in the Tonya Craft trial. There is good reason that House had an ashen expression when he discovered the jury's verdict, as the jurors were openly declaring that House's best efforts to rig an illegal conviction were wrong, unjust, and his actions demonstrated that his judgeship is fraudulent.

Why do I write about House more than a year after the Craft trial? I do it because he still is on the bench, bilking Georgia taxpayers for six-figures, and tag teaming with dishonest prosecutors like Chris Arnt to screw over innocent people. Let us revisit some of the things he did in that case that demonstrate beyond any doubt at all that he tried to rig a conviction.

• He consistently refused to permit Tonya Craft's defense to admit exculpatory evidence even though the evidence was legitimate and documented. For example, after Sandra Lamb told the court that her daughter had not received acting lessons, House refused to let the defense enter the online IMDb resume of the child, despite the fact that it was a public link that anyone could look up on the web.

• He permitted the admission of a forged document that Tim Deal created during the trial, a document that was not in his or any other files before the trial began. The prosecution had created a huge hole with the "hand rape" allegations and Deal had to cover for them. Do I believe that House knew the document was forged? Absolutely. I have no doubt at all.

• He permitted Joal and Sarah Henke to give "I just remembered" testimony that was perjury on its face, and the testimony directly contradicted earlier sworn testimony that both had given a year before.

• According to media representatives who were keeping count, he sustained 90 percent of the prosecution's objections and only 10 percent of the objections from the defense. 

• He permitted prosecutors Arnt and Len Gregor to yell, make catcalls, throw books down on the table, scream at defense witnesses, verbally attack the defense team, and harass Craft all during the trial. Any attempt by the defense to protest this action was met with a personal attack from House himself who refused to discharge the ethical duties of his office.*

• He had a long conversation with Sandra Lamb a few days before she testified, yet he did not report this illegal ex parte conversation to the defense. During the trial, a number of people contacted me to say that they saw House meeting with prosecutors on several occasions after court had ended for the day. One observer told me about seeing House and the prosecutors leave the courtroom together and enter a room adjacent to the courtroom. I have no doubt that he, Arnt and Gregor had illegal strategy sessions together, none of which were reported to the defense as required by Georgia's rules of ethics for judges.

• All during the trial, he and the prosecutors (especially Arnt) had pre-worked signals in which House would look at Arnt, who then would signal to House what his next move should be. (More than one observer told this to me.)

• Jurors after the trial said that one thing that really bothered them was the obvious prejudice that House showed against the defense and in favor of the prosecution. 

• During a break in the trial, House spoke to a court employee and vilified both Craft and the defense in private conversation, not knowing that it was being recorded. While that recording has not been released, nonetheless, the incident demonstrated House's lack of integrity.

This is only the tip of the crimes against justice that House committed during the trial, and it was clear that Arnt, Gregor, and Sandra Lamb were running the show and pulling his puppet strings. I wish that House were the only offender, but as I hear from people around the country, and I watch the performance of judges like the one who helped the prosecution railroad Brad Cooper into prison, I have come to see the situation in this country as being pretty hopeless.

Yes, there are good judges out there, but the number of honest men and women wearing the black robes is dwindling. Furthermore, when the good ones retire, they are replaced by people like Brian House.

As the conflagration known as World War I began, British Foreign Secretary Sir Edward Grey declared, "The lamps are going out all over Europe. We shall not see them lit again in our time." I must admit to believing the same about this country and our system of "justice." Americans once prized justice, but like so many things that have been good about this country, that also is in our past, not our present and certainly not our future.

*Here are some things that the Georgia Judicial Code of Ethics includes. Compare this code with House's conduct and you will see that no one in authority in Georgia actually believes in these things, as those in power hold that living by the rules does not apply to them.

Canon 1
Judges Shall Uphold the Integrity and Independence of the Judiciary.
An independent and honorable judiciary is indispensable to justice in our society. Judges shall participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe such standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2
Judges Shall Avoid Impropriety and the Appearance of Impropriety in All Their Activities.

A. Judges shall respect and comply with the law* and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. Judges shall not allow their family, social, political or other relationships to influence their judicial conduct or judgment. Judges shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor should they convey or permit others to convey the impression that they are in a special position to influence them. Judges should not testify voluntarily as character witnesses. (House also has done that in a recent divorce/custody case)

Canon 3
Judges Shall Perform the Duties of Their Office Impartially and Diligently

On ex parte meetings, the Georgia code declares:

Judges shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law*. Judges shall not initiate or consider ex parte communications, or consider other communications made to them outside the presence of the parties concerning a pending or impending proceeding, except that:

(a) where circumstances require, ex parte communications for scheduling, where administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:

(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

None of those things held during the trial. Instead, House was engaged in strategy sessions and his personal conversation with Lamb before her testimony demonstrated beyond a doubt that not only was he Lamb's sock puppet, but that he has absolutely NO RESPECT for the law and for the codes that supposedly are to govern his conduct.

Yet, Brian House will continue as a judge, and I would not be surprised if the voters of the LMJC were to return this sorry person back to office for another four years in the 2012 elections. One hopes otherwise, but I cannot say I have much confidence in the political choices that Americans make.

More on the Brad Cooper railroad

There are a couple of websites, including a blog, dedicated to the railroading of Brad Cooper. Before I list them, however, I want to direct readers to comments left on the Cooper blog. They are an eye-opener, and confirm what I have known for years about the utter dishonesty and criminal behavior of North Carolina prosecutors:

I'm closely connected to the BC murder trial, from the prosecution side. I can honestly say the following:

1. The reason why the prosecution took so long with its case was to wear down the jury so that they would be too exhausted to really pay attention.

2. A portion of the prosecution does not think he did it but were directed to win this case at all cost in order to save face for the police department.

3. The google maps defense didn't stand a chance. The prosecution understood that, in today's climate, jurors, especially black jurors, are likely to believe in setups by the police department. This counter-evidence didn't have a chance of getting admitted.

4. In jury selection the defense had a lot of people they liked but the prosecution asked questions about if they could participate in a "extensively lengthy trial" and this forced those that the defense liked to step down. Had the defense not excused the ones they did the jury would have had 0 men and would have been a mixture of poor black women and very wealthy white women.

5. The defense's expert who was on the witness list and had spent thousands of dollars and countless hours trying to find the same evidence as the prosecution's expert couldn't find the google maps. He was under contract with Raleigh Police Department on some other cases and was told if he was to present said non-evidence as exculpatory then he would lose his livelihood.

If what this person has said is true, then a number of people associated with "law enforcement, the D.A.'s office, and the North Carolina judiciary should be looking down the barrels of the law. Instead, the real murderer is free and so are a host of other criminals in blue costumes and the prosecutor's uniform.

The blog is Justice for Brad Cooper, and the website is Justice for Brad. Because both of these are impressive sites, I am going to feature portions of them from time to time, as well as make commentary on my own.

Bradley Cooper and the case narrative

On July 12, 2008, Nancy Cooper, a middle-class wife and mother of two young children living in Cary, North Carolina, was declared missing. Two days later, her body was found in Wake County and the affluent community (where many people are employed in high-paying jobs at the Research Triangle or at the nearby University of North Carolina) was stunned.

The police investigation almost immediately centered on Nancy's husband, Brad. In their investigation, police found that the couple, which had moved to Cary from Canada, was on the verge of divorcing. This was not going to be an amicable divorce, from what people who knew the couple were saying, and in these kinds of cases, the estranged spouse almost always is going to be the prime suspect.

Almost immediately, police locked in on Brad Cooper, and at that point, to be honest, they decided that he would be the one they would investigate. Pat Bazemore, Cary's chief of police, declared that it was "not a random crime," which meant that whoever killed Nancy Cooper meant to kill her. What is important to remember is that from that point on, the police would interpret ALL information as pointing to Brad's guilt, rather than trying to use the information they found as a roadmap to finding a suspect. (He was arrested in October of that year and charged with Nancy's murder.)

This hardly is unusual with police these days, and this is one of the biggest criticisms that defense attorneys and people like Radley Balko (one of the most accurate and important journalistic commentators on the law today) have of police investigations. All too often, police decide beforehand who is guilty and then tailor their investigation toward proving what they already believe to be true.

To put it mildly, this is a recipe for disaster, and it is the single worst cause of innocent people being framed. What starts out as a flawed investigation ultimately turns into police putting together a house of dishonest cards, and that is what happened in the Brad Cooper case.

Police and prosecutors claimed that Bradley strangled his wife to death the night of July 11, put her body into the trunk of the car, drove her to the place where he had found in a Google search, and dumped her there. Brad, on the other hand, claimed that she had gone out jogging that morning and had called him on her cellphone at about 6:40 a.m.

Obviously, if she was out jogging and calling her husband instead of lying dead in a drainage ditch, the police/prosecution narrative made no sense and there was a killer on the loose. Making matters worse for the law enforcement narrative, a number of people told police that they had seen her jogging that morning. Obviously, there would be a huge collision course between competing streams of "evidence."

As readers know, houses of cards fall apart, and this one did, too. However, when prosecutors AND judges decide that they are going to do their best to prop up a bad case, then it really does not matter whether or not the charges have a foundation. If a jury goes along with what the judge and prosecutors want, then the defendant is doomed, and innocence means nothing.

There are a number of things that did not make sense in this prosecution, led by Assistant District Attorney Howard J. Cummings and ADAs Boz Zellinger and Amy Fitzhugh, and as I will point out in future posts, it is clear that the police, prosecutors, and the judge decided to find a way to deal with the red flags of the investigation. They include:

• Police destruction of the cell-phone data in Nancy Cooper's cellphone. Police claim it was accidental, but the defense was able to raise some important questions about it. By destroying the material and not notifying the defense for nine months about it, one gets the sense that something more than just carelessness is at work.

• The Google search of the area where Nancy Cooper's body was discovered was found on Brad Cooper's computer, and jurors said afterward that this was the key piece of evidence that led them to convict Cooper. The defense had an expert who was going to testify that this particular bit of "evidence" had been planted, but Judge Paul Gessner, an ex-cop and prosecutor whose rulings and demeanor clearly favored the prosecution (a reminder of "judge" brian out-house in the Tonya Craft trial), declared that the expert could not testify because, in Gessner's words, he was "not qualified." Thus, the jurors were not permitted to hear contrary evidence, and future posts not only will go into the expert's findings, but also will take a hard look to see whether he was unqualified or not;

• The witnesses who claimed to have seen Nancy Cooper that morning jogging. Since more than a dozen people made that claim, one would think that the police and prosecution would have been interested in their story. Think again. Police and prosecutors clearly did not want to have their narrative distracted and ignored these witnesses.

There is more to the trial and investigation (or the lack of an investigation), and I will cover it over time. I end this post with a timeline prepared for me by one of Brad's supporters:

• On Friday evening, July 11th, 2008, Brad, Nancy and their two daughters attended a neighborhood barbecue. Brad took the children home at approximately 8PM while Nancy stayed at the party until approximately midnight.

• At approximately 4AM, Brad woke up to his younger daughter (just under age 2) crying for a bottle of milk. He was trying to calm her down and shortly after, Nancy woke up too. They were trying to wean her off the bottles of milk so they were trying to find other ways to calm her down, plus they were out of milk.

• The two of them started some laundry and it was typical for this family to be awake early in the morning since Nancy often went running early in the morning. Finally, shortly after 6AM, Brad decided to go to the Harris Teeter to buy some milk.

• He returned home with the milk and Nancy gave their daughter the bottle and they realized they were out of laundry detergent so Brad went back to the store to buy some. The store was approximately 2 miles from the home. While en route to the store, Nancy called Brad and asked him to also pick up some green juice for their older daughter. This phone call was received at 6:40 AM, just before Brad is seen entering the Harris Teeter Supermarket.

• Brad returned home and took his daughter upstairs to the home office so she could finish her bottle while he got some work done. He heard Nancy leave to go jogging at approximately 7AM.

• Brad received phone calls from two of Nancy’s friends that morning and he told them that he thought she may have gone jogging with a friend, Carey Clarke but that she hadn’t returned yet.

• Brad had made plans to play tennis the prior evening with a friend for 9:30AM. When Nancy hadn’t returned home by then he called his friend, Mike Hiller to cancel.

• As it got later, Brad became worried and called Nancy’s friend, Jessica Adam to see if she had Carey Clarke’s phone number. She didn’t. Brad told Jessica he was going to put the girls in the car and drive around to look for Nancy.

• At 2:15PM, Jessica Adam called police. Attached is the audio of the phone call: http://www.wral.com/news/local/audio/3250012/

• In the phone call, Jessica implicated that Brad may have had something to do with Nancy’s disappearance.

• Over the next 2 days, police questioned Brad repeatedly and he fully cooperated with them. They also had police follow him and claimed it was to protect him, yet they didn’t put a police trail on the children.

• Nancy’s body was found in the evening of July 14th in a drainage pond in a new construction area 3 miles from the Cooper home. The autopsy report would later indicate that she was strangled.

• Police took possession of the Cooper home on July 15th as part of the investigation.

• On July 16th, Nancy’s parents filed for temporary custody of the children and the judge granted them custody.

• In early October, Brad agreed to undergo a custody deposition in order to regain custody of his children. It was 7 hours long and was more of an interrogation than a deposition. Very specific questions about the events leading up to and following Nancy’s disappearance were asked. It was evident the police supplied questions to the custody attorney.