Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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Bearding the Warden

As Yet Unapproved Prison Grooming

As Yet Unapproved Prison Grooming

 

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

What are you hiding in your beard?

A unanimous United States Supreme Court decided yesterday that the answer to that question, most likely, is: nothing.

A devout Muslim who happens currently to be living in an Arkansas state prison now is able to grow his beard to the full half-inch length he asked the warden to allow him to satisfy religious stricture. That’s twice the hirsute limit previously permitted some inmates but still, the Justices said, unlikely to hide any hacksaw or shovel the prisoner might use to effect an escape. The Justices seemed unconcerned about errant rice grains that might remain after a hearty prison meal.

Inmate Abdul Maalik Muhammad, whose momma calls him Greg, is serving a life sentence for burglary and domestic battery, which Arkansas obviously takes seriously. The Supreme Court took much less seriously the warden’s claim that half an inch of beard might conceal all sorts of goodies, like razor blades, drugs, and such prison arts and crafts projects as homemade darts. The warden also claimed that it would be much harder to monitor the length of a half-inch beard than the quarter-inch beard he allows for prisoners with skin problems. Evidently Arkansas guards are equipped with only the tiniest of rulers.

Arkansas is much stingier with its beards than either the federal government or forty-four others of the United States, where a half-inch growth is considered a trifle, barely manly.

Justice Alito, who wrote the majority opinion, said “An item of contraband would have to be very small indeed to be concealed by a 1⁄2-inch beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a 1⁄2-inch beard rather than in the longer hair on his head.”

From the Islamic perspective — and this is taken from a website page at Al-Islam.org titled “The Islamic Perspective of the Beard” — the beard is considered by Allah a thing of adornment and beauty.

Allah obviously has never seen me in a beard.

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Letter from Beijing — Part Two

[Editor’s Note: Chapter One of this book, Back From The Dead: A Landmark Ruling of Wrongful Conviction in China, can be found here. Generously shared in these pages by the author, it is the true story of China’s parallel to the O.J. Simpson murder case, which occurred around the same time. Here is Chapter Two.]

 

The Dangers of a Happy Marriage

Zhang Aiqing had been a bright and studious country girl. In high school she loved to read novels, particularly foreign detective stories. She always said that love stories were too slow, and that you could work out the endings at a glance. She also liked to watch the news and chat to her neighbours about national affairs. She had a calm and reflective nature: when the farm work was done she liked to sit with her next-door neighbour under a big tree outside her house, where she would repair shoes and embroider. Sometimes she would break off from this and just gaze at the white clouds above the mountain forests.

She didn’t go to university. At the time, in the early 1980s, it was unusual enough for a village girl to finish high school; instead she started work at the Yanmenkou machinery factory. She had three elder brothers, and she loved to ride to the market with her sisters-in-law. Even if she didn’t buy anything there, she was still happy. There was nothing particularly special about her appearance but she had a graceful, delicate air. Compared to most of the other farm girls, she loved fashion: she was the first one in the village to wear flared trousers and high-heeled shoes. Once, she brought back a pair of high heels, made of plastic, from the county capital. Her mother forbade her from wearing them and hid them away. But Aiqing managed to find them, put them on immediately and walked down the village street with her head high and her chest out.

Aiqing gradually got to know a boy from Hechang Village named She Xianglin. He was a year younger than her, and ambitious – strong, smart and skilled in wushu. They fell in love, and even though Xianglin’s family were poor, Aiqing decided to accept his marriage proposal. She thought that, being two intelligent people, they could live well and make ends meet. And, sure enough, they weren’t rich but they were happy.

Xianglin wasn’t satisfied with farm work and was always thinking of ways to escape the village. He left the family behind to find work as a casual labourer in the south, and then turned his hand to trading in the north. But after their daughter was born he went to neighbouring Madian Village to work as a security officer for the local neighbourhood association. It seemed to be a more stable way of getting by.

Aiqing worked hard to be a good wife and mother. With Xianglin working and living in Madian, Aiqing took her daughter to live in the factory dormitory in Yanmenkou. She worked nights and took care of her daughter during the day, sleeping no more than four hours each day and hardly ever complained to Xianglin. She was good with her hands, and made a vest for her daughter out of old clothes, with embroidered flowers and glass pearls. Everywhere she went, its craftsmanship was appreciated.

Xianglin was something of a male chauvinist. He didn’t speak much, but he liked socialising and drinking with friends. Sometimes, when he felt the situation was more formal, he would bring Aiqing along. She was a good conversationalist, at ease in company. Once, she accompanied Xianglin when he took his bosses to dinner. To the admiration of everyone present, she drank thirteen cups of wine. She said she just didn’t want her husband to lose face.

She was always good to him. One summer, Xianglin had such a high fever he couldn’t stand up. They had no money for medicine so Aiqing massaged him for four or five days until he recovered.

As far as anyone could see, they had a happy marriage.

Eventually, though, the relationship ran into trouble. The problems were mostly about money. As a patrolman working both the day and night shifts, Xianglin earned over 100 yuan a month [Note 4], but would spend it all within the month. When Aiqing questioned him, he would say that he spent it on inviting people to dinner and to deal with problems. And not only did Xianglin spend his entire salary, he also began to spend the thousands of yuan he and Aiqing had saved over many years. Aiqing questioned him about this, they argued and Xianglin hit her. Although he appeared quiet, honest and straightforward he actually held back a fiery temper. Aiqing, on the other hand, was a tolerant person, and when they argued it was always she who would concede, not wanting to hurt the marriage.

As time went on, the differences between them became more pronounced. Aiqing was realistic about life, whether it was about
love or work. She just wanted to do things properly, and well, from start to finish. But Xianglin was never content. It was as if every morning he awoke with a new fantasy about a different life. To have this kind of husband began to fill Aiqing with disquiet, even fear.

In 1991, Xianglin began an affair with a woman in Madian Village whom he had once helped when he was on patrol. She was single and, given that Xianglin was away from home, they would sometimes spend the night together. When Aiqing found out, she was devastated. She had worked so hard to preserve her marriage with Xianglin. Once the initial shock was over, she didn’t confront him. Instead she sought out this woman and spent some time with her, chatting and playing cards so they could have a heart-to-heart conversation. When Xianglin heard about this, he was moved, and for the first time since they were first married, he talked openly with Aiqing, explaining to her how guilty he felt.

Aiqing always wanted to seem strong and save face. She hated to complain and didn’t like to vent her feelings. It meant that her anger and frustration were always locked inside. In 1993, the factory met with some financial trouble, and it looked as if Aiqing would be laid off. With all the personal and financial pressure weighing down on her, Aiqing lost her spirit. Sometimes she would feel anxious for no reason; she became forgetful, and often fought with Xianglin. Once, she said to her mother that she felt as if she were going to die. Her health deteriorated to the point where she became completely dependent on Xianglin.

In 1994, not long after New Year’s Day, Aiqing disappeared. Her family suspected that Xianglin had murdered her, even though he claimed she had left in a rage after a quarrel. Mrs Zhang went to Aiqing’s house, and though she didn’t find any evidence, she noticed that all of Aiqing’s warm jackets were still there. It was midwinter, so surely she would have taken a jacket with her when she left? Xianglin stated again that she had simply walked out, and said he expected her back after a few days. But Aiqing did not return, nor had she sent any letters. Unwilling to wait any longer than she had already, Mrs Zhang gathered her family together and went to the public security bureau to report her daughter missing. She had a strong sense that Aiqing had been murdered by Xianglin.

NOTE

4 The average per capita national income in 1990 was US$350, equivalent to 139 yuan per month, though this figure does not reflect the income disparity between urban coastal regions and rural areas.

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Je ne suis pas Charlie

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I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

I love the Pope.

I love the possibilities of what a Pope might mean for the world.

John XXIII, John Kennedy’s Pope, the Pope of the Second Vatican Council, the Pope of “We were all made in God’s image, and thus, we are all Godly alike.” Pope John died the same year Kennedy died, the same year Camelot died.

John Paul II, the Singing Pope, the Pope of reconciliation with Judaism, Islam, the Eastern Orthodox Church, and the Anglican Communion. But like the man I interviewed said, when the Pope came to Boston in 1979, and The Singing Pope’s CDs were jumping off the shelves, “Look, I love the Pope. But I gotta tell you: he ain’t no Frankie Sinatra.”

And now Francis, the one and only, the Pope of nightclub bouncers, Jesuits, and Jesuit nightclub bouncers, first Pope from south of the border, first Pope who isn’t also a European in nearly thirteen hundred years.

Not the first Pope to take a serious misstep on behalf of religion.

Pope Francis says that while it was an aberration to kill a dozen folks at the offices of the satirical French magazine Charlie Hebdo, those folks really oughtn’t to have insulted the faith of their murderers. Even if the first person killed was a maintenance man who couldn’t have drawn an image of Muhammad to save his life, which of course didn’t save his life anyway.

But to certain of the faithful, how do you not insult their faith, if you are of a different faith? My mother was a Texas baptist for forty-one years before a deathbed Catholic conversion. The good people of her former church told my brother, who was eleven at the time, he’d better hurry on up and get baptized, because his mother was burning in hell for what she did.

I always liked what the Dalai Lama says about the certainty of faith, which is that there is no certainty. He’s been studying and practicing his religion all his life (or most of his countless lives, from his point of view), yet when asked about the certainty of his knowledge will reply, “I don’t know.”

It’s a lot harder to kill an unbeliever when you don’t know for sure yourself.

It’s easy to criticize the Pope for essentially implying that the people who worked at Charlie Hebdo had it coming. Of course it’s madness to justify the murder of someone who makes fun of your religion. It’s the madness of knowing. Knowing that you possess the one true faith.

If you know, know that the unbeliever, like my Texas mama and (maybe) everyone at Charlie Hebdo, is going to burn in hell for eternity, it makes virtually no difference if you kill every one of them. The average lifespan on this earth is sixty-eight years. What are sixty-eight years, or one hundred sixty-eight years, to eternity? I would imagine just a few days of burning in hell will make you forget everything that came before.

There is a cure to this madness. The cure is caring more for every creature struggling to know, than caring for the knowledge itself. It’s the struggle that’s worthy of our love, not the end of struggle. Nobody loves a know-it-all.

France has declared war on radical Islam, as though the seventeen deaths there suddenly awakened a nation fairly immune to the two thousand nine hundred ninety-six deaths thirteen years before, when the United States declared its own war. I would rather both nations had declared peace, and by that I don’t mean love or forgive the terrorists. Of course they should be brought to justice. But which justice?

These declarations of war, against people who reside within every nation on earth, obscures the view that this is not a military issue, but rather a criminal justice issue, important to people of all faiths and none.

People of faith, and people of no faith, can hate each other, be slaves to everlasting war. Or we can declare instead, I don’t know, and be free.

Je suis Charlie, je suis Juif, je suis catholique, je suis Baptiste, je suis bouddhiste, je suis musulman.

Je suis tout le monde.

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Gift of the Magi

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Sometimes Santa Claus comes to town in a three-piece suit.

Last month an Oklahoma lawyer wrote about the Artesia immigration detention center in New Mexico, which closed just after Christmas.

An immigration law firm in my neck of the woods, Kolko & Associates, traversed afar to Artesia a couple weeks before the holiday. These lawyers bore the gifts of the magi with them, representing for free fourteen families trying to bond out of imprisonment to spend the holiday outside the barbed wire.

The four wise men and women were David Kolko, Jennifer Casey, Bryon M. Large, and Jessica Bunnell. They wrapped their gifts in the tools of their trade — words — and delivered them fifteen days before the date many people celebrate as the birth of another immigrant.

All fourteen families were reunited, for at least this Christmas, this new year, this celebration.

Judge Ebenezer apparently had the day off.

 

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Letter from Toronto

Lady Justice Stood on Her Head

 

[Editor’s Note: Frank Addario, a prominent Canadian criminal defense lawyer, has graced these pages before. This article was first printed in this winter’s edition of The Advocates’ Journal, a publication of the Advocates’ Society, in Toronto.]

 

UNREASONABLE DOUBT

Does the reasonable doubt standard work in difficult cases?

A recent American case got me thinking. A teenaged girl, Elizabeth Coast, accused her neighbour, a fellow named Montgomery, of sexually molesting her several years earlier. There was no corroborating physical evidence and no other witnesses. Montgomery denied touching her under oath. After a one-day trial, he was convicted. The trial judge said:

I have tried many of these cases and most of them generally involve family whereas the alleged victim has a motive sometimes to falsify their testimony. This is where you have a stepbrother or a stepfather, at some point they are afraid to tell their mother or close relatives ex cetera [sic}. But I have to look at this case today. What did the alleged victim at this point, in this case Elizabeth Coast, have to gain by coming in here six years later and saying to the court that this man did the acts that he’s been charged with? I see no motive whatsoever.

She at the time was 10 years old and too many times I’ve heard over and over, even in some cases of admission, where the child — I was afraid. I didn’t want to tell. I was scared. I was embarrassed. I was afraid of what would happen to me if I reported this.

Mr. Montgomery, at this point in his life, may be the nicest person you ever want to meet. But sometimes at younger ages, and even old, we do stupid things that wasn’t intended at the time and that’s what I think happened in this case.

I think the defendant is guilty and I find him guilty as charged.

Montgomery was sentenced to 45 years’ imprisonment, the majority of which was suspended.

A little over three years later, Coast came forward to say she made up the story. After consulting counsel and getting a Miranda warning, Coast confessed to fabrication. She was arrested for perjury and later convicted. In setting aside Montgomery’s convictions, the Virginia Court of Appeal described why Coast had made the false allegation:

Coast explained that immediately before she accused Montgomery, her mother caught her looking at ”sex stories” on the Internet. Out of fear of her mother, Coast said that she was looking at inappropriate material because she had been molested when she was ten years old. After she reluctantly named Montgomery as her attacker, the lie snowballed. Coast felt like she could not admit that the assault never happened.

At Montgomery’s trial, Coast testified she did not initially tell anyone about the assault because she thought her parents “would get mad” and she was “really ernbarrassed.” She said she came forward seven years later because she thought she saw Montgomery at a Wal-Mart. The trial judge thought Coast was more credible than Montgomery because she had “no motive whatsoever” to lie, but her recantation proved this reasoning incorrect.

Cases like Montgomery’s are ubiquitous. The trial judge could no doubt speak for many of his colleagues in describing single-witness sexual assault cases involving minors as a staple of the criminal court docket. The situation is similar in Canada.

After a recent high-profile trial in Toronto leading to the sexual-assault acquittal of two doctors on failure-of-proof grounds, the prosecutor was quoted as saying that as more women come forward with this kind of complaint, ”the overwhelming tide of awareness will change the way that judges see this kind of offence.” Translation: the ubiquity of a social problem can fill the
gap where the evidence falls short of proving guilt. Montgomery’s trial judge would have endorsed the sentiment.

In Canada, the guiding rule is that judges are not meant to figure out what happened. They are directed to ask only “What has been proved.” The law requires them to set aside the popular belief that the justice system can solve the pervasive problem of sexual assault.

An overriding concern of our system is to avoid convicting the innocent. The important rule of proof beyond a reasonable doubt cannot be watered down without giving this concern a seat on the sidelines. Canadian law, explained famously in a Supreme Court of Canada case called W(D), does not tell judges how to approach evidence. However, it insists on the crucial importance of ensuring that no reasonable doubt exists before making a finding of guilt. In Montgomery, the complainant’s absence of apparent motive to lie should have been a neutral fact, not a makeweight for the prosecution. The defendant’s “niceness” should have been a small but ornamental fact in his favour. The trial judge added both of these irrelevancies to the prosecution side of the scale.

Many people (both with and without legal training) struggle with the idea that a complainant would come forward with false allegations. Why would she make it up? Why, indeed? A criminal prosecution is grueling, time consuming and, for witnesses, often embarrassing. It is reasonable to assume that rational actors would not voluntarily submit to this ordeal. Yet this way of thinking sets the defendant up for failure. The assumption that no rational person would make a false allegation subtly shifts the onus to the defendant to prove that the complainant had a motive to do so. This is often impossible. The motives for making a false complaint are limitless, and the chances of discovering the motive and introducing it into evidence low.

In Montgomery, for example, the defendant would have had to figure out that Coast had been caught looking at sex stories and needed a quick (albeit false) explanation to deflect attention away from herself. Montgomery was convicted because he did not have these detective and mind-reading skills.

Unquestionably a relaxed burden of proof would capture more guilty individuals. Those “probably” or “likely guilty” accused who eke out an acquittal under current Canadian law would be convicted and punished. But at what cost?

One law professor has referred to Justice Cory’s reasons in W(D) as “the rapist’s Charter.” This evidently reflects a belief that the justice system should sacrifice old principles to protect potential victims. Supporters of this approach tend to forget the enormous social and personal cost of a wrongful conviction. While Montgomery’s trial judge might be seen as a cut-through-the-usual-protestations-of-innocence thinker, Montgomery would not have been convicted if his judge had given effect to the basic lesson of W(D).

Of course we want to eliminate the sexual abuse of children. Of course we do not want judges (or anyone else in the legal system) to be an impediment. Myths and stereotypical thinking, long the currency of sexual assault trials, have to be vanquished. But is weakening the reasonable doubt protection a viable solution?

Proponents of preserving the rule in W(D), of whom I am one, freely acknowledge that sexual violence is a widespread social problem. However, as with most social problems, it cannot be laundered and solved by running it through the criminal justice system. Sacrificing the Montgomerys of the world to show we are serious about eliminating child abuse (or sexual assault) creates another class of victims without attacking the core problem.

The truth is often murky and, in a trial, a partisan concept. The closest we get to the “truth” is the trial judge’s fallible opinion about what happened. The trial judge’s job is not to seek out truth but to evaluate the proof of the version advanced by the state, a vital distinction Montgomery’s judge overlooked. Employing common-sense assumptions to fill the gap in order to resolve the
“truth” issue is a poor proxy for traditional proof of criminal guilt.

 

[Author’s postscript, courtesy of his law student, Sarah Rankin’s, research: For her perjury — which wrecked Montgomery’s life — the judge sentenced Elizabeth Coast to two months, served on weekends. Not that a longer sentence would have fixed it. I would have rather the judge go to jail.]

 

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