Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

Read full story · Comments { 0 }

Letter from Beijing — Part Six

 

[Editor’s Note: Chapters One through Five of this book, Back From the Dead: A Landmark Ruling of Wrongful Conviction in China, can be found by clicking Chapter One, Chapter Two, Chapter Three, Chapter Four and Chapter Five. Generously shared in these pages by the author, He Jiahong, 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 Six.]

 

Back from the Dead

On 28 March 2005, Zhang Aiqing reappeared in Hechang. When she
walked through the front door of her mother’s house, her family was
left speechless. Looking around, she said blithely: ‘It’s Aiqing! I’m
back!’ Her mother threw herself into Aiqing’s arms and together,
they broke down in a tearful reunion. The rest of the family soon
joined in.

Once they had settled down, Aiqing’s eldest brother said: ‘We were
sure you’d died long ago.’

Aiqing replied: ‘I was close to it, but I’m strong, and I managed to get
back on my feet. Did you not get my letters? I’ve been writing to you
for two years!’

Her brother said they had received the letters, but no one
believed them to be written by her. The letters had been signed with
her name but the handwriting did not look like hers and they
seemed out of character. Aiqing had never explained where she was
or what she was doing and only urged the family to take care of her
daughter. They had simply come to regard the letters as unpleasant
pranks. When Mrs Zhang asked her how she had spent all the
missing years, Aiqing turned her head and glanced over her shoulder
at the stranger who appeared in the doorway.

Aiqing’s second brother said: ‘We were all scared when your letters
came. We were afraid that someone was going to come for revenge.
You know, like someone just out of prison, an acquaintance of She
Xianglin’s who was sending us intimidating letters about your
daughter. . .’

Aiqing suddenly asked: ‘How is my daughter? And why is She
Xianglin in prison?’

At this, the family looked at each other in silence, then Aiqing’s
eldest brother said: ‘It seems that She Xianglin has been treated
unjustly.’ When she heard the story behind his imprisonment,
Aiqing’s jaw became set and tears started to roll down her face. Her
brother said: ‘We need to go and report this right away.’

After the matter was reported to the local police station, it was
immediately sent to the county police, where the news was treated
very seriously. Their first priority was to conclusively identify the
woman claiming to be Zhang Aiqing using scientific means. The next
day, the DNA results confirmed her identity as the ‘deceased’ Zhang
Aiqing. The news travelled from the county police to the county
Politics and Law Committee, and from there to the Jingmen City
Politics and Law Committee. That night, the committee held a
meeting, at which it was unanimously agreed that the matter had to
be dealt with immediately.

In the meantime, news of Aiqing’s reappearance had spread quickly
through her village. On 30 March, at an emergency sitting, the
Jingmen City Intermediate People’s Court repealed the ruling of
first-instance and the reconsideration ruling that had found She
Xianglin guilty of the murder of Zhang Aiqing. The court requested
that the Jingshan County Basic People’s Court re-investigate the
case, and at the same time to release She Xianglin on bail.

Two days later, on 1 April, with his complexion pale and his hair thin,
She Xianglin walked out of Hubei Shayang Prison. Many journalists
were waiting by the prison gate, ready to capture this rare moment
in Chinese legal history. When the reporters questioned him, She
Xianglin described a confusing mix of feelings. He was both angry
and grateful for Zhang Aiqing’s ‘resurrection’ but his immediate
concern was for his daughter who was hurrying home in the wake of
her father’s release on bail.

The story of a miscarriage of justice where a supposedly murdered
woman had come back from the dead attracted the attention of
journalists across the country, who began to closely examine the
original investigation and those involved. Lu Cheng, the deputy
leader of the investigation team that had been assigned the case, had
since been promoted to the position of deputy police chief in
Jingshan County. In interviews with the media, he said that he felt a
deep sense of remorse. He regretted that no one had conducted a
DNA test at the time, which would have made the case much clearer.
Although Jingshan County had no such equipment at the time, the
126 Police Research Institute (now known as the Police Forensic
Science Centre) did. The misidentification of the body was the
principle reason the case had turned into such a miscarriage of
justice. At the time, Zhang Aiqing’s family and relatives all seemed to
believe that the dead body was hers. Lu Cheng believed that it
demonstrated the need to avoid placing too much emphasis on the
testimony of witnesses. But even when questioned by reporters, he
denied that the investigators in this case had ever used torture to
extract She Xianglin’s confession.

Reporters flocked to interview Zhang Aiqing to find out the reasons
behind her disappearance. The attention took its toll and her mental
state became unstable once again. The local media put her family in
contact with a psychiatric hospital which offered her free treatment.
In the hospital when she spoke to reporters, she said she’d only
come back to see how her family was doing, and that she had only
expected to stay a couple of days. She had no idea that things would
become so complicated. She especially wanted to see She Xianglin
and speak to him face-to-face, but whether Xianglin was willing to
meet was another matter. When she heard that he was out on bail
and that he was very weak and refused to eat, she asked a reporter
to send him a bunch of fresh flowers. She wanted to call him, but
didn’t want to affect his mental state. After a while, and with some
encouragement, she finally gave She Xianglin a call. She told him
that even though this ordeal had brought him close to death, he had
to keep up his spirits and strengthen his resolve. ‘Don’t you
remember the time when you had a fever of 40 degrees but you still
went to work? That was the first time you nearly died, so I know you
can make it. You can overcome anything.’ Xianglin only listened, and
didn’t respond. Finally, with tears in her eyes, Aiqing said softly into
the phone, ‘I’m fine.’

On 13 April 2005, the Jingshan County Basic People’s Court heard
the case. In front of She Xianglin and a mass of journalists, the
presiding judge solemnly pronounced She Xianglin innocent.

When he left the court with his family and throngs of reporters in
tow, She Xianglin went first to the cemetery to offer his respects to
his mother. He kept saying that if it hadn’t been for his wrongful
conviction, his mother would not have had to shoulder such a heavy
burden and would not have died so early as a result.

When he first saw his eighteen-year-old daughter, he felt there were
hundreds of things he wanted to say, but didn’t know where to
begin. When Xianglin had last seen her, she had been six. Growing
up she had no mother or father, and Mrs She, whom she had loved
dearly, had died shortly after being released by the police. She had
no friends in the tiny mountain village where she had lived and, after
struggling through the first year of junior high school, she dropped
out. Soon after, she had gone with her uncle, Xianglin’s younger
brother, and his family to work — while still a child — in an electronics
factory in Dongguan. Now that father and daughter were together,
they silently embraced each other.

After She Xianglin’s case was overturned, local officials rushed to
consult with him and his family to arrange compensation and
government aid. The Chinese National Compensation Law had taken
effect on 1 January 1995, and covered the compensation for
erroneously judged criminal cases including compensatory damages,
medical expenses, dependants’ living expenses and remuneration
for lost wages. From 11 April 1994, when he was detained under the
practice of ‘sheltered for investigation’, to 1 April 2005, when he was
released on bail, She Xianglin had been imprisoned for 3995 days.
The National Compensation Law states that ‘the compensation for a
citizen who has had his or her personal freedom infringed upon
should be calculated on the basis of the national average daily pay
for the previous year.’ Consequently, having lost his personal
freedom for eleven years, She Xianglin was entitled to 220,000 yuan
(US $26,400). At the time, however, the National Compensation Law
did not provide for damages for mental suffering. [Note 23]

In September 2005, She Xianglin signed a compensation agreement
with the Jingmen City Intermediate People’s Court. The court
agreed to pay 256900 yuan (US $30,828) in damages to She Xianglin
for the violation of his personal rights (this included a fee of 1100
yuan for the burial of the unknown victim). In October, the She
family reached a similar agreement with the Jingshan police. The
police agreed to pay 226,000 yuan (US $27,120) in compensation to
Xianglin, 4000 yuan (US $480) to his brother for his imprisonment
and 220,000 yuan (US $26,400) to his family for the death of Mrs
She. The local Jingshan government also paid She Xianglin a 200,000
yuan (US $24,000) subsidy to help with his living costs. [Note 24]

The two villagers from Yaoling Village who had been imprisoned on
the basis of the ‘certificate of sincerity’ also reached a compensation
agreement with the Jingshan police: one received 22,000 yuan
(US $2640) and the other 3000 yuan (US $360).

Although the government had undertaken the responsibility to
provide compensation to the people affected by the erroneous
decision, there were people directly involved in the case that needed
to be held accountable for their lapses in judgement. In April 2005,
the Jingmen City Politics and Law Committee established a work
team to investigate the people responsible. Han Hua, who had been
the deputy chief of the Jingshan police and the head of the special
investigation team, had been transferred to the position of deputy
president of the Jingshan County Basic People’s Court. Lu Cheng,
who had led the Jingshan police’s criminal squad and who had been
the deputy chief of the investigation team, had been promoted to
Han Hua’s old position. He Liang, one of the other key members of
the investigation team, had been promoted to the head of the
criminal squad before he had died of liver cancer in 2001. Pan Jun,
the other key member of the investigation team, was now an
instructor in the county police patrol unit.

During the period that he was under investigation by the work team,
Pan Jun complained many times of his mistreatment. On 25 May
2005, he went to a public cemetery in Wuhan after cutting his wrists
with a metal can and wrote the words ‘I have been wronged’ on a
gravestone in his own blood and hanged himself from a nearby tree.
Although this incident was not reported in the media, it greatly
alarmed the people involved in the inquiry. The work team soon
came to a decision, that the actions of those involved in She
Xianglin’s case constituted extortion and dereliction of duty. While
two of the principal people involved had already died, Han Hua and
Lu Cheng would be dismissed from their current positions. And so,
the investigation into the mishandling of She Xianglin’s case was
closed.

NOTES

23 On 29 April 2010, the Standing Co1n1nittee of the National People’s Congress
approved an amendment of the National Compensation Law. The amended law
increased the compensation for mental suffering and took effect fro1n 1 December
2010. Article 35 of this law provides: ‘Under the circumstances laid out in Article 3
and Article 17, in the case of mental injury, the state shall, to the extent of the
infringement, eliminate the effects of the infringement for the injured party, resume
his or her reputation, make an apology and pay appropriate compensation money if
the infringement causes serious consequences.’

24 Quoted US dollar equivalents are based on an average historical exchange rate of
0.12 for 2005.

Read full story · Comments { 0 }

Close Calls

Till Scalia Do Us Part

Till Scalia Do Us Part

 

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

The Supreme Court giveth, the Supreme Court taketh away.

A few days ago the United States Supreme Court decided that if you’re so revolting a human as to be homosexual, you probably still ought to be able to marry whomever you want, even if it’s another faggot or dyke. It was a 5-4 decision.

(Moments earlier the court ruled, by a much clearer 6-3, that queer folk have the right to breathe the same air as the rest of us, as long as they don’t exhale in our general direction.)

This morning, in another 5-4 squeaker, the Court decided it’s okay to execute people by excruciating means because the convicts waiting on deck for their turn at lethal injection failed to show the Court a less excruciating means to kill them.

Oh, the humanity.

Justice Antonin Scalia, who considers himself the smartest of the nine justices, and maybe actually is, blasted the Court for finding a fundamental right — to marry the grownup person of your choice who chooses you back — within its interpretation of the Constitution. Scalia said you might as well find a fundamental right to marry the several persons of your choice; he may be on to something.

Scalia further found the decision a “threat to American democracy.” It’s up to the people to decide who counts as a full human being, and none of the Court’s business. You know, like it’s up to the people to decide who should be slaves (the Constitution pretty specifically defined a black guy as only three-fifths of a white guy), who should get to vote, who should get the best education, who should control a woman’s body (and a man’s, for that matter). Just one more example of the judiciary interfering with the legislatures’ rights to fascist behavior.

Scalia was careful, right from the get-go of his opinion, to emphasize that it was no skin off his nose if a man marries a man, or a woman a woman.

“The substance of today’s decree,” he wrote, “is not of immense personal importance to me.” No, he continued, “(t)he law can recognize as marriage whatever sexual attachments and living arrangements it wishes.” So just as the law may recognize same-sex marriage, it could also recognize a person’s right to marry their pet pig. Just not on Scalia’s watch. He doesn’t think he should decide such things, and in his case I’m inclined to agree with him.

Scalia also had a lot to say in the death penalty case decided today. Even the name of the case echoes the disgusting nature of American death penalty jurisprudence: Glossip v. Gross.

Oklahoma death row inmates filed this suit, not surprisingly after two of them were executed in grisly fashion which I wrote about here. After pesky anti-death penalty advocates somehow “pressured” pharmaceutical companies to stop providing two different drugs that supposedly caused too much pain, Oklahoma managed to find a third drug just as effective, though involving more screaming.

The Court seemed to be saying, you had these two other drugs, you didn’t like them, you haven’t got a better alternative, you got what you deserve.

The majority opinion capsulized the history of this country’s attempts to make execution humane, almost as though such a thing is possible.

Hanging was the preferred method of humane execution till about 1890. People literally lost their heads, or strangled an inordinate time; faces swelled, tongues protruded, eyes popped, there was shit everywhere, and all that jerky dancing went on way past giggling. Not humane enough.

Then came electrocution. Are you kidding me? Blindfolded bald guys strapped to a chair and slathered with conductive jelly, then hit with enough current to light up the small town where they were born. Bones dislocated and broken against the straps, everything swells to popping, same old shit and piss, the sound of bacon frying, sometimes he or she explodes in flame. Even the coroner is inconvenienced till the body cools enough to inspect the cooked brains. Still not quite humane.

Next up, cyanide, the kind that killed a cousin of mine. Breathe deeply, gents, the condemned are told, and it’ll go better for you. Who does that? So, extreme horror, extreme pain, unfortunate memories of all those gassed Jews. Not there yet.

Firing squad: “let’s do it” when slightly paraphrased became a nice slogan for a running shoe company.

Which brings us up to date, with lethal injection, Oklahoma ironically or not being the first state to try it on for size and still struggling to make it fit.

Justice Scalia wrote a corrosive concurring opinion to keep Oklahoma in business, with Justice Thomas signing on just for fun. Scalia and Thomas have earlier written that it’s okay to inflict a lot of pain while weeding out the criminal population, as long as you don’t deliberately intend to do it. So when pain is just an accident or an unfortunate side effect of execution, the hangman is good to go.

Scalia, entertaining as almost ever, opens his opinion with, “Welcome to Groundhog Day,” and launches what he intends a humiliating attack on Justice Breyer for his judicial impertinence to suggest the death penalty be abolished altogether.

Groundhog Day, of course, was a movie about the same day being repeated over and over. Scalia slights the lawyers of the condemned for repeatedly bringing these cases to the court, repeatedly losing, and repeatedly trying again. He doesn’t mention that this is real life, and maybe not as funny as the movie. Not funny to the condemned, of course, though in most cases probably they deserve a rotten death. But not to the lawyers, either, who may not be as comfortable as Scalia is that the United States executes people it later exonerates.

He calls the dissent a “vocal minority,” as though a swing vote is insignificant to outcome (would he say that if Clarence Thomas were a different kind of man?), and lampoons them as “waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare.”

Scalia refutes Breyer’s contention that eighteen years on average on death row is itself cruel and unusual by stating, correctly, that those years are the fault (though I like to say, to the credit) of the lawyers fighting the penalty. So kill ‘em quicker. Never mind it means more dead people later exonerated. Never mind it means the United States remains the most uncivilized civilized nation on Earth.

So, bring on the poison chemicals.

Until you show us something better, prisoners at the bar, this is the most humane method “known to human science.”

Maybe instead of looking for better science, we should look for better humans.

Read full story · Comments { 1 }

We’re Number 3

Boston Police Fuel Up for an Attempted DUI Bust

Boston Police Fuel Up for an Attempted DUI Bust

 

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

There’s something about the Dakotas. Not the Manchester boys, whom we met briefly in 1963 and never gave a musical thought to since, but the states pegged squarely — rectangularly, really — in the north central United States of America.

They’re drowning in alcohol.

North and South Dakota are the number 1 and 2 likeliest places to be arrested for drunk driving. Stumbling in at number 3 is the state I call home: welcome to colorful and moistly convivial Colorado.

This was pointed out to me, and a saloonful of others of his colleagues, by Gary Pirosko, one of Colorado’s finest DUI lawyers, who knows a thing or two about it. This was pointed out to him by Project Know, dedicated to the sober life. This was pointed out to them by the Federal Bureau of Intoxication (mostly just called the FBI).

The FBI says there are more than a million DUI arrests every year in the U.S. Factoring in the crime-stopping capabilities of law enforcement, that means there are almost exactly one billion drunk drivers on the road.

I’ve never been to the Dakotas, so I turned to Wikipedia for clues as to why those two states are purportedly the most inebriated. I found two. That source helpfully and immediately points out that “The Dakotas” are not to be confused with “The Dakota,” a much ritzier living space in New York City.

So far, so good.

The other clue was that nearly half the people who live there are of German ancestry. Germany lost a lot of world wars.

Project Know also looked at some of our big cities, with interesting results. Chicago, a bootlegger’s paradise during Prohibition, racked up more than five thousand DUI arrests in barely a year. Portland: three thousand, three hundred thirty-five in two years. Denver: two thousand, one hundred twenty-eight in almost three years. Kansas City: nine hundred thirty-two in ten months. Seattle, where by God it rains a lot: five thousand four hundred thirty-nine in not even two years. San Francisco, where people leave their hearts and other contents of their bodies on barroom floors with some regularity: two thousand five hundred ninety-four in almost five years.

The big city that gave Project Know the most pause, though, was Boston — not because there were so many DUI arrests, but so few: an average of only two hundred sixty-four a year. But I think I know why. I lived in Boston for many years, and in my memory of their fitness level, the average Boston policeman couldn’t catch a drunken pedestrian.

Alabama has by far the lowest number of drunk driving arrests in the nation. However, I’m not sure it’s totally illegal to drive drunk there.

And my home state? Why are we number 3?

Beyond competitive nature, there’s no explaining Colorado.

Read full story · Comments { 0 }

Birds of a Feather

A child's misery

A child’s garden of misery

 

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

The other day I was looking for a criminal defense lawyer in Nauru who might contribute to the newsletter associated with this blog, “Drunk & Disorderly.” I didn’t find any.

Turns out it’s hard to find a criminal defense lawyer of any sort on this South Pacific island-state. There really aren’t any. Which makes it tough when about one of every nine of the third-smallest-country-in-the-world’s residents is locked up in a detention center. Tough to ever get out of there.

The prison holds about a thousand refugees caught trying to sneak into a much larger island nation — Australia. Australia pays the Nauru government for warehousing the men, women, and children who Australia would otherwise have to imprison on its own shores, two thousand six hundred miles to the southwest, while processing their asylum applications. Always a good idea to keep people, as mistreated as these people allege they are, as far offshore as possible. Child rape, suicide, and beatings play poorly to the onshore press.

Australian legislators this month are scrambling to pass laws that say the foreign detention centers in Nauru and elsewhere are legal, Human rights meddlers brought these conditions to light, and now are suing the government for locking people up in a foreign country in the first place.

The Australian Human Rights Commission conducted a national inquiry into children in immigration detention, and released its results late last year. They called it, “The Forgotten Children.”

“No other country,” they said, “mandates the closed and indefinite detention of children when they arrive on our shores.” They continued, “Unlike all other common law countries, Australia has no constitutional or legislative Bill of Rights to enable our courts to protect children.”

Some of their findings:

  • Children at Nauru have significantly higher rates of mental illness.
  • Their right to education is denied, on average, for more than a year.
  • The government has failed to act in the children’s best interests.
  • Children are subjected to physical and sexual assault so frequently that some, like the sixteen-year-old girl who threw herself off a balcony, resort to self-harm.
  • Dozens of children with physical and mental disabilities are detained for years without hope of release.
  • The levels of physical, emotional, psychological, and developmental distress are extreme.
  • The government generally has violated their human rights.

The government responded by doing what government does second-best — first-best is its ability to convince voters that campaign contributions and bribes are different things — and demonized the messenger. It “lost confidence” in the Human Rights Commission, fired its president, and now is shoring up the legality of what it is doing.

Among the commission exhibits was this, from a 17-year-old who should have been graduating from high school somewhere:

Dear Bird Send My Message

Send my humble greetings and love to people
who are struggling days and night,
who are in every street protesting,
who are moving earth and heaven just to help us.

Dear bird send my message.
Send an image of my eyes- to Abbott*-
where tears are rolling like a river,
send my heart full of sorrow,
send my mind full of thoughts,
send him images of why I came.

Dear bird send my message.
Send my emotions to Morrison**
who is enjoying my pain,
who does not think that I am a human being like him,
who thinks that i am just a number the waste of population.

Dear bird send my message.
Send my appreciation and gratitude to lawyers
who fight for my freedom,
who give me hope that someday I will be able to sleep.

* John “Tony” Abbott, Prime Minister of Australia
** Scott Morrison, then Australia’s Immigration Minister

Message sent.

May it ever be received.

Read full story · Comments { 0 }

Letter from Sarajevo

 

[Editor’s Note: Sadmir Karović, Master of Law, is an independent researcher in Bosnia and Herzegovina whose interests encompass both the criminal law and international human rights. He is a member of the International Expert Team Council of the Institute for Research of Genocide, in Ontario. The organization is dedicated to the memory of the mass murder of more than six thousand Bosnian Muslims in and around Srebrenica during the Bosnian War in July 1995, to the memory of the Holocaust, and to preventing genocide of any people. Other members include Nobel Laureate Sir Elie Wiesel and Branko Lustig, producer, production designer and actor for the film “Schindler’s List.” Sadmir has written extensively about crimes against humanity, organized crime in the Western Balkans, and other topics in the criminal law. I’m pretty sure his first language is Bosnian, so please forgive him any English grammatical errors, which I have not edited in the interest of authenticity. I am honored by his kind permission to publish this brief article here.]

Prevention of Crime — Challenges and Perspectives

Prevention of crime is an important field of human activity in creating a sense of security among citizens. Unfortunately, prevention of crime are often ignored and marginalized. Area criminal etiology of crime is essential to create preventive strategies aimed at the prevention of crime and other forms of destructive behavior. The negative phenomena in society require special treatment experts in various fields (sociologists, lawyers, criminologists, psychologists …) because these are the appearance of a multidisciplinary nature.

There are many theories about the causation of crime that try to give answers to important questions causal crime. The theories of causation have different explanations and views on the causes of crime. The causes of crime can be objective and subjective nature. Criminal etiology is important and essential research field that determines the possible and proportionate to the modalities of preventive action in the future.

Crime is a complex social phenomenon that is constantly changing, adapting to the new conditions. The fundamental question is: Why is happening crime … ?? !! The man as a human being is the focus of science and profession. Crime is a constant companion of man, since the creation of man to the present day. Science and professions are trying to provide valid and acceptable answers to criminological questions.

However, negative phenomena in society (crime, violence and other forms of destruction) are repeated … again, again and again … The prevention strategy must be based on the elimination or reduction of causes, that is the essence …

So, first you need to identify and define the causes of crime and then create a preventive strategy and preventive programs. Crime prevention must include specific mechanisms for protection and be consistent with the needs of real life. The existence of a discrepancy between theory and practice is one of the essential problems. Prevention programs and strategies must be consistent with real life (the conditions, needs …).

Establishing individual criminal responsibility in accordance with the procedure prescribed by the reaction to crime is an alarm to a preventive strategy contains certain deficiencies and negative characteristics. Crime prevention encompasses a set of activities and measures and actions before the commission of the crime. Social prevention is an important form of prevention that includes all entities and individuals (family, school …) in respect of crime prevention such negative phenomena in society. Social prevention includes activities of all entities and individuals focused on the recognition and promotion of universal human values.

Law enforcement agencies must establish partnerships with all companies and individuals in the joint fight crime … it is imperative … Cooperation and partnership of law enforcement agencies with the citizens is very important preventive part of the constellation of establishing and implementing prevention programs and strategies.

Science and profession must be interconnected, harmonized, coordinated and focused on negative phenomena in society (crime, violence, destruction …). Crime is a multidisciplinary problem … not only a problem of law enforcement agencies !!! We all need to contribute to the prevention of crime and other negative phenomena in society. It is our social and personal responsibility. I hope and believe that this short article about crime prevention have positive reflections … Prevention of crime is the key to success …!!!

Read full story · Comments { 0 }