Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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Letter from New York

 

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

Had he lived, Franklin Delano Roosevelt would be 133, and probably still President of the United States.

John Q. Barrett, who teaches criminal procedure at St. John’s University School of Law, is somewhat younger, very much alive, and responsible for one of the more penetrating biographies of Roosevelt. While gathering material to write a forthcoming biography of someone else — Supreme Court Justice and Nuremberg prosecutor Robert H. Jackson, a Roosevelt appointee to the Court — Barrett discovered in Jackson’s papers an unknown mémoire of his working relationship with Roosevelt dating from 1911.

Barrett edited the raw manuscript and turned it into That Man: An Insider’s Portrait of Franklin D. Roosevelt. The work has been called “admirable…even heroic,” “lively, revealing,” and “a rare and happy event.” In the interest of balance, one Amazon reader (that may be too strong a word) dinged it with one star because it didn’t have any pictures.

On this St. Patrick’s Day, Professor Barrett has been kind enough to share the story of another St. Patrick’s Day, seventy years removed, that also happened to be the occasion of Franklin and Eleanor’s fortieth wedding anniversary, which Justice Jackson (also a dear friend) helped them celebrate.

Please allow yourself the treat of reading it here.

 

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Letter from Beijing — Part Four

[Editor’s Note: Chapters One through Three of this book, Back From The Dead: A Landmark Ruling of Wrongful Conviction in China, can be found here, here, and 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 Four.]

 

The Trial

The court system in China is divided into four levels: there are Basic
People’s Courts at the municipal and county levels, Intermediate
People’s Courts in major cities and municipalities, High People’s
Courts at the provincial level and finally the Supreme People’s Court
in the capital. Similarly, the People’s Procurator’s Office [Note 10] functions
on four levels: Basic, Intermediate, and High People’s Procurator’s
Offices at the county, city and provincial levels, respectively, and the
Supreme People’s Procurator’s Office in Beijing.

According to the provisions of the Criminal Procedure Law relating
to the administration of trials, ordinary criminal cases should first be
tried in the Basic People’s Courts; cases that might result in
sentences of death or life imprisonment should first be tried in the
Intermediate People’s Courts; cases of great importance to the
province or municipality should first be tried in the High People’s
Court; and cases of national importance should first be tried in the
Supreme People’s Court. The Intermediate, High and Supreme
Courts also function as courts of appeal and can re-examine cases
from lower courts. A case can only be appealed once — the so-called
‘two-tier-trial system’ — and cases involving the death penalty must
be re-examined by court-appointed specialists. The Criminal
Procedure Law states that cases involving the death penalty on two
years’ probation must be approved by the High People’s Court, and
that cases involving the immediate application of the death penalty
must be approved by the Supreme People’s Court. Cases involving
the death penalty must also undergo a reconsideration procedure,
regardless of whether the defendant chooses to appeal. However, in
1983, in order to deal ‘more quickly and effectively’ with cases
involving ‘severe harm to social order’, the Supreme People’s Court
authorised the High People’s Court to approve the death penalty in
cases of murder, rape, looting and bombing, as well as any other
cases that severely threaten public safety and social order. [Note 11]

Because She Xianglin was suspected of the crime of intentional
homicide and could be sentenced to life imprisonment or even the
death penalty, the legal proceedings needed to be administered by
the Intermediate People’s Court in the city of Jingzhou. Accordingly,
the files were sent to Jingzhou District People’s Procuratorate for
further examination. On 22 September 1994 the Jingzhou
Procuratorate formally raised the charge of intentional homicide
against She Xianglin.

Simultaneously, Zhang Aiqing’s relatives were looking for people to
sign a ‘jointly written letter’, a petition of sorts. Over 200 local
people signed the letter, stating that She Xianglin had no respect for
the law or common morals, that he was prone to drunken arguments
and brawls, and that he had committed adultery and murdered his
sick wife. This intolerable breach of morality had created great public
discontent, and the signatories demanded the government severely
punish Xianglin. This put great pressure on the local officials.

The Criminal Procedure Law at the time required the court to deliver
a copy of the indictment from the procurator’s office to the
defendant at least seven days before the trial and to inform the
defendant of his right to appoint a legal representative for his
defence. [Note 12] On 30 September — the day before the National Day
public holiday — the Jingzhou Intermediate People’s Court notified
She Xianglin that he could appoint a defender. Because Xianglin’s
family were uneducated about such things, he had no idea how to
engage a lawyer, so the court appointed one on his behalf. Although
the Criminal Procedure Law had no clear-cut guidelines at the time,
the courts typically appointed a defence lawyer for defendants who
might be subject to the death penalty. [Note 13] After National Day, as the
beginning of the trial drew near, and although Xianglin’s lawyer
made use of the limited time to inspect the court files and extract
relevant information, his preparation was relatively limited.

On Friday, 7 October 1994, the Jingzhou Intermediate People’s
Court began the trial of She Xianglin for intentional homicide. The
courtroom was small. At the front, above the judges’ stand, hung the
emblem of the People’s Republic of China; on the left side of the
courtroom was the public procurator’s place and on the right, the
defence lawyer’s. Directly opposite the judges were the defendant’s
stand and the public gallery. There were not many people watching
the proceedings, just a few friends and relatives of the victim and the
defendant. The court reporter and the defence lawyer were already
sitting in their respective places, waiting for proceedings to begin.

Three judges, wearing dark-blue uniforms, and two procurators
wearing green uniforms, walked into the courtroom. The uniforms
were in a military style, with decorated collars and epaulettes, and
peaked caps bearing the national emblem. [Note 14] The three judges
formed a panel, with the presiding judge sitting in the middle. [Note 15]
After declaring the judicial session open, two bailiffs led She Xianglin
in from a side door, and sat him on a chair in the defendant’s stand.

The presiding judge began by asking the defendant’s name, age and
other information such as when he was arrested and whether he had
received the indictment. After that, the presiding judge announced
the names of the other judges, the court reporter, the public
procurator and the defence lawyer. He informed the defendant of
his rights: to withdraw his application, to speak in his own defence,
to ask questions of witnesses, to request that evidence be presented
and to make a final statement. After the presiding judge confirmed
that the defendant was aware of these rights and did not wish to
challenge anything, he added that if the defence asked to summon
new witnesses to court, collect new material evidence or written
evidence, or re-inspect and appraise existing evidence, the court
would decide whether or not to grant these requests.

Once the legal proceedings had begun, the presiding judge asked the
public procurator to read out the indictment. The lawyer rose to his
feet and stiltedly obliged, accusing She Xianglin of deliberately
murdering Zhang Aiqing, an action in offence of Article 132 of the
Criminal Procedure Law, and requesting that legal proceedings be
conducted to investigate his responsibility for the crime.

When the presiding judge asked the defendant to make a statement,
emphasizing his responsibility to tell the truth, She Xianglin said: ‘I
didn’t kill anyone. The confession was beaten out of me by the
police.’

The presiding judge moved on to ask the public procurator if he had
questions for the defendant; he said that he had none. The judge
asked the defence lawyer if he had questions; he also had none. The
judge then asked the court reporter to read out a summary of the
evidence. After this was done, and after neither side expressed any
objections, the judge declared the investigation stage of the trial to
be over, and that the court would now hear the arguments.

The presiding judge asked the public procurator to make a
statement. This was extremely simple. He first briefly repeated the
parts of the indictment that indicated that the defendant had
committed a crime, and mentioned the related evidence. He then
stated that the facts of this case were straightforward, and that there
was abundant evidence. Given that public anger was high, he added,
he urged the court to punish the defendant severely.

The procurator sat down, and the defence lawyer was asked to speak
next. He stated that there was insufficient evidence to convict She
Xianglin. Even if the court accepted the evidence of the forensic
investigators and the witnesses, it was merely circumstantial,
proving only that Zhang Aiqing had died and that She Xianglin had a
motive to murder her. In fact, the only evidence that showed She
Xianglin to have actually killed Zhang Aiqing was the defendant’s
confession. And since the defendant had stated that his confession
had been extracted from him under torture, it should not be held up
by the court. What is more, he added, the defendant had suggested
four different methods by which the murder was supposedly
committed, and the public procurator simply chose one of these and
maintained that it was true. This was particularly unreasonable, he
said. On top of all this, the charges stated that the defendant had
taken Zhang Aiqing’s clothes home and burnt them, but there was
no evidence of any kind to verify this. In closing, the defence lawyer
stated that the evidence could not be considered sufficient to prove
that She Xianglin had murdered Zhang Aiqing. The existing evidence
could not eliminate the possibility that she had been murdered by
someone else. He requested the court find the defendant not guilty.

The presiding judge asked the procurator if he had any further
arguments. Rising to his feet again, the procurator stated that She
Xianglin’s confession was the key to the case. It was completely
consistent with the other evidence available, including the autopsy
report and the storage bag filled with stones. This bag was an
especially damning piece of evidence, because according to the case
files the investigators had extracted it from the pond based on
Xianglin’s own confession. Experience had shown, he claimed, that if
investigators find corroborating evidence based on a suspect’s
confession, then the confession was genuinely reliable. As for the
question of why no one had been able to find the ashes of the clothes
at Xianglin’s house, that was to be expected, because at the time the
body was found, the murder would have taken place over two
months before.

When it became clear that neither side had any more arguments, the
presiding judge asked the defendant for a final statement. She
Xianglin repeated that he had not killed anyone, and that the police
often used force to extract confessions. The judge said the court
would consider the issue of whether the confession had been
extorted. He then declared the trial over and set a date for the
announcement of the verdict and sentence.

On 13 October, six days after the trial had begun, the Jingzhou
Intermediate People’s Court in Hubei Province found She Xianglin
guilty of the crime of intentional homicide, sentenced him to death
and permanently deprived him of his political rights. [Note 16] When one of
the judges went to the police lockup to inform Xianglin of the
decision, Xianglin refused to accept it and wanted to appeal. The
judge told him the Hubei Province High People’s Court would
reconsider his case as a matter of course, because of the sentence of
death.

Throughout this period Mrs She had been searching for the
whereabouts of Zhang Aiqing. She searched everywhere, walking to
villages of every size in her county and the neighbouring ones. In
December 1994, in the village of Yaoling, near the city of Tianmen to
the south of Jingshan, she finally heard news of Zhang Aiqing. A man
told her that, two months ago, a mentally ill woman had arrived at
the village. The woman had refused to eat and drink, and wouldn’t
talk, but sometimes she could be found sleeping in the local
cemetery. The villagers took pity on her and gave her some food and
clothes. One family took her to their home, where she had stayed for
a couple of days. Then the woman had just left, as mysteriously as
she had arrived.

After Mrs She heard this she immediately sought out Mr Ni, the
party secretary [Note 17] of that village. Once Mr Ni had heard the story, he
wrote a ‘certificate of sincerity’, on which he affixed the official seal
of the Communist Party Branch Committee, Yaoling Village, Hezhen
County, Tianmen City. The certificate was dated 30 December 1994,
and its contents were as follows:

In the middle of October some people from Group eight in
our village — Ni Xinhao, Ni Boqing, Li Qingzhi and others —
discovered a mentally ill woman. She was about thirty, had a
Jingshan accent and was about 150 centimetres tall, with an
oily, pockmarked face. She said her surname was Zhang,
that she had a six-year-old daughter at home and that she
had become lost while trying to visit some relatives. She
seemed to have the energy level of an old woman. She
stayed at Ni Xinhao’s house for two days, but after that we
do not know where she went. I hereby confirm these facts
and request that they be investigated.

Thanking Mr Ni again and again, Mrs She left the village.

When she returned to Jingshan, Mrs She took the ‘certificate of
sincerity’ to the police. After a policeman had examined it, he said
only: ‘This is too late.’

‘Why?’ Mrs She asked.

‘They’ve decided it already.’

‘Can’t it be appealed to the provincial court?’

‘I’m not sure,’ the policeman replied. ‘I’ll give it to the bosses. Come
back later.’

When the senior police saw the ‘certificate of sincerity’, they felt it
was unreliable. Zhang Aiqing had been murdered, and it was
impossible for anyone to have seen her half a year later. Mrs She had
clearly found someone to write a fake letter because she wanted to
save her son. Granted, some of the villagers had probably seen some
crazy woman, but it couldn’t have been Zhang Aiqing; they must
have written down a description that Mrs She gave them. Besides, it
would be a lot of extra trouble to go through an appeal with new
evidence. The senior police produced a document outlining their
position, named ‘Process of Re-examination and Verification of
Materials’.

But She Xianglin’s family were unaware of this. They believed that
the ‘certificate of sincerity’ would save him, and might even help the
government find the real murderer! They waited anxiously for
Chinese New Year and the coming spring, hardly noticing 1994 draw
to a close.

NOTES

10 The Chinese People’s Procuratorate, which administers the People’s Procurator’s
Offices, is a government body responsible for investigating and prosecuting criminal
cases. The Public Procurators’ Law requires, in Article 6, that the People’s
Procurator’s Offices supervise the enforcement of laws, perform public prosecution
on behalf of the state and investigate criminal cases directly accepted by the People’s
Procuratorates as provided by law.

11 In 2007, as a means of guaranteeing the fair application and accuracy of the death
penalty, the Supreme People’s Court regained its power of authority over such cases.
At present, all death sentences must be reviewed by the Supreme People’s Court.

12 Article 33 of the 1996 Criminal Procedure Law states: ‘A criminal suspect in a case
of public prosecution shall have the right to entrust persons as his defenders from the
date on which the case is transferred for examination before prosecution.’ After
further amendment in 2012, Article 33 now states: ‘A criminal suspect shall have the
right to appoint a defender as of the date on which the suspect is first interrogated by
the investigating authority or is subject to compulsory measures. During the
investigation period, he may appoint only an attorney as his defender. A defendant
has the right to appoint a defender at any time. When the investigating authority first
interrogates a criminal suspect or subjects a criminal suspect to compulsory
measures, the criminal suspect should be informed of the right to appoint a
defender.’

13 Article 34 of the 1996 Criminal Procedure Law states: ‘If there is the possibility that
the defendant may be sentenced to death and yet he has not entrusted anyone to be
his defender, the People’s Court shall designate a lawyer that is obligated to provide
legal aid to serve as a defender.’ The amended 2012 version states: ‘In cases where a
criminal suspect or defendant who may be sentenced to life imprisonment or death
has not retained a defender, the People’s Court, People’s Procuratorate and public
security authority shall notify a legal aid agency to designate a lawyer to defend him
or her.’

14 Before 1984, Chinese judges had no particular uniform and wore plainclothes
when court was in session. Since 1984, judges and procurators have worn uniforms.
Until 2000, these uniforms had three different styles for summer, spring and
autumn, and winter, but all resembled military uniforms and embodied China’s
characteristic ‘militarisation of the dictatorial organs’. Since 2000, judges have worn
a Western-style uniform with a black judge’s robe, and procurators have worn dark
blue Western suits. Judges and procurators both wear badges on their chests
signifying the fairness and sacredness of the judiciary.

15 The Criminal Procedure Law states that first-instance cases in the Intermediate
People’s Courts can be heard by a panel of three, including a judge and people’s
assessors (similar to jurors), or by a panel of three judges. However, in a major
criminal case like this, people’s assessors are generally not used.

16 According to Article 54 of the Criminal Law, ‘deprivation of political rights’ refers
to the removal of the right to vote and to stand for election; the rights of freedom of
speech, of the press, of assembly, of association, of procession and of
demonstration; the right to hold a position in a state organ; and the right to hold a
leading position in any state-owned company, enterprise, institution or people’s
organisation.

17 China has a ‘dual administrative system’, where leadership is shared between
Communist Party officials and government leaders. In any particular village, the
Party Secretary will determine the basic policy direction, while the government
leader (the village head, mayor or similar position) will be responsible for
implementing the policy.

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Crimes of Repetition

Unknown

 

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

So it wasn’t just that one uppity nigra boy got hisself shot caused all the trouble in Ferguson.

The Civil Rights Division of the United States Department of Justice has found that city’s police and courts systemically biased against black Americans. Killing one of them was the sincerest expression of that racial hatred — though not enough to indict the officer who really was only the instrument of city policy.

From 2012 to 2014, nearly ninety percent of documented use of force against Ferguson residents was against black people, who comprise sixty-seven percent of the town. Never mind undocumented force. Even the police dogs were trained to hate the blacks, and never met a black man they didn’t bite, and never met a white man they did bite.

It seems a white man almost couldn’t get arrested in Ferguson, where ninety-three percent of the arrests were of blacks.

The municipal court and city attorneys were no better: the courts were far more likely to dismiss cases against white folks than black; prosecutors offered better deals to whites, who were run through the system much faster.

Ferguson police routinely stopped black people without reasonable suspicion, arrested them without probable cause, and frequently insulted and physically abused their “suspects.” If you were black, you were a suspect. If you made a face at a cop and your face was black, you went to jail. It wasn’t clear that anybody in the Ferguson police department had the remotest familiarity with the United States Constitution.

The Ferguson court was much more interested in raising money for the town than in anything so sissified as justice or the rights of the accused. Again these fines fell hugely disproportionately on black people.

Racial bias was evident in official emails sent back and forth between the Ferguson police and courts. Very jolly they were too:

A November 2008 email stated that President Barack Obama would not be President for very long because “what black man holds a steady job for four years.”

A March 2010 email mocked African Americans through speech and familial stereotypes, using a story involving child support. One line from the email read: “I be so glad that dis be my last child support payment! Month after month, year after year, all dose payments!”

An April 2011 email depicted President Barack Obama as a chimpanzee.

A May 2011 email stated: “An African-American woman in New Orleans was admitted into the hospital for a pregnancy termination. Two weeks later she received a check for $5,000. She phoned the hospital to ask who it was from. The hospital said, ‘Crimestoppers.’”

A June 2011 email described a man seeking to obtain “welfare” for his dogs because they are “mixed in color, unemployed, lazy, can’t speak English and have no frigging clue who their Daddies are.”

An October 2011 email included a photo of a bare-chested group of dancing women, apparently in Africa, with the caption, “Michelle Obama’s High School Reunion.”

A December 2011 email included jokes that are based on offensive stereotypes about Muslims.

Not only did no one in Ferguson government object to the emails, they were frequently forwarded to others so everyone could join the fun.

So pervasive was the rot in law enforcement, so decayed the foundation of the halls of justice in Ferguson, so betrayed the community trust in these institutions, the Justice Department called for a complete abandonment of current policies and practices, and a total overhaul of the justice system in that city.

The effect of the Justice Department findings was that the white officer who shot and killed an unarmed black teen in the dying days of last summer could not be held criminally responsible for what he did. Darren Wilson did not murder Michael Brown, the feds say.

Ferguson justice murdered him.

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Borderline Crimes

Legal Aliens...Hunting Illegal Aliens

Legal Aliens…Hunting Illegal Aliens

 

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

Jose Elena Rodriguez was sixteen years old when he was shot in the back of the head and killed while walking down the street of his hometown, Nogales, Mexico. One shot probably would have been enough, but to be sure, his assailants put nine more into his back. The bullets came from the United States. I don’t mean they were made in the United States: they were fired from the United States through a fence into Mexico, by Border Patrol agents.

There were seven more incidents like that in nine years, when U.S. agents fired across the border into Mexico, killing people they said threw rocks at them.

The Border Patrol agent who shot Gabriel Sanchez Velasquez had the decency to kill him face to face. He said Sanchez Velasquez was grabbing for his gun and he had no choice. Sanchez Velasquez may have been on his knees begging for his life: The Pima County, Arizona, medical examiner said the man was shot from above at an “indeterminate/distant range.”

Forty-four other human beings were exterminated by border agents between 19 February 2005 and 18 February 2014, according to an investigation by The Arizona Republic. Sure, that’s only about five killings a year, and most of them were Mexicans. But it also includes thirteen U.S. citizens, a Border Patrol agent killed by “friendly fire” in an incident that involved only border patrol agents, and a twelve-year-old girl (oh wait…she was Mexican).

None of the border agents was ever indicted, or disciplined.

Things have improved since the Republic’s investigation: agents aren’t supposed to shoot anymore at moving cars that don’t pose a deadly threat; not supposed to move into the path of a car so they have to shoot or be run over; and try like the dickens not to shoot people throwing rocks when the agents have some other choice not involving killing folks.

Someone asked me the other day if I thought Ferguson might be just an aberration. You know, like New York, Cleveland, Phoenix, St. Louis, Los Angeles, Baltimore, Iberia Parish, Houston, Santa Rosa, Washington, Austin, Jonesboro, Las Vegas, Atlanta, Pasadena, Chicago, New Orleans, Gainesville, Dayton, Galveston, Orange County, White Plains, Denver, San Francisco, Oakland, Detroit, Portland, Champaign, Pensacola, Cincinnati, Fairfax County.

All those aberrations.

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Capitol Crimes

 

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

The 9/11 Commission Report, issued by Congress almost eleven years ago, was subtitled “Final Report of the National Commission on Terrorist Attacks Upon the United States.” There was nothing final about it.

Secret pages of the report continue to haunt any claim to finality. As revealed only a month ago, an Al Qaeda operative on sabbatical in my home state, who receives his meals through a slot in the door, characterized the Saudi Arabia royal family as major donors to his terrorist network.

Why shouldn’t he, and why shouldn’t they have been? Most of the 9/11 terrorists were Saudi, Osama bin Laden was Saudi, and — when no other commercial planes were flying — the FBI helped hustle Saudi royal family out of the United States in time to catch lingering celebrations back home.

It’s probably a little embarrassing that the new king of Saudi Arabia happens to be the same guy who was bin Laden’s pen pal not long before 9/11. That local maximum security celebrity I mentioned, Zacarias Moussaoui, says he was the fella who delivered the messages.

It’s probably a little more embarrassing for the United States government, who already knew about that and still pretends it didn’t, and doesn’t.

Twenty-eight pages of the 9/11 Commission Report remain classified as a government secret. “Government secret,” of course, is an oxymoron. Government is by the people, and government people who have seen those pages have told those secrets to nongovernment people — for example, New York Times people.

Why they may remain secret is because of another kind of people: business people. Saudi Arabia is a valued trading partner of the United States — good for Saudi Arabia, good for the United States.

Saudi Arabia sells us oil — lots of it. In 2013, $50.7 billion of it. And half of it comes back to the American oil companies invested in the Saudi Arabian oil companies.

Do we really want to disclose, that the people doing all this business now, financed the terrorists who did us harm then? That’s not good for business. Financing the terrorists was probably itself a business, rather than ideological, investment.

And what’s good for business is good for yet another kind of people: politicians, if they know what’s good for them (and they do). Just as oil is the fuel of industry, business is the fuel of political campaign.

The chairman of the Senate Intelligence Committee certainly knows what’s good for him. Senator Richard Burr sees the secret pages as an historical curiosity. “There may have been a level of participation by some Muslim country that is not commensurate with today,” he told the New York Times, never mind what Muslim country that might be.

Yes, and Osama bin Laden might have simply evolved into a tired old geezer who liked to watch pornographic videos when we killed him. Not commensurate with the man who declared war on the United States and financed his war with Saudi riyals.

None of political life today is commensurate with the dreams of the people who founded this country, none of whom dreamed, for example, that free speech would come to mean all the speech money can buy.

Political donors are sacrosanct; politicians, supplicants. The former protected by the latter, for whom no sacrifice of principle, of honor, of justice, is too dear.

Not even the principle, the honor, or the justice of two thousand, nine hundred ninety-six lives. A blood drop in the bucket, compared to the lives sacrificed throughout history to the leaders of men, leaders financed by the captains of industry.

The 911 Commission report was praised for its literary qualities and became a best-seller, almost as if it were a work of fiction.

As if it were a work of fiction.

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