Anglonautes > English vocabulary > Justice / Law

Les anglonautes

Vocabulary > Justice > USA

Jeff Parker

Florida Today

Cagle

15 September 2010

right

constitutional right to a lawyer
http://www.nytimes.com/2010/09/10/us/10defenders.html

wrong

wrongdoer

crime

petty crimes
http://www.nytimes.com/2010/09/22/nyregion/22court.html

hate crime
http://www.nytimes.com/2010/10/02/nyregion/02suicide.html
http://www.nytimes.com/2010/06/23/nyregion/23hate.html

crime and punishment
http://www.nytimes.com/2010/10/03/weekinreview/03schwartz.html
http://www.nytimes.com/2009/01/04/us/04ohlin.html
http://www.nytimes.com/1995/01/22/weekinreview/
the-nation-o-j-simpson-and-susan-smith-two-crimes-two-punishments.html

criminologist
http://www.nytimes.com/2009/01/04/us/04ohlin.html

law
http://news.findlaw.com/
http://news.findlaw.com/legalnews/lit/schiavo/index.html
http://www.nytimes.com/2010/09/11/us/politics/11judge.html

human rights law > Eliezer Henkin 1917-2010
http://www.nytimes.com/2010/10/17/us/17henkin.html
http://www.law.columbia.edu/center_program/human_rights
http://www.humanrightsfirst.org/index.aspx

hate crime laws
http://www.nytimes.com/roomfordebate/2012/03/07/are-hate-crime-laws-necessary/

lawful

unlawful
http://www.nytimes.com/2010/09/23/us/23adopt.html

unconstitutional
http://www.nytimes.com/2010/09/11/us/politics/11judge.html
http://www.nytimes.com/2010/09/10/us/10gays.html

challenge the law under the Fifth and First Amendments to the Constitution
http://www.nytimes.com/2010/09/10/us/10gays.html

lawlessness
http://query.nytimes.com/gst/abstract.html?res=9400E3DD1438E033A25756C1A9679D946897D6CF

under public corruption laws
http://www.nytimes.com/2009/07/30/us/politics/30jefferson.html

outlaw
http://www.guardian.co.uk/artanddesign/2011/jun/27/billy-the-kid-photograph-sold

allow
http://www.nytimes.com/2009/05/23/us/23suicide.html

enact

"... all citizens are bound by the law"
http://www.nytimes.com/2005/10/29/politics/29watch.html

criminal law
http://en.wikipedia.org/wiki/Criminal_law

law of the land
http://en.wikipedia.org/wiki/Law_of_the_United_States

rule of law
http://www.reuters.com/article/newsOne/idUSN1129837820080111

litigation nation
http://www.nytimes.com/2010/11/06/opinion/l06lawsuit.html

habeas corpus

Habeas corpus is the legal concept
that a prisoner has a right to challenge the basis of confinement
-- to demand that the government produce a valid reason for detention.
The concept was developed in England during the late Middle Ages,
and takes its name from the first two Latin words of the writ filed for a prisoner's release
(a phrase translated variously as "You have the body'' and "Produce the body.'')

Habeas corpus formed a part of the American legal system from colonial times,
and it was the only specific right incorporated in the Constitution.
Article 1, Section 9 states, "The privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it."
The suspension of habeas corpus allows an agency to hold a person without a charge.
Habeas corpus has been suspended a number of times,
most notably by Abraham Lincoln during the early days of the Civil War.

Habeas corpus became a subject of renewed controversy after the Sept. 11th attacks.
When the Bush administration created a system of military tribunals
for dealing with terrorism subjects in 2002,
it asserted that "illegal non-combatants'' fell outside of the Geneva Conventions
and were not entitled to habeas corpus.
That view was rejected by the Supreme Court in 2006.
Congress, then controlled by Republicans,
responded by passing the Military Commissions Act of 2006,
which stripped the federal courts of jurisdiction to hear habeas corpus petitions
filed by detainees challenging the bases for their confinement.
Instead, such challenges were to be governed by the 2005 Detainee Treatment Act,
which allowed detainees to appeal decisions
of the military tribunals to the District of Columbia Circuit,
but only under circumscribed procedures,
including a presumption that the evidence
before the military tribunal was accurate and complete.

In a 5 to 4 decision issued on June 12, 2008,
the Supreme Court ruled that approach to be unconstitutional,
declaring that foreign terrorism suspects held at the Guantánamo Bay naval base in Cuba
have the right to challenge their detention there in federal courts.

http://topics.nytimes.com/top/reference/timestopics/subjects/h/habeas_corpus/index.html

http://news.bbc.co.uk/2/hi/uk_news/magazine/4329839.stm
http://news.bbc.co.uk/1/hi/magazine/4329839.stm

http://www.nytimes.com/2008/11/07/washington/07gitmo.html

State Secrets Privilege

The state secrets privilege
allows the government to shut down litigation simply by invoking national security.
The privilege was a particular favorite of the Bush administration,
which asserted it in dozens of cases,
including ones challenging the legality of extraordinary renditions
and warrantless surveillance.

http://topics.nytimes.com/topics/reference/timestopics/subjects/s/state_secrets_privilege/index.html

http://www.nytimes.com/2010/09/09/us/09secrets.html
http://www.nytimes.com/2009/09/23/us/politics/23secrets.html

Texas > law > law of parties

Texas > law > insanity
http://www.usatoday.com/news/nation/2006-06-20-expert-witnesses_x.htm

Washington Assisted-Suicide Law
http://www.nytimes.com/2009/05/23/us/23suicide.html?hp

Washington > animal cruelty law > bestiality
http://www.usatoday.com/news/offbeat/2006-10-21-bestiality-charge_x.htm

lawmaker

Congress
http://en.wikipedia.org/wiki/Congress_of_the_United_States

laws on grand jury secrecy

lawyer
http://en.wikipedia.org/wiki/Lawyer

trial lawyer > Clarence Darrow
http://www.guardian.co.uk/world/2009/jun/11/clarence-darrow-us-trial-lawyer

lawyers in the case

lawyers involved in the case

ask a federal judge to throw out the case
http://www.usatoday.com/news/nation/2006-02-03-nsa-bridge_x.htm

ask a judge to throw out the case on the grounds that...

sue
http://www.nytimes.com/2010/10/29/nyregion/29young.html
http://www.nytimes.com/2010/07/07/us/07immig.html
http://www.usatoday.com/money/media/2006-11-17-universal-sues-myspace_x.htm

suit
http://www.nytimes.com/2010/10/29/nyregion/29young.html
http://www.reuters.com/article/newsOne/idUSN1129837820080111

lawsuit
http://www.nytimes.com/2011/03/28/business/media/28eminem.html
http://www.nytimes.com/2010/11/06/opinion/l06lawsuit.html
http://www.nytimes.com/2010/09/11/us/politics/11judge.html

class action lawsuit
http://www.nytimes.com/2010/09/19/business/19autos.html
http://www.usatoday.com/money/industries/health/drugs/2006-11-22-vioxx_x.htm
http://www.usatoday.com/money/industries/manufacturing/2006-09-25-light-cigs-suit_x.htm
http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/tobacco/schwabpm92506opn.pdf
http://usatoday.com/news/nation/2006-01-15-katrina-suits_x.htm

file-sharing lawsuit
http://www.usatoday.com/news/nation/2005-12-25-download-suit_x.htm

against class-action lawsuits filed by...
http://www.nytimes.com/2010/09/19/business/19autos.html

file
http://www.nytimes.com/2010/09/11/us/politics/11judge.html

U.S. Constitution > First Amendment > Free speech

Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.
http://caselaw.lp.findlaw.com/data/constitution/amendment01/

defamation

defamation lawsuit > defamatory Internet posts
http://www.usatoday.com/news/nation/2006-10-10-internet-defamation-case_x.htm

defamation suit > claim for libel and invasion of privacy
http://www.usatoday.com/news/washington/2006-08-02-murtha-lawsuit_x.htm

be accused of attempting to get around the law
by laundering corporate donations through the Republican National Committee

Texas law forbids the use of corporate money in political campaigns

alleged
http://usatoday.com/news/nation/2006-01-20-priest-slaying_x.htm

American justice
http://www.guardian.co.uk/commentisfree/cifamerica/2011/sep/22/troy-davis-capital-punishment

injustice
http://www.nytimes.com/2011/12/25/opinion/sunday/injustice-in-murder-cases.html

U.S. Justice Department / the U.S. Department of Justice
http://www.usdoj.gov/

at the Justice Department

U.S. Department of Justice > the Criminal Division CRM
http://www.usdoj.gov/criminal/

U.S. Department of Justice > U.S. Attorneys
http://www.usdoj.gov/criminal/

U.S. Attorney General
http://www.usdoj.gov/ag/
http://www.nytimes.com/2009/09/23/us/politics/23secrets.html
http://www.nytimes.com/2008/12/03/opinion/03wed1.html

Samuel Hazard Gillespie Jr. 1910-2011
S. Hazard Gillespie aggressively pursued securities fraud
as the United States attorney for the Southern District of New York
in the last years of the Eisenhower administration
and was a top litigator for the Manhattan firm of Davis, Polk & Wardwell for nearly 50 years
http://www.nytimes.com/2011/03/09/nyregion/09gillespie.html

Attorney General ≠ attorney (lawyer)
http://www.nytimes.com/aponline/2008/12/19/us/AP-Illinois-Governor.html

State of California > Attorney general
http://www.guardian.co.uk/world/2010/oct/27/arizona-execution-stay-lifted

State of New York > Attorney general
the highest ranking law enforcement officer for the State,
responsible for representing New York and its residents in legal matters.
http://www.oag.state.ny.us/contact.html
http://www.oag.state.ny.us/about.html

United States attorney for the Southern District of New York > Preet Bharara
http://topics.nytimes.com/top/reference/timestopics/people/b/preet_bharara/index.html
http://www.nytimes.com/2010/09/11/business/11fraud.html

The attorney general of Connecticut
http://www.nytimes.com/aponline/2009/03/21/business/AP-AIG-Bonuses.html

United States Attorney > Southern District of New York
http://graphics8.nytimes.com/packages/pdf/nyregion/20090520-bomb-plot-arrests/press-release.pdf

The Manhattan district attorney’s office > investigate / inquiry
http://www.nytimes.com/2010/09/22/nyregion/22huguette.html

justice

deliver justice
http://www.nytimes.com/2011/08/18/opinion/threadbare-american-justice.html

a justice
http://www.nytimes.com/2005/11/03/politics/politicsspecial1/03justice.html

American justice >
The television show called CSI, which stands for “crime scene investigation”
http://www.timesonline.co.uk/article/0,,482-1282984,00.html

the judiciary

legal

illegality

legal sources close to...

legal jeopardy

litigate

legally

legal action

legal battle

legal feud
http://www.nytimes.com/2010/12/31/business/31twins.html

court fight
http://www.usatoday.com/news/washington/2006-05-01-smith-court_x.htm

legal drama
http://www.usatoday.com/news/nation/2006-04-24-moussaoui_x.htm

Terri Schiavo Case:
Legal Issues Involving Healthcare Directives, Death, and Dying
http://news.findlaw.com/legalnews/lit/schiavo/

court battle

penalties

legal wrangling

violations of rights such as due process

jurisdiction

litigious

judge

judgeship
http://www.nytimes.com/2011/07/05/nyregion/
with-salary-freeze-more-new-york-judges-are-leaving-the-bench.html

federal judge
http://www.nytimes.com/2011/10/09/nyregion/judge-denny-chin-of-federal-court-discusses-sentencing.html

federal bankruptcy judge > Arthur J. Gonzalez
http://dealbook.nytimes.com/2011/12/29/a-judge-who-reshaped-the-corporate-landscape/

court hearing

enter the courtroom in handcuffs, chains and leg shackles

a white jail shirt that labeled [...] an “ultra security inmate”

order

be released on his/her own recognizance

charge

Dale S. Hausner,

one of two arrested in the serial shooter case,

is seen during his initial court appearance Friday in Phoenix.

By Jack Kurtz, pool

Friends of Phoenix suspect shocked

Updated 8/6/2006 12:43 AM ET
http://www.usatoday.com/news/nation/2006-08-05-phoenix-friends_x.htm

legal team

file a motion to move the case elsewhere because of extensive publicity

file divorce papers
http://www.usatoday.com/life/people/2006-04-05-eminem-divorce_x.htm

filing
http://www.nytimes.com/packages/pdf/national/20060622balco_doc.pdf

proceedings

presiding judge

The judge in the case, Bob Perkins of the 331st Judicial Criminal District Court

U.S. District Judge Marcia Cooke
http://www.usatoday.com/news/nation/2008-01-22-padilla-sentencing_N.htm

US district judge Gregory Presnell
http://www.guardian.co.uk/usa/story/0,,1793794,00.html

U.S. District Judge Reggie B. Walton
http://www.usatoday.com/news/washington/2006-05-26-cia-leak_x.htm

the presiding administrative judge of the region

Judge Francis J. Darigan of Providence County Superior Court

Grant County Superior Court Judge Ken Jorgensen
http://www.usatoday.com/news/nation/2006-07-10-playmate-stabbing_x.htm

McClain County Judge Gary Barger
http://www.usatoday.com/news/nation/2006-04-17-okla-case_x.htm

Burton Bennett Roberts 1922-2010
a celebrated former justice and chief administrative judge of State Supreme Court in the Bronx
and a larger-than-life model for an irascible judge in Tom Wolfe’s 1987 best-seller, “The Bonfire of the Vanities”
http://www.nytimes.com/2010/10/25/nyregion/25roberts.html

state judicial elections
http://www.nytimes.com/2010/10/30/opinion/30sat2.html

retention elections - states ask for a yes-or-no vote on whether to grant sitting justices another term
http://www.nytimes.com/2010/10/30/opinion/30sat2.html

dismiss rape charges
http://www.usatoday.com/sports/college/lacrosse/2006-12-22-duke-rape-charges_x.htm

drop the case
http://www.usatoday.com/news/nation/2006-08-28-karr_x.htm

bribery case
http://www.nytimes.com/2009/07/30/us/politics/30jefferson.html

civil case
http://www.nytimes.com/2011/08/25/nyregion/money-is-now-at-the-fore-of-strauss-kahn-case.html

file the first criminal charges against

criminal charge

carry a penalty of...

county attorney
http://www.maricopacountyattorney.org/

be elected county attorney

California's Attorney General
http://www.usatoday.com/money/industries/technology/2006-10-04-hp-charges_x.htm

Attorney General of Texas
http://www.oag.state.tx.us/oagnews

affidavit
http://graphics8.nytimes.com/packages/pdf/national/10illinois_complaint.pdf

investigation

investigator

Representative Tom DeLay (L)

speaking to one of his attorneys during his appearance today

at the Travis County Courthouse in Austin, Tex.,

where he has been accused of conspiracy and money-laundering.

Pool photo by Jay Janner

DeLay, in First Court Appearance, Seeks a New Judge

By PHILIP SHENON and DAVID STOUT

NYT

October 21, 2005
http://www.nytimes.com/2005/10/21/politics/21cnd-delay.html

attorney
http://www.usatoday.com/news/washington/2006-11-04-terrorism-detainees_x.htm

The Judiciary Act of 1789 created the Office of the Attorney General > the US attorney general
http://www.usdoj.gov/ag/
http://www.usdoj.gov/
http://en.wikipedia.org/wiki/United_States_Attorney_General
http://www.usatoday.com/news/washington/2006-04-20-gonzales-child-porn_x.htm

The United States Department of Justice
http://www.usdoj.gov/index.html

U.S. attorneys
http://www.usatoday.com/news/washington/2007-03-22-us-attorneys-profiles_N.htm

New York attorney general
http://www.oag.state.ny.us/

Louisiana attorney general

Colorado Attorney General John Suthers
http://www.usatoday.com/news/nation/2006-07-28-colorado-killer_x.htm

state attorney general

District Attorney DA
http://www.usatoday.com/sports/college/lacrosse/2007-01-12-duke-case-da_x.htm
http://fl1.findlaw.com/news.findlaw.com/usatoday/docs/jacko/cajackson121803cmp.pdf

District Attorney > felony complaint
http://fl1.findlaw.com/news.findlaw.com/usatoday/docs/jacko/cajackson121803cmp.pdf

Queens district attorney

Brooklyn district attorney
http://www.nytimes.com/2008/10/28/nyregion/28police.html

El Paso County district attorney

Johnson County district attorney

Travis County District Attorney

Westchester County district attorney

accuse

criminal affidavit > Second-Degree Murder Charges Against a Doctor and Two Nurses
Accused of Killing Hospital Patients During Hurricane Katrina
State of Louisiana v. Anna M. Pou, Lori L. Budo, and Cheri A. Landry July 2006
http://news.findlaw.com/nytimes/docs/katrina/lapoui706wrnt.html

Attorneys for the parents of a brain-damaged Florida woman

an attorney for the plaintiffs

lead attorney

State Attorney

state Attorney General Charles Foti

Chicago > Robert D. Boyle, the chief deputy special state’s attorney
http://www.nytimes.com/2006/07/20/us/20chicago.html

district attorney
http://www.usatoday.com/news/nation/2006-12-28-police-charged_x.htm

The district attorney in New Orleans / Orleans Parish District Attorney Eddie Jordan

waive an attorney-client privilege

waiver

continue testifying under limited waiver

waive extradition
http://www.usatoday.com/news/nation/2006-10-14-iowa-shooting_x.htm

waive one's right to a jury trial
http://www.reuters.com/article/domesticNews/idUSN2537078320080125

court

federal trial court
http://www.nytimes.com/2010/09/11/us/politics/11judge.html

federal courthouse
http://www.nytimes.com/2010/09/11/us/politics/11judge.html

Washington Courts
http://www.courts.wa.gov/newsinfo/index.cfm

clerical court

'kangaroo court'
http://www.independent.co.uk/news/world/americas/
us-accused-of-using-kangaroo-court-to-try-men-accused-of-role-in-september-11-attacks-781007.html

courtroom

in the court

in court

appear in court

appear in court on robbery charges

wearing handcuffs and jail-issue clothing
http://www.usatoday.com/sports/college/football/2006-01-03-clarett-bond_x.htm

hearing

juvenile court judge
http://www.usatoday.com/news/nation/2006-02-22-caged-children_x.htm

Supreme Court of Florida > Opinion
http://www.nytimes.com/2006/07/07/business/07tobacco.html
http://fl1.findlaw.com/news.findlaw.com/nytimes/docs/tobacco/fla145vrdct70606.pdf

Ohio Supreme Court > Opinion
http://www.nytimes.com/packages/pdf/national/20060726_ohio_opinion.pdf

Virginia Supreme Court

Manhattan Supreme Court

in State Supreme Court in Manhattan

throw out

Manhattan Criminal Court

New Jersey Superior Court in Newark
http://www.nytimes.com/2006/02/23/business/23hedge.html

Maricopa County Superior Court

Superior Court Judge Alfred Delucchi

Superior Court Judge Rodney Melville

state Circuit Judge Andrew Owens
http://www.usatoday.com/news/nation/2006-03-15-brucia_x.htm

Circuit Judge Beverly Snukals
http://www.usatoday.com/news/nation/2006-10-23-richmond-slayings_x.htm

Texas state judge
http://www.usatoday.com/news/nation/2006-02-01-yates_x.htm

judgment

order

order
http://news.findlaw.com/nytimes/docs/moussaoui/usmouss22206ctordw.html

ruling

court ruling
http://www.usatoday.com/news/nation/2006-01-20-md-same-sex-mariage_x.htm

Under the order handed down in Miami by Judge Alan Gold...

your honor

federal magistrate

federal judicial officials

federal, state and local court officials

U.S. Courts
http://www.uscourts.gov/

rural courthouse

ancillary courts like traffic court and family court

family court judge

the New York State Unified Court System

The California Supreme Court

The Connecticut Supreme Court

the Senate Judiciary Committee

federal justice > decision / amended & final memorandum opinion
http://graphics8.nytimes.com/packages/pdf/13military/031111036221.pdf

federal justice > U.S. District Court decision August 2010
A federal judge in San Francisco strikes down
California’s voter-approved ban on same-sex marriage,
handing a temporary victory to gay rights advocates
in a legal battle that seems all but certain to be settled by the Supreme Court
http://documents.nytimes.com/us-district-court-decision-perry-v-schwarzenegger
http://www.nytimes.com/2010/08/06/us/06assess.html

federal justice > United States District Court for the District of Columbia > memorandum opinion >
IN RE: SEARCH OF THE RAYBURN HOUSE OFFICE BUILDING ROOM
NUMBER 2113 WASHINGTON, D.C. 20515
http://graphics.nytimes.com/packages/pdf/national/20060710_RAYBURN_OPINION.pdf

federal justice > UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK > Opinion and order 2009
http://www1.nysd.uscourts.gov/cases/show.php?db=special&id=90

United States District Court in Brooklyn

United States District Court - Central District of California
http://graphics8.nytimes.com/packages/pdf/PhillipsDecision.pdf

federal courthouse

federal racketeering laws

Federal District Court

Federal District Court for the Central District of California
http://www.nytimes.com/2010/10/13/us/13military.html
http://graphics8.nytimes.com/packages/pdf/13military/031111036449.pdf
http://graphics8.nytimes.com/packages/pdf/13military/031111036221.pdf
http://www.nytimes.com/2010/10/13/us/13military.html
http://graphics8.nytimes.com/packages/pdf/13military/031111036449.pdf

federal district judge

judge / justice

censure is the second most serious form of public discipline a judge can receive,
one step short of removal from office
http://www.nytimes.com/2005/08/26/nyregion/26abduct.html

federal judge > Virginia A. Phillips
http://www.nytimes.com/2010/09/11/us/politics/11judge.html

federal judge > judgment and permanent injunction 2010
http://www.nytimes.com/2010/10/13/us/13military.html
http://graphics8.nytimes.com/packages/pdf/13military/031111036449.pdf

federal judge > injunction 2008
http://graphics8.nytimes.com/packages/pdf/national/wiki_injunction.pdf

federal judge > Temporary Restraining Order 2008
http://graphics8.nytimes.com/packages/pdf/national/wiki_tro.pdf

federal judge > contempt of court 2008
http://www.nytimes.com/2008/02/20/us/20anthrax.html

rule
http://www.nytimes.com/2010/09/10/us/10gays.html

ruling / opinion / memorandum opinion
http://www.nytimes.com/2010/09/10/us/10gays.html
http://graphics8.nytimes.com/packages/pdf/PhillipsDecision.pdf
http://files.findlaw.com/news.findlaw.com/nytimes/docs/epa/nyepa31706opn.pdf

the top court

Supreme Court
http://www.supremecourtus.gov/
http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States
http://www.usatoday.com/news/washington/2006-05-01-smith-court_x.htm
http://www.nytimes.com/2005/11/03/politics/politicsspecial1/03legal.html
http://www.nytimes.com/pages/politics/politicsspecial1/index.html
http://www.nytimes.com/2005/03/25/politics/25schiavo.html

Historic Supreme Court Decisions - by Party Name
http://www4.law.cornell.edu/supct/cases/name.htm

Supreme Court > Judge John G. Roberts Jr. / the 17th chief justice of the United States
http://www.nytimes.com/2005/09/29/politics/politicsspecial1/29cnd-confirm.html
http://www.guardian.co.uk/usa/story/0,12271,1581221,00.html

Chief Justice William H. Rehnquist
http://topics.nytimes.com/top/reference/timestopics/people/r/william_h_rehnquist/index.html

the justices
http://www.usatoday.com/tech/news/2006-01-23-blackberry_x.htm

be sworn in

dismiss two lawsuits

hear the case

nix / reject / refuse to hear
http://www.usatoday.com/tech/news/2006-01-23-blackberry_x.htm

lower court

decision

threat
http://www.nytimes.com/2005/03/20/national/20judges.html

judicial process

accuser

lawyer

lawyers for...

tort lawyer

rest

rest case

forensic evidence
http://www.usatoday.com/news/nation/2006-03-23-student-strangled_x.htm

autopsy
http://www.nytimes.com/packages/pdf/national/bootcamp-statement.pdf

plaintiff
http://graphics8.nytimes.com/packages/pdf/13military/031111036221.pdf
http://www.nytimes.com/2010/09/10/us/10gays.html
http://graphics8.nytimes.com/packages/pdf/PhillipsDecision.pdf

defendant
http://graphics8.nytimes.com/packages/pdf/PhillipsDecision.pdf

litigant

civil litigant

contention

gang member

batterer

court stenographer

murder rap

white-collar fraud (FA)

corporate fraud
http://www.usatoday.com/money/industries/energy/2006-05-25-enron_x.htm

business fraud
http://www.usatoday.com/money/industries/energy/2006-07-05-lay_x.htm
http://www.usatoday.com/money/industries/energy/2006-07-05-lay_x.htm

corporate corruption
http://www.guardian.co.uk/enron/story/0,,1783510,00.html
http://www.guardian.co.uk/enron/story/0,,1783657,00.html
http://www.guardian.co.uk/commentisfree/story/0,,1783349,00.html

enter the plea

enter a plea of guilty or no contest
http://www.usatoday.com/life/people/2006-08-02-gibson-charged_x.htm

plead
http://www.usatoday.com/news/nation/2006-07-10-playmate-stabbing_x.htm

plead innocent

proclaim his innocence

plead not guilty
http://www.usatoday.com/news/nation/2007-01-19-student-dead_x.htm
http://www.usatoday.com/news/nation/2006-11-02-arson-suspect_x.htm
http://www.usatoday.com/news/nation/2006-04-11-entwistle_x.htm

plead not guilty to charges of first-degree assault and two counts of armed criminal action
http://www.usatoday.com/news/nation/2006-09-21-mo-kidnapping_x.htm

plead not guilty to charges of murder and attempted murder
http://www.usatoday.com/news/nation/2006-02-22-homeless-beatings_x.htm

plead not guilty to charges of
second-degree murder, attempted murder, assault and criminal possession of a weapon

unrepentant
http://www.usatoday.com/news/nation/2006-04-24-moussaoui_x.htm

plead guilty to...
http://www.usatoday.com/news/nation/2008-05-31-bodybuilding-murder_N.htm
http://www.usatoday.com/news/nation/2007-10-08-teen-abductions_N.htm
http://www.usatoday.com/news/nation/2006-01-04-abramoff-florida_x.htm

plead guilty to second-degree murder by complicity
http://www.usatoday.com/news/nation/2006-07-10-playmate-stabbing_x.htm

plead guilty to contempt of court
http://www.usatoday.com/life/people/2007-04-24-francis-sentence_N.htm

plead guilty to obstruction of justice
http://www.nytimes.com/2008/12/02/us/02detroit.html?hp

plea agreement

under a plea agreement

plea deal
http://www.usatoday.com/news/nation/2006-09-29-nightclub-sentence_x.htm

plea agreement
http://news.findlaw.com/nytimes/docs/crim/uscnnghm112805plea.pdf

agree to a plea bargain
http://usatoday.com/money/industries/retail/2006-01-27-retail-fraud_x.htm

agree to plead guilty to 100 counts of involuntary manslaughter
http://www.nytimes.com/2006/02/01/national/01nightclub.html

enter the plea
http://www.nytimes.com/2006/02/01/national/01nightclub.html

plead guilty to defrauding the world's largest retailer
and to not paying federal income tax on his ill-gotten gains
http://usatoday.com/money/industries/retail/2006-01-27-retail-fraud_x.htm

plead guilty to fraud, public corruption and tax evasion / plead guilty to three felony counts

plead guilty to indecent assault and corruption of minors
http://www.usatoday.com/news/nation/2006-08-03-wanted-professor_x.htm

guilty plea
http://www.nytimes.com/2008/02/15/nyregion/15actress.html

enter his/her guilty plea

plead guilty to fraud and conspiracy

plead guilty to vehicular homicide
http://www.usatoday.com/news/nation/2007-03-25-picture-sentence_N.htm

conspiracy to commit acts of terrorism, commit aircraft piracy, destroy aircraft,
use weapons of mass destruction, murder U.S. employees and destroy property

counts of aggravated criminal sexual abuse
http://www.nytimes.com/aponline/us/AP-Priest-Abuse.html

mental health expert / forensic psychiatrist
http://www.usatoday.com/news/nation/2006-06-20-expert-witnesses_x.htm
http://www.usatoday.com/news/nation/2006-07-18-yates_x.htm

be legally sane
http://www.usatoday.com/news/nation/2006-06-20-expert-witnesses_x.htm

neuropsychologist
http://www.usatoday.com/news/nation/2006-07-10-yates_x.htm

state judge

Judge John Hill, a senior appellate justice in Texas

Circuit Judge

Circuit Judge M. Brooke Murdock
http://www.usatoday.com/news/nation/2006-01-20-md-same-sex-mariage_x.htm

Circuit Court Judge Michael Lee Moore
http://www.usatoday.com/news/nation/2006-01-24-emt-killing_x.htm

order prison time

rule

ruling

a string of back-and-forth rulings

stay

instructions on the law

probe

be under investigation

grand jury
http://www.usatoday.com/news/nation/2007-03-16-shooting_N.htm
http://www.usatoday.com/news/nation/2006-09-20-nursing-home-deaths_x.htm
http://www.usatoday.com/news/washington/2006-06-16-mckinney_x.htm
http://www.usatoday.com/news/nation/2006-03-30-slain-pastor_x.htm
http://usatoday.com/money/industries/retail/2006-01-27-retail-fraud_x.htm

federal grand jury
http://campus.udayton.edu/~grandjur/faq/faq.htm
http://campus.udayton.edu/~grandjur/faq/faq3.htm
http://en.wikipedia.org/wiki/Grand_jury#Federal_grand_juries

grand jury

jury, typically of 23 jurors,
empaneled by the state to examine whether
the evidence supporting a criminal accusation
is sufficient for prosecution to proceed.
(NYT Guide to Essential Knowledge - October 2008)
http://www.nytimes.com/2008/10/30/nyregion/30police.html
http://www.nytimes.com/2008/10/28/nyregion/28police.html
http://www.usatoday.com/sports/college/lacrosse/2006-04-18-duke-arrests_x.htm

grand jury subpoena
http://www.thelenreid.com/index.cfm?section=articles&function=ViewArticle&articleID=116
http://www.aclu.org/safefree/general/18503lgl20040830.html
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00423.htm
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/28/AR2006072801606.html

grand jury investigation
http://www.usatoday.com/news/nation/2006-08-01-phone-records_x.htm
http://www.nytimes.com/2006/06/24/us/24mayor.html

charge

count

racketeering conspiracy

at the federal courthouse

lie (rég)

perjury
http://www.nytimes.com/2005/10/30/politics/30legal.html

making false statements

prove

abuse
http://www.usatoday.com/news/nation/2006-02-22-caged-children_x.htm

collect "street tax"

run gambling operations

hearing

waive a hearing

waive one's right to a hearing
http://www.usatoday.com/news/nation/2006-03-30-slain-pastor_x.htm

waive one's right to a preliminary hearing
http://www.nytimes.com/2005/04/20/national/20btk.html

the court system

court clerk

New York Times > One in 8 Million > The Jury Clerk > Louise Nicholas
http://www.nytimes.com/packages/html/nyregion/1-in-8-million/index.html

court security officer

courtroom

court session

at the courthouse

in the jury box

at the defense table

United States marshal

file charges against...

file motions to dismiss the charges

malice

absence of malice
http://www.imdb.com/title/tt0081974/
http://www.helpstopfraud.org/assets/adeptiv/upload/attach/Immunity%20Provisions.pdf

act maliciously

face four felony charges:
using fraud to obtain confidential information from a public utility,
unauthorized access to computer data,
identity theft
and conspiracy to commit those crimes
http://www.usatoday.com/money/industries/technology/2006-10-04-hp-charges_x.htm

felony
http://www.nytimes.com/2012/01/10/opinion/paying-a-price-long-after-the-crime.html
http://www.usatoday.com/news/nation/2006-08-12-serial-killings_x.htm

felony > bestiality
http://www.usatoday.com/news/offbeat/2006-10-21-bestiality-charge_x.htm

plead guilty to misprision of a felony
http://www.nytimes.com/aponline/us/AP-Attorney-Indicted.html

misdeed
http://www.nytimes.com/2009/10/11/movies/11polanski.html

misdemeanor battery case
http://www.nytimes.com/aponline/2010/06/19/arts/AP-US-People-Matthew-McConaughey.html

plead guilty to second-degree criminal contempt, a misdemeanor
http://www.usatoday.com/news/nation/2006-01-30-army-jail_x.htm

fine

cocaine conspiracy
http://www.usatoday.com/news/washington/2006-03-22-colombians-indicted_x.htm

Congressional hearing

fifth amendment rights
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

multiple offender

criminal enterprise

murder
http://www.wordiq.com/definition/Murder

investigation

request a gag order
http://www.usatoday.com/news/nation/2006-04-17-okla-case_x.htm

hearing on the gag motion
http://www.usatoday.com/news/nation/2006-04-17-okla-case_x.htm

Witness, punched by Mr. Blount prior to the shooting.

(Aug. 6, 1993)

The New York Times
http://www.nytimes.com/packages/pdf/nyregion/20070408_APPEAL_DOCS/20070408_APPEAL_lopez.pdf

Accusers Recant, but Hopes Still Fade in Sing Sing, NYT, 13.4.2007
http://www.nytimes.com/2007/04/13/nyregion/13appeal.html

affidavit
http://www.nytimes.com/packages/pdf/nyregion/20070408_APPEAL_DOCS/20070408_APPEAL_iyesi.pdf
http://www.nytimes.com/packages/pdf/nyregion/20070408_APPEAL_DOCS/20070408_APPEAL_kent.pdf
http://www.nytimes.com/packages/pdf/nyregion/20070408_APPEAL_DOCS/20070408_APPEAL_lopez.pdf
http://www.nytimes.com/packages/pdf/nyregion/20070408_APPEAL_DOCS/20070408_APPEAL_thompson.pdf
http://www.nytimes.com/packages/pdf/nyregion/20070408_APPEAL_DOCS/20070408_APPEAL_velasquez.pdf

a doctor's affidavit

federal affidavit
http://www.nytimes.com/2008/03/11/nyregion/11night.html?ref=nyregion
http://www.usatoday.com/news/nation/2006-07-03-iraq-charges_x.htm

subpoena
http://www.usatoday.com/news/washington/2006-05-26-cia-leak_x.htm
http://technology.guardian.co.uk/online/search/story/0,,1691274,00.html

subpoena
http://www.nytimes.com/2011/01/09/world/09wiki.html

be subpoenaed to turn over personal records in an investigation into possible insider trading

remain on probation

be given a new identity in the the federal witness protection program

parole

parole
http://cityroom.blogs.nytimes.com/2010/07/03/police-officers-killer-is-freed-after-35-years/

parolees
http://www.nytimes.com/2009/09/27/us/27parole.html

parole agent
http://www.nytimes.com/2009/09/27/us/27parole.html

paroled
http://www.nytimes.com/2009/09/27/us/27parole.html

global-positioning ankle bracelets
http://www.nytimes.com/2009/09/27/us/27parole.html

revoke his/her parole
http://www.nytimes.com/2009/09/27/us/27parole.html

award
http://www.usatoday.com/news/nation/2006-10-10-internet-defamation-case_x.htm

award $437,000 in damages

pursue damages
http://www.nytimes.com/2010/12/25/nyregion/25damages.html

award $1.7 million
http://www.usatoday.com/news/nation/2006-04-28-spanking-trial_x.htm

17.7.2004
http://www.nypost.com/

be summoned

before a grand jury investigating...

testify before a grand jury

testify in court

remain under a contempt-of-court order

be clear of legal jeopardy

Addressing the Justice Gap

August 23, 2011
The New York Times

Most low-income Americans cannot afford a lawyer to defend their legal interests, no matter how urgent the issue. Unless they are in a criminal case, most have no access to help from government-financed lawyers either.

In civil proceedings like divorces, child support cases, home foreclosures, bankruptcies and landlord-tenant disputes, the number of people representing themselves in court has soared since the economy soured. Experts estimate that four-fifths of low-income people have no access to a lawyer when they need one. Research shows that litigants representing themselves often fare less well than those with lawyers. This “justice gap” falls heavily on the poor, particularly in overburdened state courts.

There is plenty the government, the legal profession and others can do to improve this shameful state of affairs. With the economic downturn, only around two-thirds of law school graduates in 2010 got jobs for which a law degree is required, the lowest rate since 1996. That leaves the other third — close to 15,000 lawyers — who, with financial support from government and the legal profession, could be using their legal expertise to help some of those who need representation.

While the Constitution requires that defendants in criminal cases be provided a lawyer, there is no such guarantee in civil cases. The Legal Services Corporation, created by Congress, gives out federal grants that provide the bulk of support for legal aid to the poor. Over the decades, that budget has shrunk — it was $404 million in 2011, about one-third less than it was 15 years ago, adjusted for inflation. The House Appropriations Committee has proposed reducing that to $300 million for 2012. The cut would be devastating; the budget should, instead, be increased.

Half of the people who seek help from legal aid offices are already turned away. Some offices are so understaffed that they must engage in triage, so that in, say, domestic abuse cases, they will only assist someone seeking a restraining order against a violent partner if that person is in immediate danger of being hurt again.

State bar associations could help address these needs by requiring lawyers to report their pro bono service — such disclosure would likely increase many lawyers’ service to the recommended 3 percent to 5 percent of their paid work. Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces.

Legal education must also change. The Carnegie foundation recommends that all law students be given experience in public advocacy, of which providing legal services is one kind. At the same time, law schools should expand loan forgiveness programs for legal services lawyers. A few have such programs, but most schools do not — and not enough schools view tuition as a source to help support future legal-services lawyers.

The justice gap is widening. Government, law schools and the profession need to work together to redesign and fortify the grossly deficient legal services system.

Addressing the Justice Gap, NYT, 23.8.2011,
http://www.nytimes.com/2011/08/24/opinion/addressing-the-justice-gap.html

Reflecting on a Lawsuit Against a 4-Year-Old

October 29, 2010
The New York Times
By SUSAN DOMINUS

That children under the age of 5 make it through the day, more often than not, without grievous bodily injury is something of a miracle, one of the many that present themselves to people once they become parents. But even young children have an instinct for self-preservation, which is why I find it even more mystifying how rarely those creatures — stick-wielding, stone-chucking, body-flinging — actually harm others.

The inevitable close calls leave even watchful parents in a guilty cold sweat, praying in gratitude to whatever playground deity intervened before push turned to shove-that-preschooler-right-off-the-slide.

And then, every once in a while, the magic of close calls fails. The stick meets eye, the sled careens into shins — or, as happened in April 2009 on East 52nd Street, a 4-year-old on training wheels collides with a woman using a walker. That woman, Claire Menagh, broke her hip (and, several months later, died of unrelated causes, at age 87). Her estate sued not only the two mothers whose 4-year-olds had been riding their bicycles on the sidewalk, but the children as well, for negligence.

This month, a judge ruled that the case against the 4-year-old girl involved could proceed (the family of the boy named in the suit did not file a motion for dismissal). Reading the judge’s ruling — which cites cases dating to 1928, and suggests that a 4-year-old could be held to the standard of some mythical “reasonable child” of that age — I kept flashing back to images from my college-era art history class: medieval baby Jesus, looking more like miniature adult Jesus, a representation of children as small adults so outdated as to seem almost incomprehensible through the lens of modernity.

Even as we expect our children to be ever more precocious — bilingual before kindergarten; too old at 4 for picture books, thank you; capable of showing us around our iPhones — somehow we never expect them to be ever more adult; certainly not so adult as to be potentially liable for negligence. One of my own 4-year-old twin sons not only believes Batman lives and breathes, but assumes he will someday grow up to be Batman. I have little fantasy that he is “reasonably” anything in particular when it comes to his judgment.

On Friday, parents and others in the neighborhood where the accident occurred shook their heads at the absurdity of suing someone so young, even as they acknowledged that the sidewalk was, as Meg Chamberlin, who lives on the block, put it, “a gray zone.”

In the condensed spaces of New York, where bedrooms double as playrooms and kitchens as home offices, the sidewalk is both throughway and backyard, which city officials recognize: it is indeed legal for children 12 and younger to ride bikes on the sidewalk. One resident of the apartment complex, who said she did not want to be quoted because of tensions there, said the community had long been divided between parents and nonparents over issues like how late children could play in the back of the building and how loudly.

Ms. Chamberlin, a mother of children ages 3 and 5, said the lawsuit had only heightened her own sensitivities about how she parents in the city.

“You don’t want to be superhovering parents,” she said; but she no longer feels she can take the chance that her child will veer unexpectedly into those shared spaces. Caught up in conversation, Ms. Chamberlin did not notice that an older woman and her companion had halted, blocked in their path by her stroller. “Excuse me,” the older woman said loudly, at which point Ms. Chamberlin hastily stepped aside, pulling the stroller. Resolution reached; lawsuit avoided.

The sheer density of New York — all that crowding, all those eyes — is what makes parenting often feel like a hotly contested performance. “On playgrounds, I mostly spend my time having imaginary arguments with other parents who are secretly judging me,” the singer Jonathan Coulton, a Brooklyn parent, recently posted on Twitter.

Self-consciously, a mother or father intervenes in children’s disputes at the risk of being deemed a helicopter parent; or maybe that parent does not hover, indulging in a rare moment of conversation, or God forbid, a complete train of thought, at the risk of being judged a bad caregiver — or, worse, having a child sued for negligence.

At MacArthur Park on East 49th Street, the closest playground to where the accident occurred, a yellow ribbon had been strung around the gate on Friday, with a surprisingly lawyerly caveat: Enter at Your Own Risk. The ribbon had a Halloween twist — spooky images in black were printed there as well — but it seemed, that day, appropriate for any playground at any time of year. Young children, so fragile, so tender, can also be a menace, a force of nature, like a tornado — and wholly unpredictable, like tornadoes.

Accidents happen; we all try not to get carried away.

Reflecting on a Lawsuit Against a 4-Year-Old, NYT, 29.10.2010, http://www.nytimes.com/2010/10/30/nyregion/30bigcity.html

Judges and Money

October 29, 2010
The New York Times

This fall’s round of state judicial elections is setting records of the wrong kind. Extravagant spending by interest groups out to influence judicial decisions and snarling television and radio attack ads have long become routine. This year, the virus has spread to retention elections, in which states ask for a yes-or-no vote on whether to grant sitting justices another term.

This is especially troubling because retention ballots were supposed to limit politicization by sparing sitting judges from having to compete in regular multicandidate contests.

The retention campaign of Justice Thomas Kilbride of the Illinois Supreme Court (the chief justice as of this week) is a depressing standout. More than $3.1 million has been raised — $2.5 million by the judge’s supporters, and $650,000 by his opponents.

The bulk of the pro-Kilbride war chest comes from plaintiffs’ lawyers, unions and other interests channeling money through the Illinois Democratic Party, which has an obvious stake in how the state’s top court comes down in future legal battles over redistricting.

Chief Justice Kilbride drew the ire of big business and insurance interests this year after he voted, with the majority, to overturn a state law that capped damage awards in medical malpractice cases. A political action committee trying to oust him has gotten $150,000 from the United States Chamber of Commerce, $180,000 from a group closely aligned with the National Association of Manufacturers and nearly $90,000 from the American Tort Reform Association.

His opponents’ ads are particularly noxious. Rather than focusing on the comparatively dry issue of whether the Legislature or juries and judges should decide negligence awards, they use his procedural rulings in other cases to portray him — unfairly — as soft on crime. In the ads, actors playing violent felons describe their atrocious crimes in detail and then say the justice “sided with us over law enforcement or victims.”

Chief Justice Kilbride is an able jurist, and Illinois voters should retain him. But the huge amounts of money in this campaign and others around the country are doing huge damage to the courts’ reputation for impartiality — and underscores the urgent need for basic reforms. States that hold judicial elections must adopt public financing as well as strict rules that bar judges from sitting on cases involving major financial supporters.

Judges and Money, NYT, 29.10.2010, http://www.nytimes.com/2010/10/30/opinion/30sat2.html

Fair Courts in the Cross-Fire

September 28, 2010
The New York Times

Holding elections to fill important state judgeships is one of those ideas that may sound good in theory but works terribly in practice. As spending in state judicial races by special interests has vastly escalated in recent years, so has the threat to public confidence in judicial neutrality that is fundamental to the justice system.

Now the lavish spending by interest groups and the politicization of state court judgeships is spreading from races between two or more judicial candidates to the “retention” ballots that were supposed to shield judges from the rough-and-tumble of the election cycle.

More than two dozen states are having active judicial elections this fall. A total of 18 seats are being contested in multicandidate races in 11 states, while 37 sitting state justices are seeking voter approval in up-or-down “retention” elections in 15 states.

Between 2000 and 2009, state supreme court candidates collected more than $206 million in donations, more than doubling the record of the previous decade. States that previously have been home to some of the most expensive and raucous judicial races — Michigan, Alabama, Ohio and Texas — will again have competitive contests this fall.

The stage seems set for record-shattering spending wars, dominated by interest groups bent on influencing judicial decisions and by mud-slinging attack ads that were once limited to contested campaigns for executive or legislative offices. In Michigan, where two seats on the closely divided court are being contested, spending could top $10 million, according to some reform groups.

The exact impact of January’s ruling by the United States Supreme Court allowing free corporate and union spending in political campaigns, including judicial races, will not be known for some time. But the notorious ruling seems destined to further drive up independent expenditures on behalf of judicial candidates and exacerbate conflicts of interest on the bench.

Perhaps the most troubling new development concerns the so-called retention elections. To try to insulate judges from electoral pressures, some states ask voters to cast yes-or-no ballots on whether to grant them another term, in lieu of having judges face opposing candidates in regular multicandidate contests.

The idea is to give voters a say in choosing judges while making the election as apolitical as possible. To date, with a few noteworthy exceptions, retention elections have tended to be less bitter and partisan than contests where two candidates compete. That is changing.

In Iowa, three Supreme Court justices on the November ballot are the targets of a well-financed campaign by right-wing interests for voting in a case to allow same-sex marriage. The aim is to send a chilling message to judges beyond Iowa’s borders to beware of rendering opinions that some voter blocs might dislike.

In Kansas, anti-abortion activists are trying to defeat a sitting justice. In Illinois, business interests are campaigning to defeat the chief justice following a case that removed a cap on malpractice liability. And in Colorado, a conservative outfit called Clear the Bench Colorado is citing several decisions to try to rile up voters to oust the full slate of justices up for retention there. The group’s efforts may be impeded by a new court ruling that requires the group to register as a campaign committee and abide by certain limits on spending.

In all, the money spent on retention elections this year could surpass the total for the entire previous decade, said Adam Skaggs, a lawyer with the Brennan Center for Justice at the New York University Law School.

The nation’s system of justice depends on having judges who are fair-minded, independent and unafraid to make unpopular decisions. The onslaught coming this fall will not help.

Fair Courts in the Cross-Fire, NYT, 28.9.2010, http://www.nytimes.com/2010/09/29/opinion/29wed1.html

Missouri Tells Judges Cost of Sentences

September 18, 2010
The New York Times
By MONICA DAVEY

ST. LOUIS — When judges here sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.

For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.

Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.

The practice has touched off a sharp debate. It has been lauded nationally by a disparate group of defense lawyers and fiscal conservatives, who consider it an overdue tool that will force judges to ponder alternatives to prison more seriously.

But critics — prosecutors especially — dismiss the idea as unseemly. They say that the cost of punishment is an irrelevant consideration when deciding a criminal’s fate and that there is a risk of overlooking the larger social costs of crime.

“Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the prosecuting attorney for St. Louis County.

The intent behind the cost estimates, he said, is transparent: to pressure judges, in the face of big bills, into sending fewer people to prison.

“There is no average case,” Mr. McCulloch said. “Every case is an individual case, and every victim has the right to have each case viewed individually, and every defendant has that right.”

Supporters, however, say judges would never focus exclusively on the cost of a sentence or turn their responsibilities of judgment into a numerical equation.

“This is one of a thousand things we look at — about the tip of a dog’s tail, it’s such a small thing,” said Judge Gary Oxenhandler, presiding judge in the 13th Judicial Circuit Court and a member of the sentencing commission. “But it is almost foolish not to look at it. We live in a what’s-it-going-to-cost? society now.”

The shift here comes at a dire time for criminal justice budgets around the country, as states try to navigate conflicting, politically charged demands: to keep people safe and also cut costs. Michigan has closed prisons. Arizona considered putting its prison system under private control. California has searched for ways to shrink its incarcerated population.

Legal scholars predict that policies similar to the one in Missouri — which, unlike some other measures, might encourage cutting costs before inmates are already in prison — may soon emerge elsewhere.

Months ago, members of the Missouri Sentencing Advisory Commission, a group of lawyers, judges and others established by state lawmakers years ago, voted to begin providing judges with cost information on individual cases.

Judge Michael A. Wolff of the State Supreme Court, chairman of the sentencing commission, said judges had been asking for such data. By last month, Judge Wolff said, the computer algorithm was up and running, and the commission made note of it to the legal community in its August newsletter, “Smart Sentencing.”

The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.

Judge Wolff said that some judges might never look at the price tags (though they are available to anyone, and some defense lawyers have begun mentioning them) and that judges ultimately did whatever they wished (within statutory limits) on sentences. Missouri’s sentencing commission makes recommendations only. And as Judge Wolff sees it, sentencing costs would never be a consideration in the most violent cases, just in circumstances where prison is not the only obvious answer.

“This is just more information,” Judge Wolff said.

Fewer than half the states have sentencing commissions like Missouri’s. In many cases, the commissions grew out of concerns, starting in the late 1970s, about racial and geographic disparities in sentences.

Now, however, the groups find themselves also weighing fiscal issues, like everyone else. Consider the theme of a meeting of the national association of sentencing commissions in August: “Sound Sentencing Policy: Balancing Justice and Dollars.”

Leaders of several commissions in other states said they had yet to consider a plan like Missouri’s. Some voiced concern about the ramifications, the methodology — even the price tag of calculating sentencing price tags.

Lots of states measure the costs of imprisonment and of new criminal laws, but on a generic scale. Many states, for instance, calculate the average cost of housing a prisoner, but that is rarely mentioned with down-to-the-dollar figures for a specific person as a judge picks a sentence.

To some, the concept sounds crass, and carries the prospect of unwanted consequences. Might a decision between life in prison and a death sentence be decided some day by price comparison? (Absolutely not, Missouri officials say, and besides, the computer model does not attempt to compute the cost of capital punishment.) Could the costs of various sentences become so widely known as to affect the decisions of jurors?

Numerous legal experts on sentencing issues said Missouri’s new policy made sense. Economic considerations play roles in all sorts of legal decisions, Rachel E. Barkow, a law professor at New York University, said, so why not let judges understand the cost of their choices?

Douglas A. Berman, a law professor at The Ohio State University, said: “One of the flaws in the operation of our criminal justice system is not only the failure to be attentive to cost but an arrogance that somehow you can never put a price on justice. Long missing has been a sober realization that even if we get significant benefits from incarceration, that comes at a significant cost.”

Others, like Paul Cassell, a law professor at the University of Utah, argue that Missouri’s plan counts certain costs but fails to measure others — the societal price, for instance, if someone not incarcerated commits another crime.

“No one can put a price tag on being a victim,” said Scott Burns, executive director of the National District Attorneys Association.

Still, money worries loom. This year, in an annual address, even the chief justice of Missouri’s Supreme Court, William Ray Price Jr., warned that the system would be threatened if budget cuts persisted.

“Perhaps the biggest waste of resources in all of state government is the over-incarceration of nonviolent offenders and our mishandling of drug and alcohol offenders,” he said.

Mr. McCulloch, the prosecutor, said the state’s prisons were filled with anything but harmless people. “You show me the college kid with a perfect record and a dime bag of weed who has been sent to prison, and I’ll get him out,” he said. “Find me him.”

When Missouri lawmakers meet next year, Mr. McCulloch says that he expects he and others may push to abolish the sentencing commission.

Emma Graves Fitzsimmons contributed reporting from Chicago.

Missouri Tells Judges Cost of Sentences, NYT, 18.9.2010, http://www.nytimes.com/2010/09/19/us/19judges.html

First Death for Washington Assisted-Suicide Law

May 23, 2009
The New York Times
By WILLIAM YARDLEY

SEATTLE — A woman with pancreatic cancer has become the first person to die under a law passed last year allowing doctor-assisted suicide in Washington, according to an advocacy group that pushed for the law.

The woman, Linda Fleming, 66, of Sequim, Wash., died Thursday evening after taking lethal medication prescribed by a doctor under the law, according to a news release by the group, Compassion and Choices of Washington. The release said Ms. Fleming received a diagnosis of Stage 4 pancreatic cancer a month ago, and “she was told she was actively dying.”

Ms. Fleming was quoted in the release as saying: “I am a very spiritual person, and it was very important to me to be conscious, clear-minded and alert at the time of my death. The powerful pain medications were making it difficult to maintain the state of mind I wanted to have at my death.”

In November, voters approved the Death with Dignity Act, 58 percent to 42 percent, making Washington the second state — after Oregon — to allow assisted suicide. The laws in both states have been deeply controversial, particularly among religious groups. Washington passed its law after the United States Supreme Court in 2006 rejected an effort by the Justice Department to block Oregon’s law, which took effect in 1998.

In Montana, a state judge ruled in December that doctor-assisted suicide was legal under the state’s Constitution, but the state is appealing that decision.

Steve Hopcraft, a spokesman for Compassion and Choices, said the group was “not leading a campaign in any other state right now.”

The Washington and Oregon laws allow terminally ill patients who are at least 18 and have been found mentally competent to self-administer lethal drugs under the prescription of a doctor.

In Oregon, 401 people used the law through 2008. Since the law took effect in Washington in March, six prescriptions for lethal medication have been dispensed, but a spokesman for the State Department of Health, Donn Moyer, said it had not received any forms saying a patient had used the medication. Under the law, doctors who write such a prescription have 30 days to report that it had been used.

Mr. Moyer, saying privacy laws prevented the state from providing information about a specific death, said he could not confirm Ms. Fleming’s death.

In Oregon, not everyone who received a prescription has taken the drugs.

Some critics fear that physician-assisted suicide will pressure people with terminal illnesses who have low incomes or are disabled to end their lives to avoid becoming a financial burden to loved ones. Supporters cite studies that they say have refuted that idea.

Ms. Fleming, who was divorced, filed for bankruptcy in 2007 with $5,800 in credit card debt, according to court records and a lawyer who had represented her, Hugh Haffner.

Mr. Haffner said that when she filed for bankruptcy, Ms. Fleming, a former social worker, had been unable to work because of a disability and lived in subsidized housing on $643 in monthly disability checks.

Virginia Peterhansen, who said she had befriended Ms. Fleming about six months ago through a book group, said Ms. Fleming bought a 1982 Oldsmobile station wagon days before she was told she had cancer and that she had hoped to learn to contra dance.

Robb Miller, the executive director of Compassion and Choices of Washington, said that he had spoken to Ms. Fleming and that, although he was unaware of her bankruptcy filing, her situation presented “none of the red flags” that might have given his group pause in supporting her. He said Ms. Fleming’s two children and her former husband “were involved and supported her choice.”

The family could not be reached for comment.

Alain Delaquérière contributed research.

First Death for Washington Assisted-Suicide Law, NYT, 23.5.2009, http://www.nytimes.com/2009/05/23/us/23suicide.html

Editorial

The Next Attorney General

December 3, 2008
The New York Times

If he is confirmed by the Senate as attorney general, Eric Holder, President-elect Barack Obama’s choice for the job, will inherit a Justice Department that has been mired in scandal and that has seriously lost its way in critical areas. Under President Bush, the department has been used to defend the indefensible, like indefinite detention and torture of prisoners, and to undermine rather than protect Americans’ cherished rights. Mr. Holder could be an exemplary choice to face this daunting agenda, but he must answer serious questions before the Senate votes on his confirmation.

Mr. Holder, who would be the first African-American attorney general, has a particularly good record of public service for this job. He has been a United States attorney for the District of Columbia, a prosecutor in the Justice Department’s public integrity section and a deputy attorney general under President Bill Clinton.

He has been outspoken on the most critical issue facing the department: restoring the rule of law. In a speech in June, he described the Bush administration’s anti-terrorism policies as “excessive and unlawful.” And he has called for closing the prison in Guantánamo Bay, Cuba.

But senators should ask Mr. Holder to square those views with comments he made after the Sept. 11 attacks when he defended the Bush administration’s prisoner policies by declaring that “you can think of these people as combatants and we are in the middle of a war.”

Americans need to know that Mr. Holder does not believe that detainees can be held indefinitely without being brought before a judge — and that he would stand up for the Constitution when times are tough.

There are other aspects of Mr. Holder’s record that are of concern, starting with his role in Mr. Clinton’s pardon of Marc Rich, a billionaire financier who had fled the country rather than face federal tax-evasion charges whose ex-wife, Denise Rich, had contributed heavily to the Clinton presidential library and the Democratic Party.

The Senate needs to probe that serious lapse in judgment closely to seek assurances that Mr. Holder will be unyielding about keeping political influence out of the Justice Department, which was shamefully politicized under Alberto Gonzales.

In addition to signing off on torture memos and depriving detainees of basic rights, the Bush Justice Department adopted legal positions that greatly expanded executive power. These policies must be quickly undone. The next attorney general also will have to get to the bottom of the department’s disgraceful record of politicized hiring and firing. The attorney general will need to ensure that the investigation of the firings of United States attorneys for what appear to be partisan reasons is thorough and credible, and that witnesses who have been defying subpoenas, including Karl Rove and Harriet Miers, the former White House counsel, testify under oath.

There already are people — mainly Republicans — who say investigating these matters would be divisive. But the department’s integrity cannot be restored until the truth comes out and any wrongdoers are punished.

Many parts of the Justice Department must be pointed in a new direction. In the Bush years, the voting rights section worked against voting rights. The civil rights division too often sat idly by, or supported the wrong side, when rights were infringed. The antitrust division all but abandoned its responsibility to protect the public from the harm of monopoly power.

The attorney general is the nation’s top law enforcement official. The Senate must make sure that Mr. Holder is committed to the right kind of change in that job.

The Next Attorney General, NYT, 3.12.2008, http://www.nytimes.com/2008/12/03/opinion/03wed1.html

American Exception

Rendering Justice, With One Eye on Re-election

May 25, 2008
The New York Times
By ADAM LIPTAK

Last month, Wisconsin voters did something that is routine in the United States but virtually unknown in the rest of the world: They elected a judge.

The vote came after a bitter $5 million campaign in which a small-town trial judge with thin credentials ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist. The challenger unseated the justice with 51 percent of the vote, and will join the court in August.

The election was unusually hard-fought, with caustic advertisements on both sides, many from independent groups.

Contrast that distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a district court, in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.

“It gives you nightmares for years afterwards,” Judge Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive. “You come out of this completely shattered,” Judge Baissus said.

The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.

“If you want judges to be responsive to public opinion, then having elected judges is the way to do that,” said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.

Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.

In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.

Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.

“To the rest of the world,” Hans A. Linde, a justice of the Oregon Supreme Court, since retired, said at a 1988 symposium on judicial selection, “American adherence to judicial elections is as incomprehensible as our rejection of the metric system.”

Sandra Day O’Connor, the former Supreme Court justice, has condemned the practice of electing judges.

“No other nation in the world does that,” she said at a conference on judicial independence at Fordham Law School in April, “because they realize you’re not going to get fair and impartial judges that way.”

The new justice on the Wisconsin Supreme Court is Michael J. Gableman, who has been the only judge on the Burnett County Circuit Court in Siren, Wis., a job he got in 2002 when he was appointed to fill a vacancy by Gov. Scott McCallum, a Republican.

The governor, who received two $1,250 campaign contributions from Mr. Gableman, chose him over the two candidates proposed by his advisory council on judicial selection. Judge Gableman, a graduate of Hamline University School of Law in St. Paul, went on to be elected to the circuit court position in 2003.

The much more rigorous French model, in which aspiring judges are subjected to a battery of tests and years at a special school, has its benefits, said Mitchel Lasser, a law professor at Cornell and the author of “Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy.”

“You have people who actually know what the hell they’re doing,” Professor Lasser said. “They’ve spent years in school taking practical and theoretical courses on how to be a judge. These are professionals.”

“The rest of the world,” he added, “is stunned and amazed at what we do, and vaguely aghast. They think the idea that judges with absolutely no judge-specific educational training are running political campaigns is both insane and characteristically American.”

But some American law professors and political scientists say their counterparts abroad should not be so quick to dismiss judicial elections.

“I’m not uncritical of the American system, and we obviously have excesses in terms of politicization and the campaign finance system,” said Prof. David M. O’Brien, a specialist in judicial politics at the University of Virginia and an editor of “Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World.”

“But these other systems are also problematic,” Professor O’Brien continued. “There’s greater transparency in the American system.” The selection of appointed judges, he said, can be influenced by political considerations and cronyism that are hidden from public view.

A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality.

“A simple explanation for our results,” wrote the paper’s authors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants — adequate rather than great opinions, in greater quantity.”

Herbert M. Kritzer, who was until recently a professor of law and political science at the University of Wisconsin, said judicial elections had deep roots in the state and the nation.

“It’s a remnant of the populist Jacksonian image of public office,” he said. “We’re crazy about elections. The number of different offices we elect is enormous.”

There is reason to think, though, that the idea of popular control of the government associated with President Andrew Jackson is an illusion when it comes to judges. Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements.

“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota. “When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.”

Still, judges often alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that “all judges, even the most punitive, increase their sentences as re-election nears,” resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.

In common law countries, judges are generally appointed by executive branch officials, though lately judicial commissions made up of lawyers and lay people are taking a larger role in the initial selection of candidates. Scotland adopted that method in 2002, and England and Wales in 2006.

Alan Paterson, a Scottish law professor who serves on the Judicial Appointments Board for Scotland, said his country’s system was transparent and worked well, though he acknowledged that the idea behind judicial elections was attractive.

“Part of me likes it,” he said. “It follows from the separation of powers. But in practical terms, it’s very difficult. They have to raise a lot of money.”

“The theory is a nice theory,” he said. “The practice of it is unworkable. We’re not going to do it.”

In some nations, of course, the judiciary is neither independent nor accountable to the public.

“Take a country like Vietnam,” Professor O’Brien said. “Those poor judges are controlled by party officials even at the trial level. That’s even worse than we have in Pennsylvania, Ohio and Texas, where the cost of judicial campaigns has just escalated over the last couple of decades.”

Judge Gableman did not respond to phone messages seeking comment. In answer to a question about his qualifications in an online forum on The Milwaukee Journal Sentinel’s Web site, he acknowledged that he had no appellate court experience but said he had argued a case, concerning zoning, before the state Supreme Court.

In the recent election, Judge Gableman’s campaign ran a television advertisement juxtaposing the images of his opponent, Justice Louis B. Butler Jr., in judicial robes, with a photograph of Ruben Lee Mitchell, who had raped an 11-year-old girl. Both the judge and the rapist are black.

“Butler found a loophole,” the advertisement said. “Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”

Justice Butler had represented Mr. Mitchell as a lawyer 20 years before and had persuaded two appeals courts that his rape trial had been flawed. But the state Supreme Court ruled that the error was harmless, and it did not release the defendant, as the advertisement implied. Instead, Mr. Mitchell served out his full term and only then went on to commit another crime.

In an interview, Justice Butler — a graduate of the University of Wisconsin law school who served for 12 years as a judge in Milwaukee courts — said the past few months had tested his commitment to elections.

“My position historically has been that there is something to be said for the public to be selecting people who are going to be making decisions about their futures,” Justice Butler said.

“But people ought to be looking at judges’ ability to analyze and interpret the law, their legal training, their experience level and, most importantly, their impartiality,” he continued. “They should not be making decisions based on ads filled with lies, deception, falsehood and race-baiting. The system is broken, and that robs the public of their right to be informed.”

Judge Baissus, the French judge, said his nation had once considered electing its judiciary.

“It’s an argument that was largely debated after the French revolution,” he said. “It was thought not to be a good idea. People seeking re-election would not be independent. They are indeed close to the electorate, but sometimes uncomfortably so.”

Rendering Justice, With One Eye on Re-election, NYT, 25.5.2008, http://www.nytimes.com/2008/05/25/us/25exception.html

American Exception

Foreign Courts Wary of U.S. Punitive Damages

March 26, 2008
The New York Times
By ADAM LIPTAK

In the late summer of 1985, Kurt Parrott, a 15-year-old who loved baseball and Pac-Man, was thrown from his motorcycle in Opelika, Ala. The buckle of his helmet failed, and he died when his bare head hit the pavement. Mr. Parrott’s mother sued the Italian company that made the helmet, and an Alabama court awarded her $1 million.

The company refused to pay. And last year, when lawyers for the Parrott family tried to collect in Italy, they were blocked by the Italian Supreme Court.

The court said that a peculiarity of American law — punitive damages — was so offensive to Italian notions of justice that it would not enforce the Alabama judgment.

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators.

Some common-law countries do allow punitive damages, though in limited circumstances and modest amounts. In the United States, by contrast, enormous punitive awards are relatively common, although they are often reduced or eliminated on appeal. Last month, for instance, the United States Supreme Court heard arguments in the Exxon Valdez case, where a jury’s initial award of $5 billion was later reduced to $2.5 billion.

Still, such awards terrify foreign courts.

“The U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages is regarded almost universally outside the U.S. with a high degree of disfavor,” said Gary Born, an American lawyer who works in London.

Foreign lawyers and judges are quick to cite particularly large American awards. Julian Lew, a barrister in London, recalled a Mississippi court’s $400 million punitive award against a Canadian company in 1995 with scorn. “It did bring America into total and utter contempt around the world,” Mr. Lew said.

Yet there are signs that the gap between the United States and the rest of the world is narrowing, as American courts and legislatures start to limit punitive awards and other countries start to experiment with them.

Punitive damages have deep roots in American and English common law, but their nature has changed here over time. “Until well into the 19th century,” Justice John Paul Stevens of the Supreme Court wrote in 2001, “punitive damages frequently operated to compensate for intangible injuries” like pain and suffering or emotional distress.

These days, driven by the structure of the American civil justice system, entrepreneurial plaintiffs’ lawyers and the populism they embrace, punitive damages are used to send messages to large corporations, to fill gaps in regulation and to reward successful plaintiffs with multiples of what they have lost. Distinctive features of the American legal system — civil juries, class actions, contingency fees and the requirement that each side bear its own lawyers’ fees — all play a role in amplifying punitive damages.

Punitive damages are so embedded in the American legal system that the rationale for them is rarely explored. One of the best explanations came from a German Supreme Court decision in 1992, which said the concept had four main purposes: to punish the offender for “uncivilized conduct,” to deter the offender and others from doing similar things, to reward the plaintiff for enforcing the law and so improve “general law and order,” and to supplement inadequate compensatory damages.

The case decided by the German court, like the one involving Kurt Parrott, was an effort to enforce a judgment from an American court against a defendant who had no assets in this country and refused to pay. Ordinarily, it is a relatively routine matter to ask a foreign court to enforce an American court judgment. Not so when punitive damages are involved, even where the conduct in question is shocking.

The German case, for instance, involved sexual abuse. In 1985, a state court in Stockton, Calif., entered a $750,000 judgment, including $400,000 in punitive damages, against Eckhard Schmitz for abusing a 13-year-old boy. Mr. Schmitz would not pay, and he fled to Germany while he was appealing a 13-year criminal sentence for engaging in sex with other teenage boys.

But the German court nonetheless said that the dangers of allowing punitive awards outweighed the benefits. The plaintiff should not get a windfall, the court said, and should not be allowed to act as a “ ‘private public prosecutor’ infringing the German state’s monopoly on punishment with its associated safeguards.”

The German court did enforce the $350,000 compensatory award. The Italian court, by contrast, refused to enforce any of the $1 million award to Kurt Parrott’s mother because the Alabama judge had not said how much of it was for compensation and how much for punishment.

But “the tide may be about to change,” John Y. Gotanda, a law professor at Villanova, wrote last year in The Columbia Journal of Transnational Law. “Traditional hostility to American awards of such damages may be dissipating.”

That is partly a consequence of changes here. American courts and legislatures are experimenting with ways to limit punitive damages, often in response to lobbying and litigation from business groups that say huge punitive awards are arbitrary, unfair and hurt the American economy.

Five states — Louisiana, Massachusetts, Nebraska, New Hampshire and Washington — ban or severely limit punitive damages. Others restrict the amounts awarded. Some states, responding to the criticism that the awards are a windfall for the plaintiffs, require that a part be turned over to the states.

The United States Supreme Court has in the last decade or so started to impose its own limits. In 1996, it ruled that a $2 million punitive award in an Alabama consumer fraud case involving a $4,000 compensatory award was excessive, given that the harm was merely economic, far exceeded the maximum punishment the state could have imposed and was disproportionate to the compensatory award.

In 2003, the court said that the ratio between punitive and compensatory awards must typically be in the single digits to be constitutional. It struck down a $145 million punitive award in an insurance fraud case where the compensatory damages had been $1 million.

At the same time, courts in a few countries around the world are expanding the availability of punitive damages.

The Tribunal Supremo in Spain, for instance, enforced a $1.3 million punitive award in a Texas trademark and unfair competition case in 2001. The Supreme Court of South Australia in 2005 indicated that it would consider enforcing American punitive awards where they involved “brazen and fraudulent conduct.”

Perhaps most notably, the Canadian Supreme Court in 2003 upheld a $50,000 punitive award in a Florida land dispute, saying it “does not violate our principles of morality.”

Justice Louis LeBel explained, with an air of resignation, why this was so, saying there was nothing in the American approach that was inherently offensive to Canadian ideas of basic fairness.

“It is simply a different policy choice,” he wrote, “and it affords U.S. plaintiffs a level of protection of which they ought not necessarily to be deprived just because the defendant’s assets are here.”

Even in Germany, which flatly rejected an American punitive award in 1992, there are signs of change, said Franco Ferrari, a law professor at the University of Verona in Italy. “The traditional compensatory regime has been permeated by punitive elements,” he said.

In cases involving a fake interview with Princess Caroline of Monaco, intellectual property and employment discrimination, he said, German courts have started to award damages that seem to be meant to punish as well as compensate.

Kurt Parrott’s mother, Judy Glebosky, learned about the Italian Supreme Court’s decision from a reporter. Her lawyers had turned the matter over to an international collection agency and had not bothered to tell her that she had lost.

The case seemed simple to her.

“I bought Kurt a helmet that was supposed to be the best,” Ms. Glebosky said. “It did not perform, and I lost Kurt.”

Questions about punitive damages seemed academic to her, if not heartless.

“A million-dollar award is really nothing,” she said. “It’s really not enough to punish any large company in this day and age, and it certainly does not bring back Kurt.”

Foreign Courts Wary of U.S. Punitive Damages, NYT, 26.3.2008, http://www.nytimes.com/2008/03/26/us/26punitive.html

In Guilty Plea,

Actress’s Killer Changes Story to Robbery

February 15, 2008
The New York Times
By ANEMONA HARTOCOLLIS

His original confession had the ring of truth: He was an illegal immigrant working on a renovation job in a Greenwich Village building when the imperious woman upstairs confronted him over construction noise.

They argued. She scratched him. Panicked that she would call the police and that he would be deported, he punched her and pushed her to the floor. Mistakenly thinking he had killed her, he hanged her from the shower rod of her bathroom, in a staged suicide.

But in a courtroom on Thursday, the construction worker, Diego Pillco, 20, told a very different story of how he killed the woman, Adrienne Shelly, a filmmaker, on Nov. 1, 2006. Ms. Shelly, who was 40 and the mother of a 3-year-old daughter, had just finished a film, “Waitress,” which opened to warm reviews after her death.

Mr. Pillco, a short, boyish-looking man, speaking softly through a Spanish translator, told a judge in State Supreme Court in Manhattan that the argument had not been over noise, but over a robbery.

He told the judge that Ms. Shelly had caught him stealing money from her purse after he had slipped into the apartment at 15 Abingdon Square that she used as an office.

When she picked up the phone to call the police, he said, he grabbed it and covered her mouth as she started to scream.

“When she fell to the floor I saw a sheet and decided to choke her, and that’s what happened,” Mr. Pillco said.

The judge, Carol Berkman, prodded him: “And you tied a sheet around her neck and strung her up?”

“Yes,” Mr. Pillco replied, “and I made it look as if she committed suicide on her own.”

It sounded like a straightforward confession to murder, which could have brought Mr. Pillco a sentence of 25 years to life in prison, if he had been convicted by a jury.

Instead, Mr. Pillco pleaded guilty to a lesser charge, first-degree manslaughter, and was promised a fixed sentence of 25 years in a deal negotiated with the Manhattan district attorney.

It was a hard choice dictated by the existence of the first confession, according to an official in the district attorney’s office, who was not authorized to speak on the matter and spoke on the condition of anonymity.

If he had gone to trial, the official said, Mr. Pillco probably would have stuck by his original story, which might have convinced a jury that Ms. Shelly’s death was merely reckless, even though the prosecution would have argued otherwise.

In that case, if convicted he could have received a maximum sentence of 15 years. It appeared that the defense may have feared the opposite outcome, that Mr. Pillco would be convicted of murder and sentenced to life. Mr. Pillco’s lawyer, Thomas Klein, of the Legal Aid Society, declined to comment on his strategy.

Ms. Shelly’s husband, Andy Ostroy, her stepdaughter and other relatives sat quietly in the courtroom during the hearing and declined to comment afterward.

But their grim faces conveyed what the judge said out loud: that their assent had been given reluctantly. “Well, I’m not going to ask whether they’re happy with this,” Justice Berkman said, after the lead prosecutor, Peter Casolaro, assured her that the family had agreed to the plea.

There was little about Mr. Pillco’s first confession that added up, according to prosecutors. He told detectives five days after the killing that Ms. Shelly had confronted him in the apartment where he was working. The floor of that apartment was covered in gypsum dust, the prosecutor said, yet Ms. Shelly’s shoes, socks and the hems of her pants were clean.

Rather, it was Mr. Pillco’s shoeprints, traced in construction dust on the toilet and the rim of the bathtub where Ms. Shelly’s husband found her hanging, that gave him away.

Mr. Pillco, an illegal immigrant from Ecuador, had come to the United States 8 to 10 months before the murder, the official said.

Ms. Shelly, who was born in Queens as Adrienne Levine, had just finished “Waitress,” a film about an unhappily married, pregnant waitress who finds joy in baking pies (and having an affair) that she wrote, directed and appeared in. The film was later shown at the Sundance Film Festival and then went into wider release.

Ms. Shelly was best known for her roles in Hal Hartley’s dark comedies “The Unbelievable Truth” and “Trust.” She also appeared in more than two dozen Off Broadway plays and in television shows.

In court on Thursday, after Justice Berkman asked, “What happened?” Mr. Pillco gave this account.

He had been returning from lunch in the basement of the building when he saw Ms. Shelly in an elevator. “The lady was coming up in the elevator,” he said. “So when I saw her, I decided to rob her.”

He waited on an upstairs landing and watched her go into her apartment. She left the door open, he said, and he slipped in, took her purse, and removed money; he did not say how much.

After describing the fight for the phone and the struggle that ensued, he stopped his recitation. After a conversation with his lawyer, he added one last sentence. Mr. Pillco’s final words to the court were, “I just want to ask forgiveness to her family.”

The judge replied, “I doubt that you will get that, sir.”

In Guilty Plea, Actress’s Killer Changes Story to Robbery, NYT, 15.2.2008, http://www.nytimes.com/2008/02/15/nyregion/15actress.html

Lifers as Teenagers, Now Seeking Second Chance

October 17, 2007
By ADAM LIPTAK
The New York Times

American Exception
Without Parole

This is the first in an occasional series of articles that will examine commonplace aspects of the American justice system that are actually unique in the world.

BIRMINGHAM, Ala. — In December, the United Nations took up a resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers. The vote was 185 to 1, with the United States the lone dissenter.

Indeed, the United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such sentences for crimes they committed at 13 or 14.

Mary Nalls, an 81-year-old retired social worker here, has some thoughts about the matter. Her granddaughter Ashley Jones was 14 when she helped her boyfriend kill her grandfather and aunt — Mrs. Nalls’s husband and daughter — by stabbing and shooting them and then setting them on fire. Ms. Jones also tried to kill her 10-year-old sister.

Mrs. Nalls, who was badly injured in the rampage, showed a visitor to her home a white scar on her forehead, a reminder of the burns that put her into a coma for 30 days. She had also been shot in the shoulder and stabbed in the chest.

“I forgot,” she said later. “They stabbed me in the jaw, too.”

But Mrs. Nalls thinks her granddaughter, now 22, deserves the possibility of a second chance.

“I believe that she should have gotten 15 or 20 years,” Mrs. Nalls said. “If children are under age, sometimes they’re not responsible for what they do.”

The group that plans to release the report on Oct. 17, the Equal Justice Initiative, based in Montgomery, Ala., is one of several human rights organizations that say states should be required to review sentences of juvenile offenders as the decades go by, looking for cases where parole might be warranted.

But prosecutors and victims’ rights groups say there are crimes so terrible and people so dangerous that only life sentences without the possibility of release are a fit moral and practical response.

“I don’t think every 14-year-old who killed someone deserves life without parole,” said Laura Poston, who prosecuted Ms. Jones. “But Ashley planned to kill four people. I don’t think there is a conscience in Ashley, and I certainly think she is a threat to do something similar.”

Specialists in comparative law acknowledge that there have been occasions when young murderers who would have served life terms in the United States were released from prison in Europe and went on to kill again. But comparing legal systems is difficult, in part because the United States is a more violent society and in part because many other nations imprison relatively few people and often only for repeat violent offenses.

“I know of no systematic studies of comparative recidivism rates,” said James Q. Whitman, who teaches comparative criminal law at Yale. “I believe there are recidivism problems in countries like Germany and France, since those are countries that ordinarily incarcerate only dangerous offenders, but at some point they let them out and bad things can happen.”

The differences in the two approaches, legal experts said, are rooted in politics and culture. The European systems emphasize rehabilitation, while the American one stresses individual responsibility and punishment.

Corrections professionals and criminologists here and abroad tend to agree that violent crime is usually a young person’s activity, suggesting that eventual parole could be considered in most cases. But the American legal system is more responsive to popular concerns about crime and attitudes about punishment, while justice systems abroad tend to be administered by career civil servants rather than elected legislators, prosecutors and judges.

In its sentencing of juveniles, as in many other areas, the legal system in the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States is an island in the sea of international law.

And the very issue of whether American judges should ever take account of foreign law is hotly disputed. At the hearings on their Supreme Court nominations, both John G. Roberts Jr. and Samuel A. Alito Jr. said they thought it a mistake to consider foreign law in constitutional cases.

But the international consensus against life-without-parole sentences for juvenile offenders may nonetheless help Ms. Jones. In about a dozen cases recently filed around the country on behalf of 13- and 14-year-olds sentenced to life in prison, lawyers for the inmates relied on a 2005 Supreme Court decision that banned the execution of people who committed crimes when they were younger than 18.

That decision, Roper v. Simmons, was based in part on international law. Noting that the United States was the only nation in the world to sanction the juvenile death penalty, Justice Anthony M. Kennedy, writing for the majority, said it was appropriate to look to “the laws of other countries and to international authorities as instructive” in interpreting the Eighth Amendment’s prohibition of cruel and unusual punishment.

He added that teenagers were different from older criminals — less mature, more susceptible to peer pressure and more likely to change for the better. Those findings, lawyers for the juvenile lifers say, should apply to their clients, too.

“Thirteen- and 14-year-old children should not be condemned to death in prison because there is always hope for a child,” said Bryan Stevenson, the executive director of the Equal Justice Initiative, which represents Ms. Jones and several other juvenile lifers.

The 2005 death penalty ruling applied to 72 death-row inmates, almost precisely the same number as the 73 prisoners serving life without parole for crimes committed at 13 or 14.

The Supreme Court did not abolish the juvenile death penalty in a single stroke. The 2005 decision followed one in 1988 that held the death penalty unconstitutional for those who had committed crimes under 16.

The new lawsuits, filed in Alabama, California, Florida, Missouri, North Carolina and Wisconsin, seek to follow a similar progression.

“We’re not demanding that all these kids be released tomorrow,” Mr. Stevenson said. “I’m not even prepared to say that all of them will get to the point where they should be released. We’re asking for some review.”

In defending American policy in this area in 2006, the State Department told the United Nations that sentencing is usually a matter of state law. “As a general matter,” the department added, juvenile offenders serving life-without-parole terms “were hardened criminals who had committed gravely serious crimes.”

Human rights groups have disputed that. According to a 2005 report from Human Rights Watch and Amnesty International, 59 percent of the more than 2,200 prisoners serving life without parole for crimes they committed at 17 or younger had never been convicted of a previous crime. And 26 percent were in for felony murder, meaning they participated in a crime that led to a murder but did not themselves kill anyone.

The new report focuses on the youngest offenders, locating 73 juvenile lifers in 19 states who were 13 and 14 when they committed their crimes. Pennsylvania has the most, with 19, and Florida is next, with 15. In those states and Illinois, Nebraska, North Carolina and Washington, 13-year-olds have been sentenced to die in prison.

In most of the cases, the sentences were mandatory, an automatic consequence of a murder conviction after being tried as an adult.

A federal judge here will soon rule on Ms. Jones’s challenge to her sentence. Ms. Poston, who prosecuted her, said Ms. Jones was beyond redemption.

“Between the ages of 2 and 3, you develop a conscience,” Ms. Poston said. “She never got the voice that says, ‘This is bad, Ashley.’ ”

“It was a blood bath in there,” Ms. Poston said of the night of the murders here, in 1999. “Ashley Jones is not the poster child for the argument that life without parole is too long.”

In a telephone interview from the Tutwiler Prison for Women in Wetumpka, Ala., Ms. Jones said she did not recognize the girl who committed her crimes. According to court filings, her mother was a drug addict and her stepfather had sexually molested her. “Everybody I loved, everybody I trusted, I was betrayed by,” Ms. Jones said.

“I’m very remorseful about what happened,” she said. “I should be punished. I don’t feel like I should spend the rest of my life in prison.”

Mrs. Nalls, her grandmother, had been married for 53 years when she and her husband, Deroy Nalls, agreed to take Ashley in. She was “a problem child,” and Mr. Nalls was a tough man who took a dislike to Ashley’s boyfriend, Geramie Hart. Mr. Hart, who was 16 at the time of the murders, is also serving a life term. Mrs. Nalls said he deserved a shot at parole someday as well.

Lifers as Teenagers, Now Seeking Second Chance, NYT, 17.10.2007, http://www.nytimes.com/2007/10/17/us/17teenage.html

TEXAS PENAL CODE > LAW OF PARTIES

PENAL CODE
CHAPTER 7. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER

SUBCHAPTER A. COMPLICITY

Sec. 7.01. PARTIES TO OFFENSES.

(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the offense.
(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.03. DEFENSES EXCLUDED. In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:
(1) that the actor belongs to a class of persons that by definition of the offense is legally incapable of committing the offense in an individual capacity; or
(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER B. CORPORATIONS AND ASSOCIATIONS

Sec. 7.21. DEFINITIONS. In this subchapter:
(1) "Agent" means a director, officer, employee, or other person authorized to act in behalf of a corporation or association.
(2) "High managerial agent" means:
(A) a partner in a partnership;
(B) an officer of a corporation or association;
(C) an agent of a corporation or association who has duties of such responsibility that his conduct reasonably may be assumed to represent the policy of the corporation or association.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.22. CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. (a) If conduct constituting an offense is performed by an agent acting in behalf of a corporation or association and within the scope of his office or employment, the corporation or association is criminally responsible for an offense defined:
(1) in this code where corporations and associations are made subject thereto;
(2) by law other than this code in which a legislative purpose to impose criminal responsibility on corporations or associations plainly appears; or
(3) by law other than this code for which strict liability is imposed, unless a legislative purpose not to impose criminal responsibility on corporations or associations plainly appears.
(b) A corporation or association is criminally responsible for a felony offense only if its commission was authorized, requested, commanded, performed, or recklessly tolerated by:
(1) a majority of the governing board acting in behalf of the corporation or association; or
(2) a high managerial agent acting in behalf of the corporation or association and within the scope of his office or employment.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 4, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.23. CRIMINAL RESPONSIBILITY OF PERSON FOR CONDUCT IN BEHALF OF CORPORATION OR ASSOCIATION. (a) An individual is criminally responsible for conduct that he performs in the name of or in behalf of a corporation or association to the same extent as if the conduct were performed in his own name or behalf.
(b) An agent having primary responsibility for the discharge of a duty to act imposed by law on a corporation or association is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on him.
(c) If an individual is convicted of conduct constituting an offense performed in the name of or on behalf of a corporation or association, he is subject to the sentence authorized by law for an individual convicted of the offense.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.24. DEFENSE TO CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. It is an affirmative defense to prosecution of a corporation or association under Section 7.22(a)(1) or (a)(2) that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 5, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

TEXAS PENAL CODE > LAW OF PARTIES, copie 1.9.2007, http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/word/pe.002.00.000007.00.doc

Editorial

Justice Denied

July 5, 2007
The New York Times

In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.

President Bush created this radical new court with two appointments in quick succession: Mr. Roberts to replace Chief Justice William Rehnquist and Samuel Alito to replace the far less conservative Sandra Day O’Connor.

The Roberts court’s resulting sharp shift to the right began to be strongly felt in this term. It was on display, most prominently, in the school desegregation ruling last week. The Warren court, and even the Rehnquist court of two years ago, would have upheld the integration plans that Seattle and Louisville, Ky., voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down, choosing to see the 14th Amendment’s equal-protection clause — which was adopted for the express purpose of integrating blacks more fully into society — as a tool for protecting white students from integration.

On campaign finance, the court handed a major victory to corporations and wealthy individuals — again by a 5-4 vote — striking down portions of the law that reined in the use of phony issue ads. The ruling will make it easier for corporations and lobbyists to buy the policies they want from Congress.

Corporations also won repeatedly over consumers and small stockholders. The court overturned a jury’s award of $79.5 million in punitive damages against Philip Morris. The Oregon Supreme Court had upheld the award, calling Philip Morris’s 40 years of denying the connection between smoking and cancer “extraordinarily reprehensible.”

In a ruling that will enrich companies at the expense of consumers, the court overturned — again by a 5-4 vote — a 96-year-old rule that manufacturers cannot impose minimum prices on retailers.

The flip side of the court’s boundless solicitude for the powerful was its often contemptuous attitude toward common folks looking for justice. It ruled that an inmate who filed his appeal within the deadline set by a federal judge was out of luck, because the judge had given the wrong date — a shockingly unjust decision that overturned two court precedents on missed deadlines.

When Chief Justice Roberts was nominated, his supporters insisted that he believed in “judicial modesty,” and that he could not be put into a simple ideological box. But Justice Alito and he, who voted together in a remarkable 92 percent of nonunanimous decisions, have charted a thoroughly predictable archconservative approach to the law. Chief Justice Roberts said that he wanted to promote greater consensus, but he is presiding over a court that is deeply riven.

In the term’s major abortion case, the court upheld — again by a 5-4 vote — the federal Partial-Birth Abortion Ban Act, even though the court struck down a nearly identical law in 2000. In the term’s major church-state case, the court ruled 5-4 that taxpayers challenging the Bush administration’s faith-based initiatives lacked standing to sue, again reversing well-established precedents. In a few cases, notably ones challenging the Bush administration’s hands-off approach to global warming and executions of the mentally ill, Justice Anthony Kennedy broke with the conservative bloc. But that did not happen often enough.

It has been decades since the most privileged members of society — corporations, the wealthy, white people who want to attend school with other whites — have had such a successful Supreme Court term. Society’s have-nots were not the only losers. The basic ideals of American justice lost as well.

Justice Denied, NYT, 5.7.2007, http://www.nytimes.com/2007/07/05/opinion/05thu1.html

Court Rejects Interpretation of Immigration Drug Law

December 6, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Dec. 5 — The Supreme Court rejected the government’s interpretation of immigration law on Tuesday, ruling that a noncitizen is not subject to mandatory deportation for a drug crime that, while a felony in the state where the crime was prosecuted, is only a misdemeanor under federal law.

The 8-to-1 decision restored to one category of immigrants, caught in the nearly impenetrable maze where immigration law and criminal law meet, the ability to avoid automatic deportation and the other dire consequences of being guilty of an “aggravated felony.”

The category is made up of immigrants convicted of simple drug possession in states that treat those offenses as felonies. Federal law treats possession in most instances as a misdemeanor. But in the government’s view, possession when deemed a felony under state law became a “drug trafficking crime,” which under federal immigration law is an “aggravated felony” that strips an immigrant of the right to seek relief from automatic deportation, to seek asylum, or ever to return legally to the United States.

Writing for the majority on Tuesday, Justice David H. Souter said the government’s interpretation was based on a strained and implausible reading of the definition of “drug trafficking crime” in the federal criminal code.

Thousands of immigrants every year might benefit from the ruling, according to Jayashri Srikantiah, a law professor who heads the Immigrants’ Rights Clinic at Stanford Law School and who filed a brief on behalf of Jose Antonio Lopez, the immigrant whose Supreme Court appeal led to the decision, Lopez v. Gonzales, No. 05-547.

In an interview, Ms. Srikantiah said the decision was informed by “a sense of proportionality” and of the “real world consequences” of subjecting legal residents convicted of minor offenses to automatic deportation.

The Immigration and Nationality Act contains a list of aggravated felonies that includes “a drug trafficking crime.” This phrase, in turn, is defined not in the immigration law, but in the criminal code as “any felony punishable under the Controlled Substances Act,” the basic federal narcotics law.

The government’s position was that “any felony” meant any crime that was considered a felony either under federal law or in the state where the prosecution took place. In this way, a conviction for simple possession could become a drug trafficking offense and hence an aggravated felony, which is what happened to Mr. Lopez.

A Mexican who was a permanent legal resident of the United States, Mr. Lopez pleaded guilty in a South Dakota state court to aiding and abetting another person’s possession of cocaine. That crime is a felony in South Dakota, although the analogous offense is a misdemeanor under federal law.

Mr. Lopez served 15 months in state prison and was then placed in federal deportation proceedings as an aggravated felon. After unsuccessfully contesting the designation before the immigration service and the United States Court of Appeals for the Eighth Circuit, in St. Louis, he was deported to Mexico.

The Supreme Court’s decision makes Mr. Lopez eligible to apply for the administrative relief from deportation known as “cancellation of removal,” an option that was foreclosed by his designation as an aggravated felon.

In analyzing the government’s position that any offense “punishable” under the Controlled Substances Act therefore became a “drug trafficking” felony, Justice Souter said that “there are a few things wrong with this argument, the first being its incoherence.” While “trafficking” ordinarily meant “some sort of commercial dealing,” he said, “commerce, however, was no part of Lopez’s South Dakota offense of helping someone else to possess.”

Justice Souter continued that while the government’s argument appeared implausible, that was “not to deny that the government might still be right; Humpty Dumpty used a word to mean ‘just what he chose it to mean — neither more nor less,’ and legislatures, too, are free to be unorthodox.”

But in this instance, he said, if Congress meant to define drug trafficking in such an “unexpected” way, “Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.”

Justice Souter said that under the government’s interpretation, a central part of federal immigration law, deportation, would depend not on a federal judgment about the seriousness of an offense, but on “varying state criminal classifications.” He added, “We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a state chose to punish a given act more heavily.”

The court’s conclusion was that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.”

Justice Clarence Thomas was the lone dissenter, observing in his opinion that “without doubt, Congress could have written the definition with this limitation, but it did not.”

This was not the first time the Supreme Court has resisted a categorical interpretation of immigration law by the executive branch. In a unanimous opinion two years ago, the court ruled that contrary to the government’s view, driving under the influence of alcohol was not a “crime of violence” for which an immigrant could be subjected to automatic deportation.

Court Rejects Interpretation of Immigration Drug Law, NYT, 6.12.2006, http://www.nytimes.com/2006/12/06/washington/06scotus.html

Op-Ed Contributor

The G.O.P.’s Bad Bet

October 19, 2006
The New York Times
By CHARLES MURRAY

Las Vegas

LAST week President Bush signed a law that will try to impede online gambling by prohibiting American banks from transferring money to gambling sites. Most Americans probably didn’t notice or care, but it may do significant political damage to the Republicans this fall and long-term damage to Americans’ respect for the law.

So, a month before a major election, the Republicans have allied themselves with a scattering of voters who are upset by online gambling and have outraged the millions who love it. Furthermore, judging from many hours of online chat with Internet poker players, I am willing to bet (if you’ll pardon the expression) that the outraged millions are disproportionately electricians, insurance agents, police officers, mid-level managers, truck drivers, small-business owners — that is, disproportionately Republicans and Reagan Democrats.

In the short term, this law all by itself could add a few more Democratic Congressional seats in the fall elections. We are talking about a lot of people (an estimated 23 million Americans gamble online) who are angry enough to vote on the basis of this one issue, and they blame Republicans.

In the long term, something more ominous is at work. If a free society is to work, the vast majority of citizens must reflexively obey the law not because they fear punishment, but because they accept that the rule of law makes society possible. That reflexive law-abidingness is reinforced when the laws are limited to core objectives that enjoy consensus support, even though people may disagree on means.

Thus society is weakened every time a law is passed that large numbers of reasonable, responsible citizens think is stupid. Such laws invite good citizens to choose knowingly to break the law, confident that they are doing nothing morally wrong.

The reaction to Prohibition, the 20th century’s stupidest law, is the archetypal case. But the radical expansion of government throughout the last century has created many more.

For example, all employers are confronted with rules and regulations from Occupational Safety and Health Administration and the Equal Employment Opportunity Commission that they regard with contempt — not because they cut into profits, but because they are, simply, stupid. They impede employers yet provide no collateral social benefit. And so employers treat the stupid regulations as obstructions to be fudged or ignored. When they have to comply, they do not see compliance as the right thing to do, but as placating an agency that will hurt them otherwise.

The same thing applies to lesser degrees to all of us who find ourselves doing things that we know are pointless (think of various aspects of tax law) only because we fear attracting a bureaucracy’s attention. For millions of Americans, our day-to-day relationship with government is increasingly like paying protection to the Mafia — keeping it off our backs while we get on with our lives.

The temptation for good citizens to ignore a stupid law is encouraged when it is unenforceable. In this, the attempt to ban Internet gambling is exemplary. One of the four sites where I play poker has blocked United States customers because of the law, but the other three are functioning as usual and are confident that they can continue to do so. They are not in America, and it is absurdly easy to devise ways of transferring money from American bank accounts to institutions abroad and thence to gambling sites.

And so the federal government once again has acted in a way that will fail to achieve its objective while alienating large numbers of citizens who see themselves as having done nothing wrong. The libertarian part of me is heartened by this, hoping that a new political coalition will start to return government to its proper functions. But the civic-minded part of me is apprehensive. Reflexive loyalty to the rule of law is an indispensable cultural asset. The more honest citizens who take for granted that they are breaking the law, the more their loyalty to the law, and to the government that creates it, is eroded.

Charles Murray is a scholar at the American Enterprise Institute.

The G.O.P.’s Bad Bet, NYT, 19.10.2006, http://www.nytimes.com/2006/10/19/opinion/19murray.html

The Nation: O. J. Simpson and Susan Smith;

Two Crimes, Two Punishments

January 22, 1995
The New York Times
By RICK BRAGG

ATLANTA— ON different sides of the country, in different worlds of power and influence, Susan V. Smith and O. J. Simpson are accused of murder by unspeakable means. The difference is in the price the criminal-justice system will exact if they are convicted, in a nation where the application of the death penalty is inconsistent.

In Union, S.C., prosecutors say Mrs. Smith, 23, a woman once unknown outside the little mill town where she was born, drowned her two young sons in a dark lake and lied to the outside world for nine days in October, claiming a young black man stole her babies as she stood screaming at the side of the road. She made about $17,000 a year, worked as a secretary in a textile mill and drove a Mazda. Prosecutors want her to die in the electric chair.

In Los Angeles, prosecutors say the famous Mr. Simpson, who once ran untouched through N.F.L. defenses and television rent-a-car commercials, stalked and viciously cut and stabbed to death his former wife and her companion. He had assets of about $10 million, in mansions, beachfront condos and Ferraris. Mr. Simpson, whose trial begins tomorrow, does not face California's death penalty.

At first glance, or sniff, it smells. Why is a rich and famous person spared the ultimate penalty, yet it looms over a relatively poor, obscure one?

Somewhat surprisingly, respected legal experts on either side of the capital punishment debate say that while money is often an issue, it was not the driving influence in the prosecutorial decisions in how to proceed against Mr. Simpson and Ms. Smith.

The 'Mirror Theory'

This time, they say, the key factor is what prosecutors see in the faces of their communities, what law professors and lawyers call "the mirror theory."

"The life-and-death decision is made on trivial grounds, and tends to reflect the community's prejudices," said Franklin Zimring, director of the Earl Warren Legal Institute at the University of California at Berkeley.

In the past, the mirror has borne a predictable image. People on death row are still disproportionately poor and black. But this time the black defendant is wealthy and famous, and it is the white female defendant who is on trial for her life -- a rare prospect for execution, since only one woman has been put to death since the Supreme Court allowed executions to resume in 1976.

To make a death-penalty case forcefully, prosecutors still have to pursue a strategy not entirely unlike those of race-baiting prosecutors in the past. They have to transform a client from one of "us," a member of the human community, to one of "them," the predators who would destroy it.

That is hard to do with a football hero, and much easier with a mill worker accused of drowning her babies, even if she was an honors student voted "most friendly" in high school, said lawyers who specialize in death penalty cases.

"Simpson is like a member of the family, so much a part of American life," said Stephen Bright, an Atlanta attorney and expert on capital murder trials. "As a result, it is much more like having a friend or family member accused of a crime. Susan Smith is defined publicly only by the crime."

There are other factors, said Mr. Bright, not the least of which is geography. South Carolina, which leads the nation in incarcerations per capita, has a reputation as a law-and-order state. When Mrs. Smith was formally charged, a bloodthirsty crowd outside the courthouse screamed its outrage, saying she should be locked in a car and drowned in the same lake where her children, 3-year-old Michael and 14-month-old Alex, died.

"This is an opportunity for national publicity," said Mr. Bright, "to exploit the death penalty politically."

Even though capital punishment statistically appears to be no real deterrent to crime, and even though it has wrecked county budgets -- some counties have had to raise taxes to finance capital murder trials, which are more expensive that other criminal trials -- the embrace of the death penalty is driven by "the passion of the moment," said Mr. Bright.

The prosecutor, Thomas Pope, said last week he decided to seek the death penalty after hearing the views of hundreds of people, including the family of Mrs. Smith and her estranged husband, David.

Not everyone in Union County clamored for retribution in kind. Sheriff Howard Wells took a political risk when he said it would be better to spare his county the media spotlight and expense, emotional and financial, of a capital trial.

"What the Los Angeles prosecutor did was, on balance, braver than what the South Carolina prosecutor did," said Mr. Zimring.

But politics was also a driving force in the Simpson case. Los Angeles County prosecutors knew that putting a national hero on trial for his life might alienate the public and the jury that is drawn from it. The Los Angeles County Prosecutor, Gil Garcetti, "engaged in damage control," said Mr. Bright, explaining that if Mr. Garcetti had pushed for the death penalty, he might have guaranteed an acquittal.

Choosing not to seek the death penalty against Mr. Simpson, however, was not a departure from the norm in Los Angeles County. His case -- loosely defined as "domestic," involving a defendant with no felony convictions -- did not fit the profile for successfully prosecuted capital crime in California.

The decision was made by a prosecutors' screening committee that looked at all aspects of the case. Some prosecutors also discussed the matter with black leaders in Los Angeles. Mr. Garcetti's office issued a short statement acknowledging the concerns of the community, but said the decision not to seek the death penalty came "independent of those concerns." Mr. Simpson instead faces life in prison if convicted.

The Family of 'Us'

In the South Carolina case, Mrs. Smith said she was distraught over personal problems and close to suicide, and planned to die with her children. Somewhere, somehow, she supposedly changed her mind, but not soon enough to save her children.

But many in Union believe she killed her children because a man she had been dating said he was not ready for "a ready-made family."

It is her attorney's job to humanize her, to bring her back into the family of "us," and in that she has an expert in David Bruck, one of the nation's most respected defense attorneys in capital cases.

"It's very frustrating that I can't tell her story now," said Mr. Bruck, who will wait for the trial. "If I could, the public would take a different view."

Ernest van den Haag, a retired professor of law and public policy at Fordham University, believes in the death penalty and says both crimes are brutal enough to warrant it. But he does not believe Mr. Simpson, because of who he is, was ever in any real danger of getting the death penalty. And he thinks it is a tactical mistake to seek the death penalty in the Smith case, as it would have been in the Simpson case. "Public opinion is against Mrs. Smith now," he said, "but it will shift in her favor."

Mr. van den Haag added that the death penalty, like any form of punishment, is never exact. "It's a lottery," he said.

Photos: O. J. Simpson does not face execution.

(Reuters); Susan V. Smith does. (Associated Press)

    The Nation: O. J. Simpson and Susan Smith; Two Crimes, Two Punishments, NYT, 22.1.1995,
    http://www.nytimes.com/1995/01/22/weekinreview/
    the-nation-o-j-simpson-and-susan-smith-two-crimes-two-punishments.html

Anglonautes > Vocabulary / Encyclopaedia > Law / Justice > U.S. Constitution / Supreme Court

Anglonautes > Vocabulary / Encyclopaedia > Terrorism > USA

Vocabulaire / Encyclopédie > Justice > Royaume-Uni

Vocabulaire / Encyclopédie > Terrorisme

Histoire > Etats-Unis d'Amérique > Supreme Court

Histoire > Etats-Unis d'Amérique > Federal Justice

Histoire > Etats-Unis d'Amérique > Justice > State by State

Histoire > Etats-Unis d'Amérique > Criminalité

Histoire > Etats-Unis d'Amérique > Prisons

Histoire > Etats-Unis d'Amérique > Peine de mort

Histoire > Etats-Unis d'Amérique > Racisme

www.anglonautes.com
Le site "Les anglonautes" forme une base de données protégée par le Code de la propriété intellectuelle (art. L.112-3) - Anglonautes © ®