Brendan Behan once said there is no situation so bad that it cannot be made worse by the arrival of a policeman. Well today there is no war so bloody that it cannot be made bloodier still by the intervention of the ICC. From the luxurious environs of The Hague, cheered on by liberals who get a cheap political thrill from seeing white lawyers stand up to evil Africans, the ICC has today issued an arrest warrant for Colonel Gaddafi, one of his sons and his security chief. This act of international moral posturing, designed to make the ICC look serious and superior, is likely to intensify the stand-off in Libya.
On one level, the issuing of the arrest warrant just seems barmy. These ICC bigwigs seem so removed from the real and messy world of politics and warfare that they seriously imagine it is possible to bring a war to an end by press-releasing a piece of paper saying: “Wanted for crimes against humanity: Muammar Gaddafi.” They seem to have confused the war in Libya with a nightclub brawl in Camberwell, imagining it is possible to resolve the whole miserable shebang by demanding the arrest of a few of the ringleaders. Once upon a time only spotty sixth-formers in turgid classroom discussions about conflict resolution would say things like “Hey, let’s just arrest the evil dude!” Now such political naiveté has been institutionalised in the ICC.
Yet on another level, the ICC’s game of cops and robbers, cowboys and Indians, the Enlightened West against the Dark Continent, can have unpredictable, potentially dangerous repercussions. If earlier instances of ICC interference into African conflicts are anything to by, the impact of the lawyerly intervention into Libya is likely to be twofold. Firstly it will further entrench Gaddafi and his forces, convincing them that it would be better go down with all guns blazing than to end up in The Hague alongside Karadzic and various other hated evil figures. And secondly it will remove the political initiative from the rebel forces in the east of the country, sending them the ultimately debilitating message that they would be better off waiting for outside forces to come and rescue them — in this instance, white, wig-wearing moral crusaders from the ICC — than to realise for themselves the liberation of their country.
Brendan O’Neill, “There is no war so bad that it cannot be made worse by the intervention of the ICC “, The Telegraph, 2011-06-28
June 28, 2011
QotD: Combining stupidity, smugness, and the illusion of legal process
June 20, 2011
Radley Balko dispels a few myths about the justice system
In his new column at the Huffington Post, Radley Balko discusses some common myths in US criminal justice:
Myth 1: You Can’t Be Tried More Than Once For The Same Crime
The Fifth Amendment to the U.S. Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This protection against “double jeopardy” is intended to prevent the government from retrying the same defendant over and over until prosecutors can get a conviction.
But there are some exceptions. First, the protection only comes into play once a jury has convicted or acquitted a defendant. So in trials that end with a hung jury or a mistrial, the prosecution can usually bring the same charges again. One particularly egregious example is Curtis Flowers of Mississippi, who has been tried an incredible six times for the murder of four people in 1996.
Second, the U.S. Supreme Court has ruled that the government can charge a defendant with both a crime and the conspiracy to commit that crime without violating the constitutional prohibition on double jeopardy. This gives the government two opportunities to convict for is essentially the same offense. Conspiracy is often easier to prove than the underlying crime. It also gives prosecutors a way to rope in alleged offenses they can no longer charge separately due to statutes of limitations.
Finally, there is the “separate sovereigns” exception to double jeopardy. This allows a defendant to be tried, convicted and sentenced for the same crime in both state and federal court. The most well-known example of the separate sovereigns exception is when the Los Angeles police officers who beat Rodney King were acquitted in state court, then convicted in federal court of violating King’s civil rights.
June 18, 2011
May 26, 2011
There is no right to privacy, unless you’re a police officer
Jon sent me a link to this post at Reason.com, discussing the odd court decisions which seem to indicate that you have no right to privacy, but that the police do:
Such incidents have led to a national conversation about the propriety of videotaping cops, even as dashboard cameras have become standard in squad cars. There seems to be some tension in the assumption that, as Graber’s lawyer put it, “the officer has a privacy expectation, but the motorist doesn’t.”
That asymmetry has been underscored by recent rulings over global positioning systems. Last year the Virginia Court of Appeals said Fairfax County police did not violate a suspect’s right to privacy when, without a warrant, they surreptitiously put a GPS device on his vehicle to track his movements. Individuals have no expectation of privacy on the public streets, the court ruled — a position also taken by the Ninth Circuit in California.
Yet this past January, Kathy Byron, a member of Virginia’s House of Delegates, introduced legislation that would have forbidden the use of GPS tracking devices for the purpose of following political candidates. People running for public office “are still entitled to some privacy,” she argued.
Even more disturbing is the steady increase in what the police are allowed to do without a warrant or even suspicion of criminal activity:
U.S. border-patrol agents often search the phones and computers of American citizens who cross the border — routinely “accessing email accounts, examining photographs and looking through personal calendars,” according to The Constitution Project, a watchdog group. “In some cases, electronic devices were confiscated for as long as a year.” And in Michigan, the State Police have high-tech forensic devices enabling them to download information from the cell phones of stopped motorists — something they have been doing without a warrant.
[. . .]
Soon Americans might have no right to expect privacy even in the privacy of their own homes. Earlier this month the U.S. Supreme Court ruled 8-1 that police officers may force their way into your domicile without your consent, without a warrant, and without what are usually referred to as “exigent circumstances” — e.g., someone inside the home yelling for help. The case, Kentucky v. King, concerned an incident in which police officers chasing a drug suspect ran into an apartment building, smelled marijuana, heard noises they thought might indicate someone was destroying evidence — and broke down the wrong door. This, said the Supremes, was perfectly fine.
May 22, 2011
The Tory “omnibus crime legislation” overview
Kathryn Blaze Carlson looks at the likely form of the new federal government’s “tough on crime” omnibus bill:
The Conservative government’s omnibus crime legislation, due ‘‘within 100 days,’’ will mark a watershed moment in Canadian legal history, imposing many controversial changes to how police and the courts operate, experts say.
The bill is sweeping in scale and scope: It is expected to usher new mandatory minimum sentences for drug crimes — growing five marijuana plants to sell the drug would automatically bring six months in jail — and for certain sexual offences against children. It will expand police powers online without court orders, reintroduce controversial aspects of the Anti-Terrorism Act that expired in 2007, end house arrest for serious crimes, and impact young offenders and their privacy.
“This bundle of crime legislation represents the most comprehensive agenda for crime reform since the Criminal Code was introduced,” said Steven Skurka, a Toronto-based criminal defence lawyer.
As always, when the government bundles together a lot of bills, there are some good and some bad ideas all headed down the chute at the same time. An especially bad bit is the preventative arrest provision that expired with the original Anti-Terrorism Act, and another one is the one allowing the police to demand internet records from ISPs without a court order (or, one assumes, notice to the people whose internet records are of interest to the police).
May 19, 2011
Nathalie Rothschild: Britain’s debate on rape “is demeaning to women”
There is much sound and fury in Britain this week over some remarks by a Tory cabinet minister in a BBC interview. The leader of the opposition has demanded that he be dismissed from the government for suggesting that there are ‘other categories of rape’. Nathalie Rothschild wrote this article in response to a 2010 review of the rape law.
In 2007, Camilla Cavendish of The Times (London) found that rape allegations had jumped by 40 per cent between 2002 and 2005. While this can partly be put down to improved support for women, which facilitates the process of reporting rape, Cavendish argued that a widening official definition of rape also played a big role. Since the Sexual Offences Act 2003 came into force, the definition of rape has been expanded to include oral sex. But there has also been a profound attitude shift with roots in the second-wave feminist idea that heterosexual sex is an inherently violent and degrading act that women subject themselves to against their better judgement.
More than four out of five rape allegations are made against friends or acquaintances. As alcohol and/or drugs were involved in over half those cases, Cavendish puts this down to ‘the culture of binge drinking’. But this avoids the more complex picture. Today, various rape-awareness activists and state feminists are themselves helping to blur the boundaries between sex and rape, encouraging women to regard themselves as violated, abused and traumatised for having gone to bed with a man without thinking it through in minute detail.
The Sexual Offences Act 2003 declared that consent must be ‘active, not passive’; in rape cases, consent is now taken to mean agreement rather than the absence of a refusal. So if a woman goes along with sex, but doesn’t make it explicitly clear that she is actively consenting to it, it can be deemed to be rape. The government has even moved towards ensuring that no agreement can be taken as consent if it is given under the influence of alcohol. As Cavendish pointed out: ‘In our zeal to protect women, are we going to legislate so that a drunken man is accountable for his deeds, but a drunken woman is not? Why do we encourage women to see themselves as victims?’ Absolving women who engage in sexual liaisons — whether drunk or sober — of responsibility for their actions is not liberating; it’s demeaning.
There is no doubt that forcing someone to have sex is a heinous, violent and degrading act and victims of rape should indeed be treated with dignity and respect. But in the name of protecting women, the government is insisting that rape cases be treated differently from all other crimes, while interfering with the course of justice in a way that undermines defendants’ rights and undercuts the power of juries.
May 18, 2011
Neil Davenport: The cognitive dissonance of “SlutWalk”
It’s possible to feel a bit sorry for Michael Sanguinetti, whose anachronistic, ill-advised, yet well-intended caution to female students at Osgoode Hall in Toronto triggered the SlutWalk phenomenon. By phrasing his advice in such a retrogressive way, he became the poster boy for all that women perceive as being wrong with the criminal justice system’s approach to solving the problem of violence against women.
However, as Neil Davenport points out, the reaction seems to be directed at the legal system and attitudes of thirty years ago, not the system of today:
The legal system, at least officially, now takes any accusation of sexual assault against women very seriously. It’s ironic that SlutWalk is supposedly exposing the ineffectiveness of a legal system at a time of high-profile sexual assault charges made against Wikileaks founder Julian Assange and IMF chief Dominique Strauss-Kahn. More than ever, law enforcers in Britain and the US are likelier to act on an accusation of assault, even if the alleged crime took place years previously.
Faced with such a gap between feminist thinking and how society actually views violence against women, the anger expressed by SlutWalk protestors and cheerleading feminists rings a bit hollow. Although the protestors are aiming to avoid being victimised on the basis of what they wear, their offence taken at one police officer’s comments suggests a willingness to claim the mantle of victimhood for themselves. In this case, women are victims of a patriarchal state that doesn’t take violence against them seriously, even though the evidence suggests that the state is all too keen to monitor and regulate any type of contact between men and women. Feminists used to have many issues on which to express genuine grievance on the unequal treatment of women in society: equal pay and employment rights, abortion rights and so on. But since many of these issues have been resolved, more or less, there seems to be an on-going search for examples of oppression to facilitate the elevation of women to the exalted status of victimhood.
It’s perhaps not helped that the frothy issue of sexual identity is at the heart of the SlutWalk debacle. Some feminists argue that the protestors are feeding into a wider ‘raunch culture’ that is having a debilitating impact on young women. The sexualisation of society, the argument goes, is pressurising more young women to make themselves available to men in order to be accepted. SlutWalk is simply buying into the old madonna/whore duality that was often cited as an example of women’s inferior status in society. Again, though, this ignores how far society’s attitudes towards sex and women have changed. Women’s greater independence in society and the depoliticisation of marriage and the nuclear family have all helped transform attitudes towards women and sex.
May 10, 2011
Superinjunctions
British law is already difficult enough for outsiders to suss out, but the recent use of superinjunctions to prevent even the hint that a story is being legally suppressed makes it even tougher:
The high profile are gagging, the press is losing the ability to speak, and now the Twitterati is vomiting up half-digested rumours. All the signs are that Britain is in the grip of the legal virus known as ‘injunctionitis’.
It makes for an unedifying spectacle. In between news of uprisings in the Middle East, the killing of Osama bin Laden and the marriage of Will’n’Kate, the British press has been running another set of stories about what it is forbidden from reporting. The reason for this is the increasingly problematic use of the injunction, a legal prohibition issued by a judge that prevents a particular story from being published. While these have been issued for a few years now with largely little public knowledge — especially after the use of so-called superinjunctions, which forbid people from mentioning the fact that an injunction exists — over the past year or so, the injunction in all its forms has started to make the news all by itself. Which, you’d be correct in thinking, rather defies the point.
In fact, over the past few weeks, the attempts by certain individuals to gag the press has resulted in an outbreak of calculated press indiscretion. There has been the tale of the unnamed English actor who employed the services of Helen Wood, a prostitute whose previous clients include footballer Wayne Rooney. Of course, given the injunction, Wood couldn’t do a proper bonk-and-blab about the actor, but there was enough detail there for a salacious few pages’ worth. Then there was the unnamed Premier League footballer who had allegedly been having an affair with Big Brother 7 victim/star Imogen Thomas. She has since been frequently pictured looking disconsolate in a series of fetching bikinis.
It’s bad enough when the government uses its powers to suppress public discussion of items of importance to “national security” (with the definition as loose as possible). It’s much worse when the courts are allowing private individuals and corporations to have their own version of court-imposed censorship, as there’s no possibility of it being a “national security” issue.
It has not just been the tabloids making news of the unreportable. There has also been the case of ex-Royal Bank of Scotland boss Fred Goodwin who took out a hyper-injunction, which absurdly forbids anyone from even talking about the subject of the injunction to the lawmakers themselves — namely, parliament. (Although, of course, someone did, hence we know about its existence if not any of the details.) And things became even crazier when a prominent member of the media, BBC journalist Andrew Marr, revealed that he himself had violated his own profession’s freedom by taking out an injunction in 2008 to hush up an infidelity. In fact, as The Times gleefully reported, there are over 30 high-profile injunctions currently in operation involving a whole heap of public figures, from footballers to politicians.
So, in at least one area, we’re back to there literally being two different kinds of law, differentiated by the wealth of the plaintiff.
May 2, 2011
Radley Balko: “He won”
A distressing round-up of the lifetime achievements of the late Osama Bin Laden:
We have also fundamentally altered who we are. A partial, off-the-top-of-my-head list of how we’ve changed since September 11 . . .
- We’ve sent terrorist suspects to “black sites” to be detained without trial and tortured.
- We’ve turned terrorist suspects over to other regimes, knowing that they’d be tortured.
- In those cases when our government later learned it got the wrong guy, federal officials not only refused to apologize or compensate him, they went to court to argue he should be barred from using our courts to seek justice, and that the details of his abduction, torture, and detainment should be kept secret.
- We’ve abducted and imprisoned dozens, perhaps hundreds of men in Guantanamo who turned out to have been innocent. Again, the government felt no obligation to do right by them.
- The government launched a multimillion dollar ad campaign implying that people who smoke marijuana are complicit in the murder of nearly 3,000 of their fellow citizens.
- The government illegally spied and eavesdropped on thousands of American citizens.
- Presidents from both of the two major political parties have claimed the power to detain suspected terrorists and hold them indefinitely without trial, based solely on the president’s designation of them as an “enemy combatant,” essentially making the president prosecutor, judge, and jury. (I’d also argue that the treatment of someone like Bradley Manning wouldn’t have been tolerated before September 11.)
The list, unfortunately goes on.
Yes, bin Laden the man is dead. But he achieved all he set out to achieve, and a hell of a lot more. He forever changed who we are as a country, and for the worse. Mostly because we let him. That isn’t something a special ops team can fix.
April 30, 2011
“When police decide they need to make an arrest, he said, they find a way to make an arrest”
Not the finest day in Albertan justice:
Charges have been dropped against three Alberta men accused of shooting dead a pregnant wild horse and tossing its body down a hillside. For more than a year, the RCMP and the Crown were sure they had the right guys. They even charged the then-12-year-old son of Jason Nixon, one of the accused. But then, just as the trial began, the defence produced an important piece of exculpatory evidence: The horse hadn’t been shot.
The Mounties had assumed it had been. They were operating on a tip from a man named Dave Goertz. Mr. Goertz, as everyone involved in the case knew, was a crackhead and a meth addict. He reported the crime after a local group that defends Alberta’s wild horse population posted a $25,000 reward.
[. . .]
Apparently, the word of a drug addict was enough for the guardians of our justice system to arrest three innocent men and run them all the way to trial, costing them their jobs, a small fortune and untold grief.
[. . .]
The horse had been badly decomposed, apparently, by the time police found it, so determining whether it had been shot wasn’t possible. And yet, lacking critical evidence, the province proceeded with its prosecution for wilfully killing and careless use of a firearm. The three men faced a maximum of five years in prison.
This kind of thing, said defence lawyer Willie deWit, “is what happens in our system a lot of times.” When police decide they need to make an arrest, he said, they find a way to make an arrest. They ignore anything that might exculpate the accused, and seize on anything that feeds their assumptions of guilt.
November 18, 2010
Another fan of Christie Blatchford’s Helpless
Father Raymond J. deSouza points out that the actions of the OPP in Caledonia have ended up hurting peaceful native and non-native Ontarians:
If you are pressed for time, abandon this column now and immediately read the excerpt in these section from Christie Blatchford’s new book, Helpless. In that book, she details how two-tier justice came to Caledonia, Ont., in 2006 — immunity for native Canadians; and neglect, contempt and harassment for the non-native victims of crime. It is a scandalous tale, simply told.
[. . .]
Lest anyone think that Blatchford’s book is an attack on native aspirations, consider who suffers the most when lawlessness is permitted in native communities: the natives who live there. Not enforcing the law in native communities puts out a large welcome mat for organized crime and corruption.
[. . .]
Yet Blatchford’s book is not about native issues. It’s about the failure of the provincial government and the OPP to enforce the laws — even after a judge issued an injunction to end the illegal activity. Moreover, it’s about the OPP’s abuse of power. The most disturbing pages are about Julian Fantino, then OPP commissioner and now Conservative candidate in a federal byelection, who came perilously close to using police force to restrict the liberties of a free citizen with the temerity to protest the OPP’s policy of non-enforcement in Caledonia.
I noted with disgust that the federal Conservatives had not only nominated Julian Fantino for their candidate in the byelection, but were being quite open about protecting him from questions on his conduct of the Caledonia affair. If I’d ever considered voting for a Conservative candidate in the next federal election, that alone would make me reconsider.
November 17, 2010
“My plan is to make you guys look like a bunch of assholes”
More of Christie Blatchford’s Helpless from the National Post series of excerpts:
“We’ve been sitting there pretty much most of the morning looking for ya, just because we wanted to have a couple words with ya.” He added that police had “some concerns today for you and the safety of the community,” and “it’s our belief that if you or anybody else attempts to erect flags or ribbons directly across from Douglas Creek Estates, that it may cause a confrontation, and we can’t let that happen, and we won’t let that happen.
“We will allow you to raise flags and ribbons, just not across from the Douglas Creek Estates. Okay, and anybody that — anybody that attempts to do that, to raise those flags and ribbons in that restricted area, will be arrested for breach of the peace.”
McHale, of course, asked, “So have the natives been arrested for putting up their flags?”
“They have not,” Cowan replied.
“Why?” McHale asked. “You said ‘anyone.’ Your words were ‘Anyone who tries to put up flags will be arrested for breach of the peace.’”
“That’s today I’m talking about,” Cowan replied.
Around and around they went, with McHale pressing his point and Cowan’s only answer for it that, when natives put up their flags, it was “a long time ago.”
“And I’m not here to comment on that,” Cowan said. “I’m just telling you what our plan is today, and that’s what my purpose is.”
“Well,” McHale said, “you know what my plan is.”
“What is your plan?” Cowan asked.
“My plan is to make you guys look like a bunch of assholes,” McHale said, “and you’ve done a great job [of helping achieve that]. The media will be here, and it will be quite clear to all Canadians across this country, because they will see the native flag. The cameras will show the native flag. And you’ll be there, and your officers will be there, saying, ‘If you put up a Canadian flag, we will arrest you.’”
November 8, 2010
We’d love to talk about this First Amendment case, but we’re not allowed to
I sometimes wonder if there was ever any point in the US founding fathers putting that pesky Bill of Rights in place, when it’s so easy for those rights to be circumvented:
Liptak, who has seen part of the secret 10th Circuit order that keeps the amicus brief sealed, says one reason the appeals court gave for its decision is that allowing distribution of the brief would help I.J. and Reason publicly make their case that Reynolds is being persecuted for exercising her First Amendment rights. One of their goals, the Court said, “is clearly to discuss in public amici’s agenda.” Obviously, we can’t have that.
It bears emphasizing that the I.J./Reason brief is based entirely on publicly available information. It does not divulge any confidential grand jury information, protection of which is the rationale for sealing the documents related to Reynolds’ case. The only purpose served by sealing it is to make talking about the case harder.
Discouraging public dissent, of course, is how this case got started. Tanya Treadway, the assistant U.S. attorney who prosecuted Stephen and Linda Schneider, was so irked by Reynolds’ public defenses of the couple that she unsuccessfully sought a gag order telling Reynolds to shut up. Later Treadway initiated a grand jury investigation that resulted in subpoenas demanding documents related to Reynolds’ activism as head if the Pain Relief Network (PRN), including a Wichita billboard defending the Schneiders and a PRN documentary about the conflict between drug control and pain control. Those subpoenas, supposedly aimed at finding evidence of obstruction of justice, are the subject of Reynolds’ First Amendment challenge.
First there were those secret laws in the wake of 9/11, now you’ve got courts ordering information on First Amendment cases to be kept from the public. One fears to ask “what’s next” for fear that they’ll already have an authoritarian answer teed up and ready to go.
October 22, 2010
The gruesome confessions of a murder that never happened
Roger Henry sent a link to this Australian story, which is just plain weird:
It was a macabre crime that horrified Germany: a farmer, battered to death and dismembered by his own family, his body apparently fed to his pigs and dogs.
A killing without a corpse, since all traces had been gobbled up in the farmyard.
Yesterday, thought, nine years after Rudi Rupp disappeared, a Bavarian court opened a retrial of his supposed killers after the discovery of his intact body in the River Danube. The case has sent shockwaves through the German judicial system, which since the Second World War has prided itself on its probity and professionalism.
Mr Rupp, a 52-year-old Bavarian pig farmer, allegedly returned home from the pub one autumn night in 2001 and was hit over the head with a large wooden beam by Mathias Eisenhofer, 17, the lover of Mr Rupp’s daughter Manuela, 16. He was beaten almost to death and taken to the cellar where Manuela noticed that her father’s leg was still twitching. Eisenhofer then hit the farmer’s skull with a sharp-edged hammer. Manuela joined in. Another daughter, Andrea, 15, watched, as did the farmer’s wife Hermine.
Why would they make up such a gruesome story? It doesn’t appear to make any sense. The whole thing is so weird that I’d be tempted to check that it wasn’t an early April news story.
October 7, 2010
Isn’t this a barbaric practice for a free society?
I’m generally fine with our American neighbours, our societies are similar in so many respects, but this whole “Pledge of Allegiance” thing is something that I just don’t get. A country that theoretically prides itself on being the “home of the free” can still put you in jail for failing to recite it on command?
Danny Lampley (who clerked for me in law school), was jailed by Chancery Court Judge Littlejohn in Tupelo for failing to recite the pledge of allegiance in open court today. Danny was one of the local lawyers who represented the plaintiff in the Pontotoc school prayer case years ago, working with the ACLU and People for the American Way.
I’m informed that Danny rose and was respectful, but did not recite the pledge.
Is this just Judge Littlejohn being a prick, or does this sort of thing happen regularly? What penalty would he get for not singing the national anthem?
H/T to Radley Balko for the link.
