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Posts Tagged ‘court’

A fascinating account of how a district attorney was forced to prosecute a case even though he felt the defendant was innocent. Compelled to choose between his conscience and his job, he took an unusual decision. He took the case, but helped the defence win.

(Link via Reason Hit and Run)

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Since the Judge Kozinski story broke three days ago, I have frequently visited The Volokh Conspiracy hoping that Eugene Volokh — an outstanding blogger who I frequently cite —  would post on the issue. My interest was piqued not only because I admire Kozinski — a brilliant judge with a libertarian streak — but because Volokh had once clerked for him. Here is the expected post, at last.

I’ve tried to avoid blogging about the Judge Kozinski story, because I’m so obviously biased on the subject. I clerked for the Judge. The Judge officiated at my wedding. I talk to him often. I consider him a close friend, he’s taught me a huge amount, and he’s helped me tremendously in my career, and not just by giving me a valuable credential. What I say on the matter will naturally and properly be discounted because of my bias. Still, I can’t help myself any longer, so I’ll pass along what I think, and you can give it whatever credit you think is due.

Here is a link to the rest of Volokh’s article, which I recommend. I agree completely with all his points. However, I am a tad disapponted that he places so much emphasis on the fact that the images on the judge’s site were tame. In other words, while I agree with his conclusion, 

We should all leave Kozinski to his own privately expressed sense of humor, as we’d like the world to leave us to ours,

I would have been happier if he had added it didn’t really matter even if that sense of humour was much racier than what it actually is.

It would be a great day for freedom when the obscenity law is finally repealed. The root of the current controversy is that Kozinski was also going to officiate this case.  Of course, because of the controversy, he has now recused himself from it. The defence, I suppose, would have fancied their chances if he had remained the judge — Kozinski has always known to be a staunch defender of free speech. The prosecution must be chortling with glee.

On another note, I really hope that the LA Times, which broke the story, publishes a retraction and offers Kozinski an apology. They have displayed an astonishing lack of journalistic integrity in their coverage of the matter. It has, to put it lightly, been full of misleading errors. For instance, they said that one of the images showed a man ‘cavorting’ with a donkey when it wasn’t even close to that. But if the LA Times did apologize to this supposedly conservative judge, it wouldn’t really be the LA Times any more, would it?

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Remember Karen Fletcher? The woman in the centre of the high-profile obscenity case I wrote about earlier? The reclusive lady who wrote violent sexual stories involving children in an attempt to cope with her own history of child abuse and was subsequently hounded by federal prosecuters? Well, the matter’s come to an end.

She battled the federal government’s allegations for more than a year and a half, but in the end, Karen Fletcher’s mental health will win out over her principles. And First Amendment lawyers will lose a key chance to have a court determine whether text-only material can be considered obscene.

Ms. Fletcher has decided to plead guilty to six counts of distributing obscenity online stemming from fictional stories published on a members-only Web site.

First Amendment lawyers thought an acquittal in the case could have begun a trend — proving that text-only cases do not rise to the level of obscenity standards.

The Donora woman was charged in September 2006 based on her “Red Rose” Web site, where Ms. Fletcher, 56, and others posted fictional stories that depicted the rape and torture of children — including infants.

She and her high-profile First Amendment lawyers claimed that what she’d written was not obscene, and they hoped to prevail before a jury.

In their favor, they thought, was the fact that the federal government has never won a conviction based solely on text under current obscenity law.

But Ms. Fletcher, who has agoraphobia — a fear of public places — is not capable of sitting through what likely would be a weeklong trial, said one of her attorneys, Lawrence Walters.

“With a different client, with somebody who had the strength to fight, there might have been a different outcome,” Mr. Walters said. “While we’d like her to be a standard-bearer on First Amendment issues, this is not the person to endure a trial.

“Even worse, should she be convicted, I don’t know that she’d be able to withstand a jail sentence.”

Under the proposed plea agreement, Ms. Fletcher would avoid prison and be sentenced to a term of home detention.

When I wrote about this matter several months ago, I noted that this case would a key test for the greatest American law of all — the first amendment. I ended that post with the words:

It is possible that Karen Fletcher will not be convicted. If she is, God save us all.

I don’t blame Karen Fletcher for the decision she has taken. A trial is a painful affair and I cannot even imagine how traumatic it may be to some one who suffers from agoraphobia, as Fletcher does. Nevertheless, today feels like an anti-climax. A defeat would have been catastrophic, signalling the slow destruction of something precious and irreplaceable; a victory would have reaffirmed the protection enjoyed by free speech in this country. This, being neither, leaves things in the balance, for another day, another case, another hero.

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Drunk drivers should be punished, no one doubts that. Yet this story, which I found while randomly surfing through some related news is, I think, a sad tale of vengeful justice, and deserves to be repeated.

For 40 years, Phil Cisneros worked as a heavy-equipment operator in the copper mines outside Globe. He was a family man, a big-hearted guy who taught his five kids and a bevy of nephews fishing and woodworking. In time, he administered those same lessons to his 15 grandkids.

He was liked by everyone and life had been good to him till his wife, Lucy, got Alzeimer’s.

It was a difficult time, a time that would drive many men to drink. Cisneros was one of them. He’d never been a teetotaler; prosecutors say he’d been busted for DUI in 1980. But with his wife’s health declining, a one-time problem became a frightening pattern. Cisneros got popped for no fewer than four DUIs from 1989 to 1992, barely getting out of jail for one before he was charged with the next.

Lucy died in 1993. Obviously, Cisneros was devastated. Five years later, in 1998, he got one more DUI.

It is, indeed, a terrible track record. But then something happened. Cisneros stopped drinking and driving — and, for that matter, stopped driving at all, according to his neighbors and family. He met another woman (coincidentally, another Lucy), fell in love, and got married again.

He didn’t even get a parking ticket in the next nine years. His behavior was impeccable. He was happy. After many years of misery and sadness, life seemed to have turned good for him again.

If the ultimate objective of the law is rehabilitation — to turn offenders into good people — Cisneros had already achieved it.

But then, in 2007, he was arrested again and sentenced to three years in prison. No, it wasn’t a new offence.

It turns out he’d never cleaned up that last offense from nine years ago. And neither the prosecutor nor the judge was in the mood to give him a break.

Apparently, in Cisneros’ absence, a jury had sentenced him to eighteen months in prison nine years ago and Cisneros wasn’t even aware of it, till the Border Patrol arrested him when he was returning from a visit to Mexico.

Cisneros’ family — a huge, close-knit group — begged the judge. They said that the old man suffered from a host of health conditions: prostate cancer, diabetes, pulmonary hypertension, sleep apnea, shingles, and shortness of breath. He’d already had double bypass surgery.

And his second wife had cancer.

But the judge wouldn’t relent.

Phil Cisneros was 83 when he was put behind bars last year. As feared, he was repeatedly hospitalized during his prison stay. Then he had a heart attack.

The family petitioned Governor Janet Napolitano for clemency: His death, they said, was imminent. Her board of executive clemency recommended his release, unanimously, on March 4.

Phil Cisneros was finally released on March 7 after a gruelling nine months in prison. On march 9, he was dead.

(The original articles that I used as my source are by Sarah Fenske and appeared in the Phoenix New Times. They contain much more than I have quoted; click here and here)

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