13 July 2011

A Round Tuit (62)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Nancy Grace

If I might digress for a moment, I'll mention that some months ago my family opted to discontinue our cable television subscription. Between Apple TV and streaming Netflix, I'd found that nearly all of our entertainment needs could be satisfied without coughing-up a hunski every month to the fine folks at Comcast. Until a couple weeks ago, I was merely satisfied with that choice; there's downside — namely, my limited live sports choices — but it's outweighed by the upside — increased disposable income and fewer hours spent watching drivel, amongst other things.

Since discovering what I'd missed in all the news coverage of the Casey Anthony trial and verdict, however, I've revised my opinion. Going cable-free is an unmitigated good.

Friends, you can rid yourself of the social disease that is Nancy Grace and save money while doing so! I'm living proof!

As distasteful as the furor surrounding the trial and disgraceful the unhinged commentary of lawyers (including Grace) on television was, the discussion in the legal blogosphere demonstrated that sane consideration and discussion of emotional legal topics is indeed possible. Shortly after Anthony was acquitted on all but a few misdemeanor counts, Brian Tannebaum offered some thoughts about the shameful coverage of the trial in the media and reaction to it online:
I don't know what happened to 2-year old Caylee Anthony. Neither do you.


The jury of 12 unanimously rejected that the state proved Casey Anthony killed her daughter.

CNN calls this a "stunning" conclusion. Why?

Because the public knew she was guilty.


For the media now doing the typical questioning of their behavior during the trial, save it. You made your bed, you lost your bet that there would be a death sentence, and questioning yourself is the definition of hypocrisy.

As for the public's "disgust," and whiny disastrous attempts at complete sentences on social media - I can't help you understand the system of American justice. You don't care. You want what you want, damn the Constitution and jury instructions. All I can say about you is that I will argue for your right to act like complete morons and I will argue for a criminal defendant's right to a fair trial, which includes the obligation of the state to prove each and every element of the charge(s) beyond and to the exclusion of a reasonable doubt.

The embarrassment of the Casey Anthony verdict is not the verdict, it's everything surrounding it.
The jury's verdict of "not guilty" didn't affect Elie Mystal's suspicions about her culpability, but he was as disgusted as anyone by the coverage of and reaction to her case:
...I expect lawyers and people with a modicum of legal training to at least be able think about “the justice for Casey Anthony.” Look, the jury found her “not guilty,” but that doesn’t mean I have to believe that she’s “innocent.”

I just fail to see the outrageous miscarriage of justice here. Was the trial unfair or rigged in some way? Was the jury tampered with? Was there some kind of “smoking gun” evidence that prosecutors were not allowed to present in front of the jury? No? Then STFU, please. The lady beat the rap. It happens.


Look, I’m not trying to defend Casey Anthony. I’m not that crazy. I’m just trying to say: “Nothing is f**ked here, dude.”
Amongst those trained attorneys discussing the case anywhere except on television, "nothing is f**ked here, dude" seemed to be the general consensus. As Scott Greenfield put it, "Stercus accidit." He discussed our unease with the jury system when our questions remain unanswered:
Before the verdict, everybody had answers, with the loudest voice being Nancy Grace who seized every opportunity to tell the rest of us how much she knew. After, she was the ugliest person on TV. Truth is, she was always that ugly, but it didn't come into focus until her face contorted in disgust.

One of the hardest things to get used to is reaching an end without having answers. Tolerance for ambiguity, the variety of things it might have been, isn't the norm in a world where everything is explained in the final five minutes of the show. We got a verdict, but we have no answers. Most people can't stand it.


It's never clear what a jury might do. It's even less clear why. Sometimes, there is no reason behind it at all, while other times the reason is abundantly sound. We can't believe the post-verdict interviews, where they explain their rationale after they've had a chance to form one. The dynamic in the jury room defies normal explanations.


The system worked, however. That much I know. When the jury reached a verdict, that's what the system is supposed to do. What that verdict is, on the other hand, isn't dictated by the system itself, but by the vicissitudes of trial. Despite the efforts of all involved, the outcome sometimes comes on its own. And sometimes the right outcome happens. The reasons for it, well, don't really matter. That's why juries don't have to explain themselves and justify their verdict.
Walter Reaves wrote that the Anthony verdict serves as a reminder that the State still has to prove its case (and for this we should be thankful):
The justice system still requires the State to prove it's case beyond a reasonable doubt. Basically that means you shouldn't convict someone because you think they are "probably"guilty. the burden isn't decreased in serious cases, or when a child is involved. No matter how much you want to see "justice" done, that doesn't mean you convict someone on less than sufficient evidence. Far to often jurors give in to the urge to want to hold someone accountable. The most convenient "someone" is the defendant on trial.
For Douglas Berman, Anthony's sentence for several Florida misdemeanors — with nearly all of that time already served — contrasted with and highlighted the failings of the Federal system:
...Anthony faces sentencing on only four Florida misdemeanor counts based on her lies to police during the investigation of her daughter's disappearance. In the federal system, such lies might have been charged as a felony count of obstruction of justice, and then each conviction would carry a five-year maximum prison term. In Florida state court, Anthony is looking at a maximum prison term of four years (a one-year max on all four misdemeanor counts of conviction); were this matter in federal court, she could have been facing up to 20 years total imprisonment based on four lies to authorities.

Most critically, the federal sentencing guidelines would instruct a judge to sentence Anthony based essentially on the crime he believes, based on a preponderance of evidence, she covered up even after a jury has acquitted her of that crime. In other words, it is not only possible, but surprisingly common, for a federal judge to sentence a defendant for a murder that the defendant has been acquitted of!
Patrick Lee reported that for many people, Anthony's case demonstrated another failing of the Federal system — that her conduct was somehow not a violation of a Federal law. In the days after the verdict, more than a million rubes signed-onto an online petition site to fix what isn't wrong:
The petition is the fastest-growing campaign that has ever been hosted on the site and is causing website traffic problems, a spokesman for Change.org told the Law Blog.

It calls for the creation of a new federal statute called “Caylee’s Law” – named after Anthony’s deceased daughter – that would make it a felony for parents not to report the death of a child to law enforcement within an hour of discovering the incident, or within 24 hours in the case of child disappearance.


The proposal stems from details in the Anthony case: Caylee first went missing on June 16, 2008, but her grandmother only notified the police a month later. Trial spectators reacted with anger and disappointment to the jury’s verdict, upset by the prospect that Anthony might soon walk free after spending two and a half years in prison waiting for trial....
Scott Greenfield noted that although the specifics of "Caylee's Law" weren't necessarily predictable, that someone would propose such a law was a near-certainty:
[E]very time a child dies, no matter how bizarre the circumstance, society must prevent it from ever happening again.


This compulsion to avenge a tragedy involving a child by crafting yet another law to deal with a situation already fully covered (as in murder) has produced a basic rule that any law named after a dead child is invariably a bad exercise of legislative fiat. It's not the intended consequences I fear, but the unintended ones. And there are always unintended ones.


This is a huge promotional opportunity for politicians across the country, to grab all those folks feeling disaffected by the verdict and make a run for their hearts, if not their minds.... This isn't about an appeal to reason, but an appeal to emotion.

Are legislators so stupid as to believe that enactment of this misguided law will accomplish anything? Well, no doubt some are. There's no intelligence test required for election to office. But others will know that this is just pandering, and will do so with gusto.
Ilya Somin also made a political calculation:
It seems likely that political ignorance is an important part of the story here. The public sees the high-profile case, and has a knee-jerk desire to “do something about it.” Most voters don’t realize how rare such cases are, and also know very little about the potential downsides of proposals like these. And, because political ignorance is rational, few will take the time and effort to investigate the evidence and deliberate carefully before forming an opinion. For their part, politicians hungry for votes and activists hungry for media attention are more than willing to cater to the public’s demands.

It’s unrealistic to expect rationally ignorant voters to devote significant time and effort to studying proposals like Caylee’s Law.


In the wake of a terrible tragedy, it’s much more emotionally satisfying to call for decisive action to save the next Caylee Anthony than to hold back on the grounds that there may be nothing we can do.
Marco Randazza saw the legislative pandering coming and pleaded for someone to enact "Marco's Law" before it was too late:
Can we please pass “Marco’s Law?” If any legislator proposes a law named after a dead child, the legislator should lose their position, then they should be dragged out into the street, and someone should shove a live cactus up their ass.
No such luck. Within days, "Caylee's Law" had morphed from misguided online petition to misguided proposed legislation in a few states. Radley Balko wrote a tremendously-detailed and thoughtful post outlining the many reasons a law along the lines proposed would be — to put it mildly — a bad idea:
Even as DNA testing continues to exonerate wrongly convicted people, including people who were nearly executed, it's this rare case -- in which a jury recognized that there was no physical evidence linking Anthony to her daughter's murder -- that has America questioning its justice system.


This is a bad way to make public policy. In an interview with CNN, [activist Michelle] Crowder concedes that she didn't consult with a single law enforcement official before coming up with her 24-hour and 1-hour limits. This raises some questions. How did she come up with those cutoffs? Did she consult with any grief counselors to see if there may be innocuous reasons why an innocent person who just witnessed a child's death might not immediately report it, such as shock, passing out, or some other sort of mental breakdown? Did she consult with a forensic pathologist to see if it's even possible to pin down the time of death with the sort of precision you'd need to make Caylee's Law enforceable? Have any of the lawmakers who have proposed or are planning to propose this law actually consulted with anyone with some knowledge of these issues?


While Caylee's Law could quite conceivably ensnare innocent grieving parents, it seems unlikely that it will prevent a single child's death. Consider: Is a father who is depraved enough to kill his own son really going to be dissuaded by a law that says he must notify the authorities of his son's death within an hour of having killed him? He's already committing murder. The law isn't likely to affect a parent who kills a child in a fit of anger or rage, either. By definition, crimes of passion are perpetrated in the heat of the moment, with little consideration of consequences.


In a country of 308 million people, bad things are going to happen. We already have laws against murder, child abuse, and child neglect. When you pass laws that make it easier to imprison people in cases where the state doesn't have enough evidence to prove the crime everyone knows they're actually prosecuting, you undermine the integrity of the justice system. The "flaw" that led to the Casey Anthony verdict is pretty straightforward: The state failed to prove its case. And the government must prove its case, even when all of America is 100 percent certain of the defendant's guilt, because we want to be sure the state will always also have to prove its case when we aren't so certain.
Rick Horowitz considered the public spectacle surrounding the Anthony trial and was reminded of an earlier public spectacle:
The courtroom is about the closest that I think any civilized people should ever come to gladiatorial combat.

There, the “gladiators” share one thing — and, I hope, pretty much only one thing — in common with those of ancient Rome: they are professionally trained.


Our criminal justice system depends — particularly for the right to be called a “justice” system — upon this fundamental principle that neither Truth, nor unarmed prisoners, will be sacrificed to the State’s trained gladiators.

In no other way is our justice system intended to resemble the Colosseum!

Increasingly, however, it appears that Americans are no more concerned with justice and no less bloodthirsty than those who flocked to the amphitheaters of Rome to watch the munera.
Brian Tannebaum deserved the first word on the Anthony trial in this post and he deserves the last as well:
For the lawyers and former judges on TV saying the jury "didn't understand reasonable doubt?" You disgust me.

To all those asking what I think of the verdict? I think a jury of 12 people agreed the state didn't prove the case, and when 12 people can read instructions and evaluate evidence and come to a unanimous decision, I am happy that the Constitution is still a part of our system, no matter how many politicians and self hating lawyers try to tear it down.

I'm sorry a little girl is dead. I have two myself.

But I never want the Constitution and our criminal justice system to take a back seat to those who believe the burden of proof is just a technicality.

New of the World

This past week or two has demonstrated the worst tendencies of the American free press; thankfully, Rupert Murdoch's News of the World was busily demonstrating the worst tendencies of the British free press and distracted a bit from our shame.

Briefly, the background on this long-developing scandal: In 2006-7, a News of the World editor and a private investigator whom he'd hired were convicted after they hacked-into the voicemail of several members of the royal family's staff. News International, the Murdoch company which owns that paper and several others in the UK, claimed that the hacking was the work of those rogue individuals and was neither a common practice elsewhere in the organization nor directed at other targets. Recently, evidence surfaced which indicated that neither representation was true. It's now believed that thousands of people, including victims of terror attacks and family members of soldiers killed in the Iraq War, may have been targeted by News of the World reporters, editors, and investigators. Amongst the voicemail accounts accessed was that of Milly Dowler, the schoolgirl whose disappearance and murder recently resulted in a high-profile trial and conviction; some evidence suggests that messages may have been improperly deleted from her account, creating some concern amongst authorities that their recently-secured conviction might now be subject to challenge.

Amanda Bancroft discussed the developing scandal and suggested that stronger regulation than the current Press Complaints Commission was needed:
Back in the 19th Century, Alexis de Tocqueville suggested that “in every democracy, the people get the government they deserve”. I’m quite sure he was, and is, right. I wonder though, whether we also get the press we deserve.


Some are calling for new law. Some are calling for advertisers to now boycott the News of the World, some are calling for heads on platters, and others are just expressing rage. Some, including the former Deputy Prime Minister, are suggesting that this story is indicative of why Rupert Murdoch shouldn’t own the part of BSkyB which isn’t currently in his control, and Ed Miliband is calling for a public inquiry. Later today there will be an emergency debate in the Commons on the issue.

What I am interested in is why parts of this phone hacking story are still emerging 9 years after the event.


[I]n 2009, so staunch was the PCC in standing by their 2007 investigation, in particular that there was only 8 hacking victims, Baroness Buscombe accused Mark Lewis, the lawyer now representing the Dowler family, of being misleading in his evidence to the Select Committee in saying there were some 6,000 hacking victims. He launched a libel action, which was settled for an undisclosed sum, and led to an apology.


My original pondering was do we get the press we deserve? Given that this story, largely due to the Guardian, is now in the public domain, I believe yes, we undoubtedly do. In our reaction to the criminal activities of one news desk we should not forget that we have a press we can be proud of, who keep a check on the government of the day, any day, when one considers, for example, the Spycatcher affair and more recently, the MP’s expenses investigation. But once we have finished the public inquiries, and once the criminal trials against the proper perpetrators have ended, can we have the regulators we need, please.
David Allen Green wondered that News International's response to the developing scandal was surprisingly inadequate:
For a media organisation who deals with those engaged in reputation management on a daily basis, the reaction of News International was unimpressive. Yesterday's email from [News International executive and former News of the World editor] Rebekah Brooks was barely even literate, with "allegeds" and "allegations" inserted so as to render propositions and sentences almost meaningless. The unfortunate spokesperson put up for interviews on the evening news came across as evasive and hapless.

However, this flat-footedness should not be any surprise.

The tactic of News International at each phase of the scandal is to try and close the matter down by explaining away the available facts. Hence we have had the "lone rogue reporter" theory for the Royal Household hackings; and the dismissive "just media tittle-tattle" excuses for the celebrity hackings. That the hacking have now moved on to ordinary people caught up in events has exposed the limitations of previous narratives.

As it stands, News International clearly cannot decide whether to claim it has all the necessary facts (so that it can say that the problem has been dealt with) or that it has not got the necessary facts (so that it cannot comment on what it does not know).
Late last week, the company decided to shut down the 168-years-old, highly profitable News of the World in an attempt to stop their legal, political, and financial bleeding. Green wrote that: "Whatever the PR and political merits of the decision to close the News of the World, it makes no legal difference whatsoever in respect of the phone-hacking scandal. The applicable criminal and civil legal obligations are owed by News International and the individuals concerned." Kashmir Hill noted that the closure of News of the World represented the latest in a series of businesses given a "death penalty" for their disregard of personal privacy:
There’s a higher threshold for invasion of public figures’ privacy; in the sphere of public opinion, it seems that hacking the voicemail of a 13-year-old girl — a private citizen who became a public only because she went missing — crossed a line, becoming an abuse of journalistic privilege sufficient to demand a sacrifice.


[News of the World's] closing is proof that privacy is not just a buzzword, but important to a business’s survival. The shuttering of News of the World is probably the most visible death of a business based on privacy violations but it’s not the first.
Many observers suggested that the decision to close the paper so dramatically was intended to salvage News Corporation's pending effort to acquire the satellite broadcaster BSkyB. Carl Gardner watched the maneuvering and discussed whether these new revelations endangered the acquisition:
So can the Culture Secretary Jeremy Hunt now block the planned merger of News Corporation and BSkyB?

He has already said he is minded to allow it, subject to certain undertakings relating in particular to the independence of Sky News, undertakings on which he is consulting the public.


In my view it’s not legally defensible now for Hunt to slam the brakes on this process, let alone put it into reverse. Crucially, the legislation governing the procedure – article 5 of the Enterprise Act 2002 (protection of Legitimate Interests) order 2003 – requires him when deciding now whether to refer the matter to the Competition Commission to take account only of the public interest consideration mentioned in the original European Intervention Notice – the plurality of media ownership. Given his previous indication that he was minded to accept undertakings, and given the Ofcom/OFT advice, in my view a court on judicial review would be bound to conclude that a referral now could only be based on new public interest considerations – and would quash the decision to refer.
In that post, Gardner suggested that the previously-stated government position and the company's "undertakings" — its promise to spin-off Sky News as part of the transaction, offered to avoid referral to the UK's Competition Commission — made News Corporation's position a very strong one. When the company unexpectedly withdrew those undertakings, ensuring a referral to the Competition Commission, Gardner wrote that, "This changes everything." He considered what the company — and the government — stood to gain from the move and whether this was an arranged deal between them:
First, in spite of the strength of their legal position, Rupert Murdoch and News Corp must have feared that, the political temperature on this issue being so high, there was a risk that ministers might feel obliged to “find a way” to block the bid, and try to call Murdoch’s legal bluff, or gamble that they might, just, successfully defend a judicial review in these extreme circumstances.


From News Corporation’s point of view, while today’s move puts the bid on the back burner (as many MPs have been demanding) it does not kill it; it leaves open the possibility that News Corp could once persuade the Competition Commission, as it persuaded the OFT and Ofcome, and that the bid could go through one day, when perhaps the heat has subsided. While we’re used to thinking about Rupert Murdoch’s power over government, the truth is government has a great deal of power over him. He might well choose to do them a favour rather than raise the stakes yet higher at this moment of danger for his whole empire.

From ministers’ point of view, the decision comes like a prayer being granted. It gets Jeremy Hunt completely off the immediate legal and political hook. His transparent decision to delay a decision – by relying on the number of responses he had to his last consultation – was not unsustainable in the short term politically, and in the longer term legally. This gives him much more room for manoeuvre.


[I]n my view, one of the inquiries announced last week by the Prime Minister must look into all contact between News Corp and everyone and anyone in government and Parliament last week and this. The public must know if this was yet another stitch-up between News Corp and politicians.
Invariably, whenever a legal controversy commands public and governmental attention as this one has, we can rely on Charon QC's "Without Prejudice" podcasts to get the the heart of the issue; he and guests Carl Gardner and David Allen Green did so this week in a very lively discussion.

I left Charon a voicemail congratulating him on another fine discussion. I didn't bother to leave it on his phone, however; I just called News Corporation directly. Since they're so busy this week, I thought I'd save them the effort of hacking his account.

Odds n Ends Shop

We often discuss the key roles ethics and credibility play in maintaining our profession and, conversely, how failures of ethics and credibility undermine it. George Wallace noted this past week that this is true as well for expert witnesses:
Just today, I noticed a discussion thread in the LinkedIn "Insurance Coverage" Group that gave me pause. An attorney in the Buffalo/Niagara region of New York has started a discussion under this title:
Need ins agent expert to testify at trial in NY Sup Ct Erie Co that standard for agent of direct writer is to obtain requested coverage in reasonable time or inform client of inability to do so.

The attorney essentially says flat out that the object of the search is not an expert to consult or advise generally on a subject, i.e., "standards for agents of direct writers." Rather, as phrased, the attorney announces a search for an expert who will commit in advance to stating a particular opinion, i.e., "the standard for agents of direct writers is [as stated by the attorney]." The standard articulated by the attorney may, in truth, be the applicable standard in New York; the method by which the opinion has been solicited, however, potentially compromises the credibility of any expert who takes the stand to describe it.

Expert witnesses are constantly accused, in depositions and at trial, of being mere "hired guns" whose opinions should be disregarded because they are "bought and paid for." Expert witnesses are always under scrutiny by opposing counsel concerning the manner in which they came to be selected and hired. Framing the search for an expert as has been done in this LinkedIn discussion makes the "hired gun" argument that much easier for opposing counsel to advance, by providing what may be perceived as direct evidence that whichever expert ultimately ventures the relevant opinion should perhaps not to be trusted by the trier of fact.

With an expert witness, credibility is everything. An expert's opinion testimony is only as persuasive and only as valuable the expert's explanation of the reasons for holding that opinion. A jury or a judge needs to be persuaded that the expert's opinions are reliable because the expert genuinely holds those opinions and has come to them by a reasoned and articulable process. The entire structure of expert witness credibility collapses when it can be demonstrated, or at least made to appear, that the expert was retained to parrot opinions dictated by counsel, to be as it were a mere "mouthpiece's mouthpiece."
An entertaining incident made the rounds this past week when a wildlife photographer had his camera misappropriated by a few of the monkeys he was photographing. According to his account, the monkeys took dozens of photos, including several amusing self-portraits, before he recaptured his lost gear. That several of these photos were circulated by his wire service with their own copyright notice prompted several bloggers to wonder how those copyrights might have been acquired. Kevin Underhill wrote:
Since [photographer David] Slater didn't take the pictures, I don't think he can be the "author." And unless he got the monkey's consent in writing, I don't think he has any rights through the author. If this had been a "work for hire," then the employer would own the rights, but this monkey was clearly a freelancer. I suppose non-human primates probably can't own intellectual property, although underage humans can, and that's a pretty fine line as far as I'm concerned. But even if the monkey doesn't have the rights, that doesn't mean Slater or the news agency has them. Maybe all works of monkey art are in the public domain!
Mike Masnick speculated along similar lines, but his experience took an odd turn when the news agency sent him a take-down notice in support of their copyright claims. Masnick described his subsequent exchange with the organization:
After consulting no fewer than four lawyers (I'm nothing if not thorough) on this matter, I decided that the best course of action was just to ask for a clarification, since they did not make clear the actual basis for the request, and point out that it's not at all clear Caters has any legal claim whatsoever. At the same time, assuming they could come back with some legal argument for why the copyright was legit, we decided to make it clear that we believe, strongly, that the use of the images was protected fair use, if they actually are covered by copyright.


Caters was quick to reply, and it appears they have a rather different view on these things:
Michael, regardless of the issue of who does and doesn't own the copyright - it is 100% clear that the copyright owner is not yourself.

You have blatantly 'lifted' these photographs from somewhere - I presume the Daily Mail online. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs.
If I'm reading this correctly -- and I believe that I am -- Caters News Agency is claiming that anyone, copyright holder or not, can issue a takedown on a photo, if they can claim that the person using the image is not the copyright holder either -- regardless of whether "fair use" applies. That's... an interesting interpretation of the law. It's also not a valid interpretation of the law. In fact, in some places, sending a takedown notice, if you are not the copyright holder, is what's actually against the law.


[T]his highlights another case of someone completely misunderstanding the purpose and intent of copyright law, believing that it is universal and that it gives total control to the copyright holder. Caters does not even seem willing to consider that this image might not even have a copyright given its provenance. In fact, under Cater's own definition, it seems just as reasonable for us to ask that it take down the image, given that we do not believe that it has a valid copyright interest in the image either. Not everything gets copyright, and when something is covered by copyright, it does not give the rightsholder full control over every use. It's unfortunate that a company that has built a business around copyright appears not to understand these basic facts.
Touching upon a number of cases, Gideon asked provocatively what sort of justice system we really want and whether "justice" is characteristic of it:
The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.

Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?

Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?


[T]here is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty.


One day they’ll come for you and there’ll be no one left to speak up for you.

What do we want from our system? A rubber stamp, apparently.
While Gideon's lack of faith in us and the system we've created is justified, Radley Balko reminded us this past week that justice is sometimes done — if grudgingly, uncertainly, and unacceptably slowly. The long road Cory Maye's defense team traveled to secure his release from an unjust imprisonment shows that justice can be done, but illustrates how unlikely it's become for many caught-up in our justice system:
Cory Maye, now 30, was convicted in 2004 of shooting and killing Prentiss, Mississippi, police officer Ron Jones, Jr. during a botched drug raid on Maye's home on the day after Christmas in 2001. Maye says he was asleep as the raid began at 12:30 a.m. and had no idea the men breaking into his home were police. The police say they announced themselves. Maye had no prior criminal record, and police found all of a marijuana roach in his apartment, which under other circumstances would garner a $100 fine.

In fact, the man who lived next door to Maye in that bright yellow duplex, Jamie Smith, already had drug charges pending against him and appears to have been the actual target of the police action that night. The police found a significant supply of drugs in Smith's apartment, though Smith has never been tried.


Ask anyone about Maye, and they'll mention that grin. Maye always smiles, even when a smile may not be the most appropriate expression. [Maye attorney Bob] Evans says he was smiling throughout his trial, which probably didn't help him with the jury. He was even smiling when he was sentenced to death.

"So what are you thinking this morning?" I ask. "I imagine there's a lot going through your mind."

"I'm just ready to get home to my family and see my kids," Maye says. "I want to take them fishing. Maybe take them to Sea World or Disneyland."


[W]e chat about food. He wants his first meal outside of prison to be his mother's gumbo, with a side of her banana pudding.

"There's going to be a big party when this is done," Evans says. "You'll get to eat all you want."
It's an inspiring story and well-worth a careful read in its entirety. Balko is modest about his own role in publicizing Maye's case over several years, publicity which enabled Maye to secure the pro bono representation of two members of his legal team and to keep his case in the public consciousness. Maye's story is one in which Balko has played a meaningful role; it's entirely fitting that his hand should write its happy ending.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., The Moderate Voice, Wikimedia.org, and Paris Odds n Ends Thrift Store.

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