Monday, February 23, 2009

Quacks With Bite: Forensic Fabrications Exposed

While we're waiting for the verdict in United States v. Melton, please pause for a bit and consider another possible criminal violation of the civil rights of Mississippians. A little more than a year ago, Reason magazine's Radley Balko published his devastating expose of pathologist Stephen Hayne and forensic dentist Michael West, who practiced misanthropy as State experts in Mississippi criminal cases.

Then in Spring 2008, the exonerations of Kennedy Brewer and Levon Brooks demonstrated the human cost of false forensic testimony -- two men sent to Parchman's death row for over a decade (although one was resentenced to life due to mental retardation). When they were finally released, District Attorney Ben Creekmore, appointed special prosecutor in the cases, apologized for the wrongful incarceration on behalf of the State.

Now Mr. Balko has dropped another bomb. In the attached article, he posts a video tape of an autopsy at which Dr. West is seen pressing a defendant's dental mold into the face of a young girl's corpse. Dr. Hayne is present. The link is to Balko's story; the video can be found there. DO NOT WATCH THE VIDEO IF YOU ARE LIKELY TO BE UPSET.

Balko reports:

"Reason recently obtained shocking video from another Hayne and West collaboration that may shed light on the question. In 1993, the two conducted an examination on a 23-month-old girl named Haley Oliveaux of West Monroe, Louisiana, who had drowned in her bathtub. The video shows bite marks mysteriously appearing on the toddler's face during the time she was in the custody of Hayne and West. It then shows West repeatedly and methodically pressing and scraping a dental mold of a man's teeth on the dead girl's skin. Forensic scientists who have viewed the footage say the video reveals not only medical malpractice, but criminal evidence tampering."

I used to think I was jaded, but I could never have dreamed that even Drs. Hayne and West would so boldly manufacture false evidence -- and record it on video.

For those of you who may think Mayor Melton should be acquitted because he is fighting the drug trade and "the end justifies the means," this video shows why we have to hold Government accountable to follow the law.

For those of you who think that prisoners who claim to be "framed" are delusional or mendacious, this video will make you re-think that attitude.

And for those of you who are still for the death penalty, remember this: false expert testimony could have sent two innocent men to their death. In our name.

It's time to get damn furious about those who misuse the public trust, and to change the criminal justice system to ensure that the all-too-human tendency to cut corners, assume guilt, and rush to judgment is curtailed and controlled by the rule of law.

Memo to our next United States Attorney: In Illinois, they indicted detectives who manufactured evidence in homicide cases.,0,4080114.story?page=1&track=rss-topicgallery

Sounds like a good idea for Mississippi.

Friday, February 20, 2009

Another Head-Spinner at the End of the Week: the Former Chief Goes Both Ways?

The Jackson Free Press has just reported (via Twitter) something I heard a rumor of last week: that former Chief Justice Jim Smith is now of counsel to Ogden & Associates, the firm owned by Jackson plaintiffs' lawyer Ashley Ogden.

Under Chief Justice Smith's leadership, the Mississippi Supreme Court moved affirmatively (you could say aggressively) to address the need for tort reform in the State Court system. Alex Alston, former President of the Mississippi Bar, took Chief Justice Smith to task for going too far. His op-ed piece (quoted in full by folo here: was widely considered to contribute to the Chief Justice's upset loss to Jim Kitchens in the November elections.

The op-ed showed that the Smith Court had a pattern of reducing or eliminating jury awards in favor of plaintiffs, while rarely if ever reversing a victory for defendants.

Interesting news, then, for now private citizen Smith to link up with the kind of firm he usually cast his vote against while on the Court . . .

Not Rocket Science: the Intent Element in US v. Melton

As I write this, the jury in the case of United States of America v. Frank Melton et al. is in its third day of deliberations. This morning, the Clarion-Ledger ran a front-page analysis of the lengthy deliberations. In that story by Chris Joyner, the oft-quoted legal source Professor Matt Steffey of the Mississippi College School of Law opined that the delay may be due to the complexity of the intent element of the charges against Mayor Frank Melton and Officer Ricio. The Clarion-Ledger story is here:

As Joyner writes:

Even if jurors agree Melton and his former police bodyguard Michael Recio violated the Constitution when they conducted a warrantless raid on a Virden Addition duplex in August 2006, Steffey said the jury has a complicated task in determining whether they did it criminally.
"It requires a complex judgment. There is more than one way to look at the defendants' conduct," he said. "The question of criminal intent is deeply complex."

Professor Steffey is a friend who has provided valuable assistance in several public interest cases I've handled over the years. But this time I think he's off the mark. Title 18, Section 241 of the U.S. Code prohibits:

[T]wo or more persons conspir[ing] to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment or any right or privilege so secured . . . .

I have emphasized the sentence about intent. In the post-Watergate era, the U.S. Court of Appeals for the District of Columbia Circuit discussed what that sentence means. The case was significant: the conviction of former Nixon White House aide John Ehrlichman for conspiring to burglarize the office of Daniel Ellsberg's psychiatrist, after Ellsberg published the "Pentagon Papers."

Listen to Ehrlichman's argument: "Ehrlichman contends that he acted without the requisite “specific intent” to invade Dr. Fielding's Fourth Amendment rights, since he agreed to a search of the doctor's office in the good faith belief that it would involve no violation of the law, constitutional or otherwise."

Sound familiar?? That comes straight from the part of "Frost v. Nixon" where the former President, pressed by David Frost about whether the President can authorize illegal acts, blurts in response, "I'm saying that if the President authorized the act, it's not illegal!"

Here's how the Court of Appeals answered the question.

(t)he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. Here, defendants are alleged to have intended to search Dr. Fielding's office without a warrant, and their mistaken belief that such conduct did not offend the Constitution would not protect them from prosecution.

United States v. Ehrlichman, 546 F.2d 910, 918 (D.C. Cir. 1976).

The years may dull the memory, but as I recall President Nixon and his Administration believed that Ellsberg's publication of the "Pentagon Papers" put the American troops in Vietnam in jeopardy and was therefore treasonous. Unlike Watergate itself, there was certainly a potential argument that the President, as commander-in-chief, did have the power to authorize the break-in of Ellsberg's psychiatrist's office to discredit the source of the leak and thereby cause the Viet Cong and their supporters not to rely on the published Papers. (I'm sure Dick Cheney would have agreed with that analysis).

It's certainly more weighty than the Mayor's stated purpose for demolishing the house on Ridgeway.

But it wasn't enough, said the Court of Appeals.

As applied to today's case, the only question is: was the Mayor's aim "not to enforce local law but to deprive a citizen of a right protected by the Constitution,"

or, put a slightly different way in the Ehrlichman case,

Did the Mayor engage in the "knowing performance of acts which, like the unauthorized entry and search at issue here, are malum in se." (that is, "bad" by definition).

That's NOT a very complex question.

Thursday, February 19, 2009

Leggo My Embryo

Like many of you, I subscribe to Rep. John Mayo's email list. It is often a useful way to keep up with the Mississippi Legislature; also, the good Representative and his wife are movie buffs, and provide a constant stream of reviews of first-run features.

Sunday's email from Rep. Mayo was a head-spinner. Apparently, the Mississippi House of Representatives has passed a bill that authorizes the adoption of frozen human embryos. Yep, you heard that right. The bill, HB 561, is called "The Mississippi Human Embryo Adoption Act" -- you can find it here:

According to the bill, there are over 400,000 frozen embryos in the United States. If passed, HB 561 would provide a process for adopting one of them.

Oh, but not everybody can try. Line 215 of the bill states, "Adoption by couples of the same gender is prohibited."

I suppose the argument is that "adoption by couples of the same gender" is not "natural" or "traditional" -- but then, neither is "human embryo adoption," is it?

Representative Mayo, while supporting the bill, objected to this language. As he said in his email:

I find it repugnant that when we get a chance to make a point on this topic we take the opportunity to demean, either intended or unintended, another person who’s not like us, we go ahead and do it.

I moved to amend and remove the language. “It’s already state law,” most said. “If it is, why do we need to take another opportunity to say it?”, I replied.

I do not know why we take every opportunity to say, “You’re not wanted,” especially when we allow children to live with dope head, miscreant single, straight parent mothers at least until the live-in boyfriend shakes the baby to death because it disturbed him at the wrong time.

That's what I call a down-to-earth argument!

But putting aside the gay adoption issue, it's not at all clear that human embryo adoption is a good thing. The Bush Administration gave seven-figure grants to religious organizations that promoted this practice. But over five years ago, Arthur Caplan, Ph.D., director of the Center for Bioethics at the University of Pennsylvania in Philadelphia, exposed the serious problems with the practice. Dr. Caplan started by explaining the embryo surplus:

The woman takes fertility drugs that cause her to produce far more eggs than the one she normally would release during her monthly cycle. These eggs are then surgically removed from her ovaries and fertilized in a dish with either her husband’s or a donor’s sperm.
Often many embryos are created through this process. But since multiple-pregnancies — quadruplets, quintuplets, septuplets and the like — produce premature and often unhealthy babies, doctors will only put two or three embryos back into the woman’s body to try and help her become pregnant.

The clinic chooses to implant the embryos that look the healthiest and asks the couple if they want to freeze the rest. The couple also has the option of having the remaining embryos destroyed, donated to other couples, or donated for embryonic stem-cell research.

So what's wrong with using the 400,000 unused embryos? Dr. Caplan explains further:

[M]ost frozen embryos are not healthy enough to ever become babies. The chance they will grow to full term is about one in 10 for those frozen less than five years, and even less for those that have been frozen longer.

Moreover, using terms like “adoption” encourages people to believe that frozen embryos are the equivalent of children. But they are not the same. In fact, infertile couples who want children can frequently make embryos but they cannot make embryos that become fetuses or babies. . . . .
The inability to make embryos that become babies is why couples turn to donor eggs or donor sperm.

* * * *

“[E]mbryo adoption” . . . . is a nice way to score points with those who advocate the view that embryos are actual babies and should not be used for research purposes. But it is not the best way to help couples who want to have actual babies.

[The money spent on embryo adoption] would be far better spent matching fertile couples willing to make embryos with infertile couples, rather than trying to get them to use unhealthy frozen ones.

Dr. Caplan concluded that the only explanation for a movement to allow embryo adoption is ideology, not medicine. By allowing adoption of embryos, legislatures cater to the ideology of those opposed to stem-cell research (which is conducted with unwanted embryos). And it affirms a reductio ad absurdum of the anti-abortion definition of a fetus as "human life," which will get them points from the Pro-Life League when re-election time comes. But as Dr. Caplan proves, it will NOT help people who want to become parents.

In that context, it makes sense that HB 561 excludes gay and lesbian Mississippians. While you're sucking up to the fundamentalist Right, you might as well go all the way. So to speak.

House of Hypocrisy, Part Two

Our local conservatives are singing from the same hymnbook as their heroes, the House Republicans. One particularly ugly rant was posted on the blog Jackson Jambalaya, attacking an article written by Ronni Mott of the Jackson Free Press. The title of the JJ post was "Is Ronni Mott a Liar, Hack, or Just Plain Stupid?" You can read the whole post here:

What the JJ blogger calls a "lie" is this sentence by Ms. Mott: "The [stimulus] bill’s passage proved to be highly partisan—with Obama and the Democrats on one side and the nearly the entire GOP lined up against it—despite the president’s best efforts to reach across the aisle."

Ronnie Mott's whole story is here:

Perhaps our local conservatives should check the actual statements of the House Republicans. Now that the stimulus bill has been enacted into law, they are falling all over themselves to tell their constituents what wonderful things have been included. One of many catalogs of these comments has been posted on Jake Tapper's blog on ABC News' website. You can find it here:

Here's a sampling of what House Republicans say when they get back home:

Rep. Don Young, R-Alaska, for instance, issued a press release last week heralding how he "won a victory for the Alaska Native contracting program and other Alaska small business owners" by working with Democrats to pull a provision from the Senate bill that he feared would hurt American Indian and Alaska Native owned businesses.

Rep. John Mica, R-Fla., issued a press release saying, “I applaud President Obama’s recognition that high-speed rail should be part of America’s future.”

Rep. Pete Hoesktra, R-Mich., "tweeting" to his homefolks: "If you know of someone thinking of buying first home, now may be the time. Stimulus incentive is very generous! Up to 8k! Check it out."

In New Jersey, Rep. Leonard Lance, R-N.J., toured a Army Corps of Engineers construction site that will likely get stimulus dollars. "This is a classic example of a "shovel-ready' project," he said.

In Kirksville, Mo., Rep. Blaine Luetkemeyer, R-Mo., visited Truman State University where he said: “Within the stimulus package there is some Pell Grant money, which is a good thing. It helps students be able to pay for their education and that's kind of a long term stimulus effect there. I mean obviously that's not gonna provide a job in the next 120, 180 days, but the ability of someone to get an education is an economic development tool."

Sen. Kit Bond, R. Mo., heralded $2 billion in funds in the stimulus bill to jump start low income housing projects. "Bond says the $2 billion amendment is small potatoes in the nearly $800 billion package, but it will save jobs, employing more than 3,000 people in Missouri alone," the local paper reports.

So if Republicans had "no input" into the stimulus package, why are they falling all over themselves to TAKE CREDIT for it?

What happened -- just as Ronni Mott reported -- is that the Obama Administration reached out to Republicans, then included spending items and tax cuts that had their support. (The President also excised items after Republicans complained -- the family planning funds come to mind).

Only after they got much of what they wanted through private discussions, did the Republicans quail about the overall cost of the bill. Their complaint that they "never saw the language" until the day it was proposed rings hollow -- the Bush/Paulson bank bailout was only a page long but had support from both sides of the aisle.

So leave Ronni Mott alone, folks. She's dead-on right. Again.

Wednesday, February 18, 2009

Johnny-Come-Lately Don't Know Much About History: Why Judge Buffington Was Right

I have to laugh (smiling isn't enough) at the conservatives who are SO up in arms about Chancellor Larry Buffington's appointment of former Mississippi Supreme Court Justice Oliver Diaz to a post as Simpson County Youth Court Defender.

For example, a "Simpson County resident" named Tom Bruckner has announced that he is filing a complaint with the Mississippi Commission on Judicial Performance against Chancellor Buffington. The right-wing (but highly entertaining) blog Y'all Politics reports Brucker's screed verbatim here:

Among other things, Bruckner says:

I attended the Board of Supervisors meeting in Simpson County on February 11 and feel obligated to make a formal complaint against Judge Larry Buffington. His actions warranted a complaint when he used his power as a judge to make an unnecessary appointment, just so one of his friends could earn state retirement.

Put aside for the moment that Judicial Performance complaints are supposed to be confidential (a requirement honored in the breach more than the observance).

ALSO put aside this writer's experience that the Commission never targets judges in the "in" group, and has a history of racially disproportionate prosecutions.

My question today is simple: where, oh where, have Citizen Bruckner and Y'all Politics been? Many of us have, FOR YEARS, attempted to change the system which allows local judges to appoint their public defenders. It creates a situation where the defender feels more obligated to the judge(s) than to his or her own client.

The most recent example has been the debacle with the Mississippi Office of Capital Post-Conviction Counsel under the leadership of former director Robert Ryan. The Mississippi Supreme Court had originally appointed Jack Williams from Oxford to head that office. But when Williams insisted on having sufficient time to prepare capital post-conviction petitions, then Chief Justice Edwin Lloyd Pittman fired Williams and appointed Ryan (without ever advertising for other applicants).

Think Ryan got the message? He filed numerous post-conviction petitions that merely copied and pasted from the prisoner's prior appeals, attached hearsay affidavits from investigators and paralegals instead of from the witnesses they interviewed, fired pro bono investigators who had found real evidence of mental illness and instead filed spurious mental retardation claims without evidence, and in a case where the client WAS mentally retarded, rested his case without calling a psychologist or other mental health expert. "Just going through the motions" doesn't begin to cover it. "Good enough for government work?" Not.

Note: the JFP story I wrote about the execution of Earl Berry, and Ryan's woeful work, is at

The JFP's Ronni Mott did her own excellent reporting on the subject of MOCPCC:

Did Y'all Politics say ANYTHING about the fact that Ryan evidently cared more about pleasing the Chief Justice who could hire and fire him, than about his clients' welfare? Did Citizen Bruckner? If they did, I didn't see or hear it.

Another example: under Governor Kirk Fordice (of all people), the Mississippi Legislature created a State Public Defender Commission, which was charged to implement a statewide public defender system with the lawyers appointed by a neutral, non-political, non-judicial body. Just think: lawyers for indigent defendants appointed on the basis of merit, not by fear or favor. The PROSECUTORS Association howled after the bill was passed, and succeeded in having it repealed the next session (under Governor Musgrove).

Did the conservatives complain then? I was there, and unless I'm deaf, I didn't hear it.

So clearly, then, our Johnny-Come-Lately Citizen Bruckner and his favorite red-meat blog don't care about neutral appointments of indigent defenders. They're just trying to gore the ox of their choice.

On the other hand, if Citizen Bruckner means what he says, maybe he could persuade his legislators to re-institute the Public Defender Commission. I'm sure Y'all Politics will endorse the idea . . . right?

Until that day comes (watch for the tell-tale outdoor hockey rinks in Hades), Judge Buffington has the prerogative to appoint the lawyer(s) of his choice to be youth court public defenders.

And it seems to me that a former Supreme Court Justice is more than qualified for the post.

A Startling Admission in the Melton Trial

Have we endured so many public integrity trials in Mississippi that we've lost our perspective? Consider John Reeves' opening statement, given at the beginning of the defense case in United States v. Melton. According to the Clarion-Ledger's story, Reeves said:

"A violation of the constitution, by itself, is not a crime."

The Clarion-Ledger story is here:

Is that really such a great argument? It's a head-spinner for me to hear the spokesman for a public official admitting that the official violated the Constitution but without "bad purpose." An intent to violate the Constitution IS "bad purpose." The ends, however expedient or worthy, don't justify the means. And in this case, it's not at all clear that the ends were either. Looks like a public official on a power trip to me.

Friday, February 13, 2009

House of Hypocrisy?

The House of Representatives has approved the $787 Billion compromise stimulus package, but on a straight party vote of 246 to 183. The New York Times story discussing the vote is here:

As the Times reports, House Republicans fumed about the cost of the stimulus in their speeches. House minority leader John Boehner of Ohio argued that a bill that was supposed to be about “jobs, jobs, jobs” had turned into one that was about “spending, spending, spending.”

What a difference a presidency makes. When George W. Bush was in office, Rep. Boehner and his cronies had no problems with voting for authorizations for the Iraq escapade, up to a total of $800 Billion through mid-2009. See

Included in that "spending, spending, spending" was $20 Billion paid to KBR, a former division of Halliburton (formerly run by Dick Cheney) to supply U.S. military in Iraq with food, fuel, housing and other items. The portion of the $20 billion paid to KBR that Pentagon auditors deem "questionable or unsupportable"? A mere $3.2 Billion.

Pity the House Republicans. Hypocrisy is such a pathetic failing.

Thursday, February 12, 2009

Expropriate the Expropriators -- By Purchasing Their Stock?

In the wake of the $750 Billion Bush Bailout, and the even bigger $1.5 Trillion Geithner plan to create incentives for reform of the financial services industry, some economists are calling for a more direct fix: let the Government purchase common stock in banks and use the voting power of that stock to force real change.

An interesting story on that concept comes, surprisingly, from Fortune magazine's website. You can read it here:

The article explains that:

Treasury Secretary Tim Geithner said Tuesday that the administration seeks to restore the flow of credit in the economy by offering $1 trillion in financing for consumer and business loans, a $500 billion plan to induce private investors to buy troubled assets from banks and $50 billion for foreclosure relief.

Fortune then quotes an economist at Brown University to explain the alternative:

Ross Levine, an economics professor at Brown University, said if the government starts buying common stock in banks, it will show that it is serious about taking control of troubled institutions and protecting the taxpayer.

"If you go refilling the bank accounts of the architects of this crisis, people are going to have an emotional reaction," said Levine. "You can't make the recovery plan a direct gift to the existing owners and managers of these enterprises."

If the government actually owned common stock in banks, it would allow regulators to have more of a say in how the banks are managed going forward.

This is a real indication of how the debate in this country has moved sharply to the left. Can you imagine what would have been said if either the Carter or Clinton Administrations had engendered talk of federal ownership of bank stock? Not even FDR contemplated such a bold move.

In his grave at London's Highgate Cemetery, Karl Marx is surely smiling. In Chapter 32 of Das Kapital, he wrote:

The monopoly of capital becomes a fetter upon the mode of production, which has sprung up and flourished along with, and under it. Centralization of the means of production and socialization of labor at last reach a point where they become incompatible with their capitalist shell. That shell is burst asunder. The knell of capitalist private property sounds. The expropriators are expropriated.

I don't think Marx meant to say that the expropriators would be expropriated by the purchase of their common stock by the people . . . but then, who could have predicted that?

While We're At It, Why Not Fix The Student Loan Debacle?

You may remember that I previously posted about the problems with the privatization of student debt.

Now there is a movement afoot to provide loan forgiveness of student debt -- a powerful shot of economic stimulus. If the millions of dollars of student loans were paid off or forgiven by the Federal Government, those recently-educated people, many of them with new jobs and new families, would pour the saved loan payments back into the economy.

But there is a more important issue. After the Government privatized student debt, the loan sharks in bankers' clothing surfaced, and are now literally crushing the lives of persons who were motivated to go (or go back) to college to better themselves.

You can help:

1. If you are on Facebook, you can join the FB group "Cancel Student Loan Debt to Stimulate the Economy":

2. You can also sign the on-line petition on the issue:

3. Write or call the White House, your Representative, and your Senators.

The Huffington Post has already noted the momentum behind this idea:

Let's make it a reality!

Does Uncle Tom Go Both Ways?

I promise I'm not obsessed with Assistant DA "Uncle Tom" Levidiotis of Oxford, although I have posted twice before about his exploits.

But I thought my readers would want to know that, although he now is a full-time prosecutor for the State of Mississippi, Mr. Levidiotis is still listed as counsel of record for prisoners in habeas corpus proceedings AGAINST the State of Mississippi.

For example, the PACER docket in the U.S. District Court (Southern District of Mississippi, Hattiesburg Division) in the case of Stevens v. Epps, Civ. Action No. 2:04-cv-00118-KS, lists Mr. Levidiotis as "Lead Attorney" for Mr. Stevens.

That docket also reports that on November 18, 2008, Mr. Levidiotis filed a Rebuttal in Support of Mr. Stevens' Motion to Alter Judgment and Motion to Alter or Amend Pursuant to Rule 59(e).

Another one:

The PACER docket in the U.S. District Court (Northern District of Mississippi, Greenville Division) in the case of Branch v. Epps, No. 4:07-cv-00138-MPM, lists Mr. Levidiotis as one of the "Lead Attorneys" for Mr. Branch. ADA Levidiotis filed a motion for Mr. Branch (a "Motion for Leave to File Responsive Pleading") as recently as January 28, 2009.


The Fifth Circuit docket for Simmons v. Epps, No. 08-70048, lists Mr. Levidiotis as one of the attorneys for Mr. Simmons. He entered his appearance on December 19, 2008, and was issued a voucher for Federal payment for his services on January 14, 2009.

Am I the only one who thinks this isn't quite kosher? I suppose a newly appointed public employee is allowed to carry on his prior work long enough to keep his clients from being prejudiced. But Mr. Levidiotis is not the only attorney for the prisoners in any of these cases; surely it wouldn't be an issue for him to withdraw. And does the "winding down" rule apply when one has what appears to be a direct conflict of interest?

Maybe this is just the Mississippi legal system, once again, cutting corners on fundamental principles. But it smells fishy to this writer.

Republicans Don't Go Both Ways -- Goodbye to Bi-Partisanship in the Mississippi Legislature

This morning's Clarion-Ledger reports on the House of Representatives' deliberations and vote on the Voter ID bill. The story is here:

Natalie Chandler reports:

The bill received 77 votes of support, and 44 votes in opposition after an hours-long debate that ended with several lawmakers removing their authorship of the legislation. It could be debated again before advancing in the 2009 regular legislative session.

* * * *
Voter ID measures have repeatedly failed in the Democrat-controlled House, and Wednesday's debate showed a lingering racial divide on the issue. Several Legislative Black Caucus members who had authored House Bill 1533 in its original form removed their names from the revised version.

The original bill allowed voters to show various forms of identification that do not include photos, such as utility bills or paychecks. House Judiciary B Committee Chairman Willie Bailey was one of several caucus members who signed onto it.

"I thought we could at least try to come to some kind of common ground to get this issue behind us," said Bailey, D-Greenville.

But in a narrow vote, Republicans successfully led efforts to change the bill to require state-issued photo identification.

State Rep. Herb Frierson, a Republican from Poplarville, offered the revised bill.

So, here's what happened. In the Mississippi Legislature, a committee chair is omnipotent. He or she can block any bill referred to the committee simply by never "calling the measure" up for a committee vote. Voter ID has been killed by Reps. Bailey and Blackmon for years in this manner.
This year, proponents of voter ID asked House Democrats, including the Legislative Black Caucus, to offer a compromise solution to the voter ID debate to get the measure out of committee. Representative Bailey did so. He mitigated the many concerns about the use of voter ID to intimidate older and minority voters.

But when the bill got to the floor, as if by pre-arrangement, a Republican offered an amendment that stripped away all of Mr. Bailey's protections.

That may be "politics as usual," but it isn't very smart. If I were a House Democrat, I wouldn't give the Republicans ANY more deals this session, PERIOD.

And I'd also tell my colleagues in Washington to roll the SOB's (oops, I mean GOP's) in Congress this session. If Repubs won't work both sides of the aisle in Jackson, why should Dems work both sides in DC?

The Question NOT Asked in Yesterday's Session of US v Melton

The Clarion-Ledger reports that the Federal prosecutors called various witnesses yesterday to establish that Defendants Frank Melton and Michael Recio knew that the Constitution and State law required court authorization before a house could be demolished. The full story is here:

With respect to Officer Recio, the C-L describes this testimony:

Federal prosecutors called on Recio's former police academy instructor, John Kelley, to explain to jurors the depth of constitutional law he taught Recio during a 1992 class. Kelley is a retired FBI agent and was a guest instructor at the Mississippi Law Enforcement Officers' Training Academy in Pearl.

Kelley looked directly at the jury as he explained that his class put a special emphasis on Fourth Amendment rights and the need for search warrants. At times, images of his course syllabus were projected on a large screen for support.

* * * *
Recio's attorney, Cynthia Stewart, asked Kelley if he would be proud to know that Recio listened to his teachings and did not enter the duplex that night. Prosecutors objected, and Kelley did not have to answer the question.

With all due respect (as we say in the law biz), I think if I were Recio's attorney, I would have asked Kelley: "What grade did Mr. Recio get in your class?" To be blunt, the impression I have is that if this guy is a rocket scientist, he's working on deep undercover.

Lobbyist Probe Hits Close to Home

Yesterday's Sun-Herald reports that the Federal probe into lobbyist Jack Abramoff is focusing on a former member of Senator Thad Cochran's staff. Their story is here:

The Sun-Herald states:

During Abramoff’s heyday, Cochran was a top Republican on the Senate Appropriations Committee, with direct control of the federal purse strings that Abramoff was so desperately seeking to pull. Previous documents have shown that Abramoff’s firm considered Cochran’s office one of its greatest assets and rewarded him with top-dollar campaign donations.
The new information raises questions about how much Cochran knew of his staff’s involvement with the lobbyists and whether he was aware that one of his closest advisers allegedly was doing their bidding.

Washington's insider culture can be a deadly thing. I didn't vote for Senator Cochran last year, but I respect his work for Mississippi through the years. Let's hope that the evidence shows that the Senator was not aware of the perks allegedly given to his staffer.

And let's also hope that the Democrats, now firmly in control of Congress, don't fall prey to the same temptations. After all, greed and hubris are non-partisan failings.

Wednesday, February 11, 2009

Here's the Senate Stimulus Bill

Just in case you can't find it anywhere else, the Senate bill on the economic stimulus program is here:
It's 778 pages (thereabouts), so be careful about hitting "print"!

An Idea Whose Time Has Passed -- Prison Population Explosion (Part 2)

Following up on the last post, consider the excellent analysis on the Mississippi Criminal Defense Law Blog, discussing the American Bar Association's latest report on prison policy. The blog post is here:

Blogger Kevin Frye quotes this salient portion of the ABA's report:

At midyear 2007, U.S. prisons and jails held 2,299,116 inmates, meaning more than 1 percent of American adults were incarcerated. We top the world in per capita imprisonment, increasing our lead every year. Since 2000, while the total U.S. population increased by 7 percent, our prison population has grown by 19 percent. Our massive imprisonment costs needless billions and, perversely, hinders effective crime control.

A rational criminal justice system would—while shortening sentences of certain offenders—keep others out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely.

But alternative programs work only when properly funded. A state spending every dollar on prisons may think it cannot afford drug treatment programs and fully staffed probation offices, especially when the economy demands budget cuts. The opposite is true: States cannot afford to neglect these programs or they will pay down the road tenfold—in prison costs, welfare budg­ets and elsewhere. Beyond monetary costs, cit­izens will suffer needless increased crime when of­fenders who never belonged behind bars eventually return to the community more dangerous than before.

Kevin Frye has previously posted an excellent analysis of sentencing trends and costs here in Mississippi. That full post is here:

Frye cites the MDOC's fiscal 2007 budget report: (, and points out:

Housing an inmate at Parchman costs $45.48 per day, while the Intensive Supervision Program (house arrest) costs just $9.96 per day. Clearly a cost savings of $35.52 per day (Yes, I did the math for you.) is substantial. The cost difference between housing an inmate for one year in Parchman versus one year on house arrest? $12,964.80.

If I understand the MDOC report correctly, in the 2007 fiscal year, Mississippi incarcerated 19,824 prisoners at a total operations cost of $283,419,954. That is a staggering cost.

Many people believe that the increase in incarceration is from the change to "truth-in-sentencing" laws that eliminated the possibility of parole. The American Law Institute's Consultation Group for the revised Model Penal Code: Sentencing, on which I participate, thinks the statistics do not bear this out.

The real problem is this: after "truth-in-sentencing" was enacted, judges continued to use the same length of sentences as they did when parole was available. That was never the purpose of that reform. Previously, a person convicted of aggravated assault who was sentenced to 20 years was eligible for parole in 5. That prisoner would likely be released between years 5 and 10. With "truth-in-sentencing," judges are afraid to "reduce" the length of the sentences they gave before, so the agg. assault defendant gets 20 years to serve. That's what drives increases in long-term incarceration.

At the same time, we accept as a commonplace that prison does the opposite of rehabilitation: it creates a graduate program in crime, increases the hostility of prisoners to society, and does little to prepare them to cope with freedom (which most of them will, ultimately, achieve).

Does it have to be this way? Of course not. The model of rehabilitation is the addiction services programs that have been in existence since "Bill W" founded Alcoholics Anonymous. Sure, maybe that rehabilitates only 40-50% of addicts. But isn't that a much higher success rate than incarceration?

As a starter toward real reform, why not increase the use of drug courts in Mississippi? They use an addiction-recovery model instead of the failed incarceration model. But adjust the current practice of sentencing addicts who fail to recover to the maximum punishment. There's no need for that -- an addict facing being sent to jail or prison for six months to a year would have sufficient incentive to follow through with the recovery program. More than that just turns an addict into a career criminal.

Just a thought.

An Idea That Has Run Its Course -- Prison Population Explosion

Federal judges in California have ruled that the state must cut its prison population by 40 percent, possibly requiring the early release of 58,000 prisoners. CNN's story is here:

The court says that the prison population explosion has resulted in unsafe and unsanitary conditions that threaten the health and lives of prisoners and corrections personnel.

At the same time, California's budget crisis have led many to wonder if capital punishment is worth the cost. The California Commission on the Fair Administration of Justice, a bipartisan group created by the State Senate, reported last summer that the death penalty process is "dysfunctional." At that time, the Los Angeles Times reported:

Although commissioners strongly disagreed on some issues, they were unanimous in concluding that the current death penalty system was failing and in agreeing that a large amount of money was needed for significant change. The report offers alternative proposals for reform.

The commission did not advocate abolishing the death penalty but did note that California could save $100 million a year if the state replaced the punishment with sentences of life in prison without possibility of parole. Death row prisoners cost more to confine, are granted more resources for appeals, have more expensive trials and usually die in prison anyway, the commission said in its 117-page report.

The full story is here:

The costs have become so staggering that even in Marin County, which stands to gain from the proposed construction of a new death row facility at San Quintin, the local paper advocates abolishing capital punishment on cost grounds:

In these times of unprecedented budget shortfalls and financial crisis, it's important to understand how the state is spending that $250 million on the death penalty:

- $117 million is for the extra costs of death row housing, attorneys for the prosecution and defense, and court costs. These are the extra expenses we pay every year to have the death penalty in California-expenses that would disappear if we replaced the death penalty with permanent imprisonment (which has no opportunity for parole), but expenses that are required as long as we have a death penalty.

- $136 million is to begin construction of a new death row facility. We are forced to build a new death row because our current facility is overcrowded and broken down. The total estimated cost for completing the project is now $400 million and the costs for running the facility are estimated at $1 billion for the first 20 years.

The full Marin Independent Journal editorial is here:

This is not just a California phenomenon. The criminal justice system in the United States is based upon the application of two ideas -- mass incarceration and capital punishment -- that have repeatedly failed to achieve the goals of rehabilitation or deterrence.

It's time for a fresh, no-holds-barred analysis of what we CAN do, after a person is proved to have broken the law, to keep our communities safe, restore the offender to a society, and heal their victims.

New ideas, anyone?

Monday, February 9, 2009

Truth Hurts, Senator Leahy: Let The Prosecutions Begin

From the AP via FindLaw, this story ( about a possible Truth Commission proposed by Senator Leahy which would prevent prosecutions of former Bush officials for abuses of power:

The chairman of the Senate Judiciary Committee is proposing a "truth commission" to investigate abuses of detainees, and politically inspired hirings and firings at the Justice Department during the Bush administration.

Sen. Patrick Leahy said Monday the commission's primary goal would be to learn the truth rather than prosecute former officials.

* * * *

The Vermont Democrat said rather than seeking prosecutions, the government needs to conduct "a fair minded pursuit of what actually happened."

I couldn't be more opposed to this idea. Look at the millions of incarcerated prisoners in this country, and tell me that someone who breaks into a store at night to feed his or her family is more blameworthy than a professional who violated the rights of his or her fellow citizens by spying, reckless or unfounded prosecutions, or destruction of the DOJ's nonpartisan mandate to do justice.

Don't be afraid of prosecuting white-collar criminals, Senator Leahy. They do as much damage as any other law-breaker.

Does Death Penalty Defense Really Pay?

As you may realize, the Blogspot web manager allows a blog like mine to sponsor ads. Google picks the ads based on some computer program that matches the content of the blog with the ad. So lately, the ads in my World feature several lawyers who advertise, "Facing the Death Penalty? Call me, yada, yada, yada."

Some helpful information for the folks posting the ads:

1. People facing the death penalty rarely have access to the Internet.

2. People facing the death penalty rarely have funds to hire lawyers.

3. Lawyers who try to get paid privately for handling death penalty cases rarely know what the hell they are doing.

In any event, if you or your loved one ARE facing the death penalty in Mississippi, don't call these slobs. Just ask your local PD to have the Mississippi Office of Capital Defense Counsel represent you. ( . Andre deGruy, the Executive Director of the Office, is the best trial lawyer handling capital cases in the State. He's free, and you or your loved one are probably eligible to hire him.

I guess I won't get much ad revenue on this thing. Oh well.

Don't Listen to Them, Mr. President

The President is facing near-unanimous Republican opposition to his economic policy. But he doesn't need to stare too much at his rear-view mirror -- the Republicans he left in the dust last November are still there. Jason Linkins on The Huffington Post reports a new ABC News poll that shows that 67% of Americans approve of President Obama's plan to use public spending to stimulate the economy. That means, of course, that at least 13-14% of Americans who voted against the President are in his corner on the need for the stimulus. The same poll shows 58% disapproval of Congressional Republicans' stonewalling. 51% of those polled consider the plan's passage to be "critically important," with "Only 16% say it is 'not that important.'"

Linkins' excellent report ( also explains that the "moderate Senators' plan" does NOT cut "pork," but instead reduces funds for State governments and school construction:

Senators Ben Nelson and Susan Collins have been allowed to skate by and issue fundamental falsehoods about what they have done to the bill. . . . . [t]he two Senators claim to have "funded education," and have ensured that the bill will contain "robust spending on infrastructure to create jobs, $87 billion in assistance for states, and assistance to schools, especially for special education and Pell grants." [But in fact their plan includes]:

* Elimination of $25 billion in flexible funding for state governments.

*Cut $7.5 billion in funding for "state incentive grants" to help states make progress toward No Child Left Behind goals.

* Eliminated $19.5 billion in construction aid for schools and colleges.

* Reduced new aid for the Head Start early childhood program by $1 billion.

Nowhere in their statement do [Senators] Nelson and Collins make any effort to justify these decisions. Indeed, they don't even seem prepared to admit that they made these decisions.

Don't stop now, Mr. President. Remember that it was the Republicans who would only vote for the Bush Bailout after $100 billion in pork was added to the Fall package. Take care of the people and we'll take care of the GOP doomsayers.

Friday, February 6, 2009

With Enemies Like This, Who Needs Friends? (Part Two)

Another story from North Mississippi. Courtesy of the blog Folo (, I read this story on The Daily Mississippian about an astonishingly light sentence for a defendant accused of stabbing his victim in the back five times:

(The Folo story is here:

As the Daily Mississippian reports:

The new Lafayette County Assistant District Attorney, Thomas C. Levidiotis, has cleared approximately 120 circuit court cases since he assumed his position on the first of this year. But in clearing so many cases at once, one former Lafayette County resident said a major mistake was made.

Scott White was a victim of a violent multiple stabbing in April 2007 by his neighbor, 29-year-old Jerami Tubbs of Aberdeen.

Mississippi does not have a law against attempted murder, so authorities arrested Tubbs on charges of aggravated assault. While assault charges could land a criminal in jail for 20 years, Tubbs worked out a deal which got him only one year of house arrest followed by four years of probation.

According to White, the District Attorney’s office didn’t inform him the deal was happening until after Tubbs pleaded guilty.

“As a result, the person who stabbed me, an unarmed man, in the back five times without provocation does not spend a day in jail for his crime, and I was deprived of my right under the law to express my concerns in court,” White said.

Oh yes, you remember correctly. I've talked about Mr. Levidiotis before:

It seems that Uncle Tom gets fantastic results for criminal defendants -- when he's the attorney for the State of Mississippi??

Am I the only one who wonders if we don't know the whole story here? The Daily Mississippian tried to find out, but Lafayette County's newest public servant couldn't be bothered to be accountable. The paper reports:

Levidiotis declined to comment on his failure to inform White of the plea bargain by saying, “That does not fit my recollection, but I will not comment on something told to The Daily Mississippian about a case I have handled.”

He did point out that the defendant was sentenced for five years, but with four suspended, leaving one year to be served via house arrest.

Thanks. I feel safer now.

With Enemies Like This, Who Needs Friends?

The Northeast Mississippi Daily Journal reports that nobody has written letters to U.S. District Judge Biggers requesting leniency for Tim Balducci, the wire-wearing witness in the USA v. Scruggs et al., case. The DJ story is here:

The DJ tells us this:

Not one person's letter was in the U.S. District Court file asking leniency for former New Albany attorney Timothy Balducci.

* * * *

Balducci and former state Auditor Steven Patterson face a Feb. 13 sentencing before Senior Judge Neal Biggers Jr. for their roles in a conspiracy to bribe Circuit Judge Henry Lackey of Calhoun City.

It's unclear whether Biggers will show any leniency to Balducci for his key cooperation or to Patterson, deemed a bit player by the government when he pleaded guilty in January 2008.

Today, their pre-sentence letter files were opened to four media organizations, who asked to see them. Balducci's contained only two letters, apparently copies from other letters written generally about the others.

But despite Balducci's empty "pre-sentence letter file," he should expect strong recommendations of leniency from the United States Attorney. The wiretapping and video cameras in Judge Lackey's chambers never captured any statements by Richard Scruggs. Without Balducci's cooperation, the Government only had a case against . . . Balducci.

If I had to choose between: (1) a file containing five hundred letters from bishops, coupled with the enmity of the US Attorney, and (2) an empty letter file and a positive recommendation from the US Attorney, I wouldn't think long. Give me #2, anytime . . .

NOTE: In the interest of full disclosure, recall that my partner Frank Trapp headed the legal defense team for Sid Backstrom, on which I was happy to contribute.

The Difference a Choice of Words Makes

The Jackson Free Press, the ever-vigilant watchdog during the Melton Administration, tells us about a critical issue raised toward the end of jury selection today in United States District Court. The story is here:

As the JFP relates:

In today’s proceedings, defense attorneys and prosecutors questioned the final potential jurors and clashed over the use of the term “bad purpose.” Cynthia Stewart, Recio’s attorney, used the term during her line of questioning, in describing to potential jurors what constitutes a “willful” act. Jurors must decide whether or not Melton and Recio acted “willfully” in depriving Ridgeway duplex resident Evans Welch and owner Jennifer Sutton of their Constitutional rights. Federal prosecutor Mark Blumberg objected to the term “bad purpose.”

“My ruling said that the instructions on this law will have to define the term ‘willful’ as a conscious intent to do wrong and deprive a right protected by the Constitution,” Jordan said. “What I am hearing is that the two sides have a different concept as to what a conscious purpose to do wrong means.”

The Clarion-Ledger story is here:

The C-L adds this point:

Quoting 5th U.S. Circuit Court of Appeals precedent, Blumberg said jurors must decide whether Melton and his former bodyguard, Michael Recio, acted "voluntarily and purposefully" in violating the law. Defense attorney Cynthia Stewart said the language should be limited to whether the defendants acted with "bad purpose."

Stewart said she would ask for a mistrial or a delay if Jordan changed his ruling at such a late date. Jordan said he believed his ruling was broadly worded enough to proceed with jury selection, but both sides indicated the precise wording to jurors in how to define the actions of the mayor and his bodyguard is central to their cases.

This is no small matter. Recall that in the State Court trial over the same incident, the jury was instructed that it had to find that Mayor Melton acted "with evil intent" in order to be convicted. Those words gave attorneys Dale Danks, Jr., and Merrida Coxwell the chance to defend the case on the basis of the Mayor's desire to stop crime in Jackson.

Cynthia Stewart and John Reeves obviously want to use the same defense in the Federal case, and the comments made by prospective jurors indicate they would be sympathetic to it.

But if the jury only has to find that the Mayor acted "wilfully," with a "conscious purpose to do wrong and deprive a right protected by the Constitution," evidence that "Melton wants to do right, he just got carried away" might not even be admissible.

The ultimate question, though, is why "conscious purpose to do wrong" would be in the instruction. If the Federal agents doing post-9/11 surveillance had no "purpose to do wrong," (because, like Vice President Cheney, they thought extra-legal measures were needed to stop terrorism), but knew they were depriving Constitutional rights, isn't that enough to convict?

The instruction should allow the jury to convict if they find the Mayor acted "willfully, with a conscious purpose to deprive a right protected by the Constitution."