Scalia Openly Condones Torture

Creating a Legal Storm

US Supreme Court Justice, Antonin Scalia, made his first major television appearance this week on 60 Minutes.

Previously he has severely restricted media access, especially in his court, citing his,

First Amendment right not to speak on the radio or television when I do not wish to do so.

In 2004, he even had his security guards erase a recording of a speech he had made in Mississippi.

Scalia is a known controversial figure on the Supreme Court, going by the name Nino in reference to the storms he creates. He is often remembered for his objection to the Roe v. Wade ruling that allowed abortion in the U.S. in 1973.

He told 60 Minutes,

You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change

closed chambersSmartest Man on Supreme Court of US

Ed Lazarus, author of Closed Chambers, was interviewed by Brian Lamb in 1998,

LAMB: Who’s the smartest member of the Supreme Court now? Mr. LAZARUS: Oh, I don’t whether I could–you know, I don’t know what their IQ scores are. I will say this that–that Justice Scalia is a enormously powerful in–in–intellect. And he has a very powerful writing style. And he’s very sure of himself. And those factors combine to make him extraordinarily influential. He has a–a very steadfast view, although as I point out in the book, he–he’s not always consistent. But–but he puts forward a powerful ideology, and he’s–he’s quick as can be. And–and that makes him very influential.

Support for Torture

Perhaps Scalia’s greatest contemporary controversy is his recent support for the use of torture. In the 60 Minutes interview he stated,

STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?

SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.

STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–

SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?

Scalia’s ideas are infiltrating the Canada as well. At a conference in Ottawa last year, Scalia repeated these comments on a panel on terrorism and torture said,

Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’

The statement was in reference to Scalia’s comments on the show,

Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives. …Are you going to convict Jack Bauer?. Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so. ..So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.

And earlier this year, Scalia told the BBC,

You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good.’

You can’t?

Article 2 of the UN Convention Against Torture states,

  1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
  2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
  3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Ali on Think Progress cites Human Rights First, who point out torture raises other constitutional questions besides 8th Amendment violations:

[I]t seems Justice Scalia has forgotten about the 5th Amendment’s guarantee of due process. Furthermore, a court holding a witness in contempt for refusing to cooperate with a judicial proceeding is, in fact, quite different than an interrogator resorting to physical abuse when a prisoner refuses to talk.

Anne Applebaum dispels The Torture Myth in the Washington Post,

Just for a moment, let’s pretend that there is no moral, legal or constitutional problem with torture. Let’s also imagine a clear-cut case: a terrorist who knows where bombs are about to explode in Iraq. To stop him, it seems that a wide range of Americans would be prepared to endorse “cruel and unusual” methods.

She thinks people like Scalia should stick to their fictional television, and avoid making judgments on subjects they know nothing about.

Applebaum interviews an array of military specialists who say that torture simply doesn’t work, and would provide faulty intelligence,

Aside from its immorality and its illegality, says Herrington, torture is simply “not a good way to get information.” In his experience, nine out of 10 people can be persuaded to talk with no “stress methods” at all, let alone cruel and unusual ones. Asked whether that would be true of religiously motivated fanatics, he says that the “batting average” might be lower: “perhaps six out of ten.” And if you beat up the remaining four? “They’ll just tell you anything to get you to stop.”

Canadians are “idiots”

Scalia’s ideological basis is grounded in an “originalist” and “textualist” interpretation of the Constitution. He condemns judicial activism that introduces flexibility into the Constitution to allow for changing times and values.

Canada adopts the opposite approach, and a need for a broad and liberal reading of the Constitution to change with the times is Constitutionally entrenched.

Such flexibility has allowed for same-sex marriage in Canada, but also allowed women to sit in the Senate in Edwards v. Canada (Attorney General), also known as the Persons case, because women were finally legally deemed to be people too.

Privy Council cited Sir Robert Borden in Canadian Constitutional Studies in the Persons case,

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.

The danger in adopting Scalia’s rigid approach instead is openly apparent. NPR interviewed him yesterday and said,

By this logic, if capital punishment was constitutional in 1791, it would be constitutional today. Theoretically, this means that putting people in stocks in the public square, a punishment used in 1791, is also constitutional.

His response was,

I would say that may be very stupid, but it’s not unconstitutional, if indeed it was a punishment that was at that time accepted.

But a stupid argument is probably better than being called an idiot, which is what Scalia does for those who disagree with his Constitutional interpretation,

People who believe the Constitution would break if it didn’t change with society are “idiots.”

Publicity for Money, Or Avoiding Being Demonized?

All of this recent publicity for someone who has so strongly shunned and even attacked the media seems strange.

Making your caseBut the Law Times reports that his current media blitz is part of a recent (subsidized) strategy to improve his his image,

My kids have been working on me to get out and do more public appearances. They think it makes it harder to demonize you — and I agree.

It’s also probably no coincidence that on Monday he released his book, Making Your Case: The Art of Persuading Judges.

Adam Cohen claims in the New York Times that Scalia’s many antics, which also include obscene gestures and refusing recusal (due to conflict of interest), are bring disrepute to the highest legal institution in the most powerful country on Earth.

Cohen says,

More than any modern justice, Justice Scalia seems intent on presenting himself to the world as an outspoken champion of conservative values. But conservatives are people who believe in respecting and preserving existing institutions. There is nothing conservative about diminishing a great institution like the Supreme Court by making inflammatory and partisan off-the-bench statements and ignoring the rules of ethical judging.

And if you’re looking to avoid being demonized by the media and the public, being the poster boy for Abu Ghraib probably isn’t the best way to do it.

Letter from Nigerian Prince

By: Law is Cool · April 29, 2008 · Filed Under Humour, Politics · 1 Comment 

A parody of the Nigerian e-mail frauds in reference to the Conservative Elections Scandal, Courtesy of Calgary Grit:

From: Conservative Headquarters
To: Conservative Candidates
Date: December 2, 2005
Subject: Urgent Request

Dearest Candidate,

Good morning, how are you and your family? I hope fine. Please, I am sorry to bother you with our problem.

Please know that it’s not by mistake I am contacting you but by the special grace of God. Let my start by introducing myself. I am writing from Stephen Harper’s Conservative Party with this urgent request from Party Headquarters.

Now is the time for all good men to come to our aid.

The Conservative Party has an extra ONE MILLION TWO HUNDRED THOUSAND DOLLARS in its bank account which is ordained to be used for TV advertising just before the January 23, 2006 election. But the Evil Chief Electoral Officer and his Satanic henchman, the Commissioner of Canada Elections, are watching us closely and are not permitting us to spend more than our puny $ 18.3 million limit.

Rules cannot be allowed to stop us from our destiny. Your campaign is identified as one which is not spending the limit. We will be switching our spending to your account by transferring $ 40,000 to your election bank account. But first you must give me a wire transfer form so that I can take the money out of your account as soon as it send you the money. I promise not to take more than I put in. Trust me.

After I use your bank account for this in and out transfer, you may claim 60% back from Elections Canada. This means you will get $ 24,000 and all you will have to do is let me use your bank account for one minute.

I assure you this is all legal. No one will suspect that this spending in not really for your campaign. And you can use the $ 24,000 anyway you wish.

Expecting your soonest response.

Stephen Harper Campaign Team
Conservative HQ, Ottawa*

*Dramatization of evidence use to obtain Criminal Code warrant to search Conservative Headquarters.


Help us bring real accountability to Canadian politics. We say, “if someone breaks the law, they should go to jail”. We mean it, whether it is a former Liberal who steals from the government or our party, or a Conservative trying to steal from you. Send your cheque to the Calgary Nosehill Liberals – Accountability Fund at 108, 5211 – MacLeod Trail SW, Calgary, Alberta T2H 0J3.

Maximum donation is $1,100 (less any other donation made to a Federal Liberal Association). Tax receipt will be issued.

h/t Raymond Reid of York University

TTC Strike In Toronto

By: Contributor · April 28, 2008 · Filed Under Humour, Politics · 5 Comments 

An interesting commentary:

Global Terrorist Threat “Overblown”

By: Contributor · April 26, 2008 · Filed Under Civil Rights, Criminal Law, International Law, Legal Reform, Politics, Pop Culture · 14 Comments 

Don’t believe the hype

Twenty years ago the classic Hip Hop group, Public Enemy, said in their hit song,

don't believe the hypeSome media is the whack
You believe it’s true, it blows me through the roof
Suckers, liars get me a shovel
Some writers I know are damn devils
For them I say don’t believe the hype
Yo Chuck, they must be on a pipe, right?
Their pens and pads I’ll snatch
‘Cause I’ve had it
I’m not an addict fiendin’ for static
I’ll see their tape recorder and grab it
No, you can’t have it back silly rabbit
I’m going’ to my media assassin
Harry Allen, I gotta ask him
Yo Harry, you’re a writer, are we that type?
Don’t believe the hype

It seems we’re facing a similar hype in our generation, but one of a different enemy of the public, the terrorist threat.

At least that’s what John Mueller, Professor of Political Science at Ohio State University, would argue.

Dispelling Terrorist Myths

The Remnants of WarIt started with a piece in 2006 in Foreign Affairs, entitled, Is There Still a Terrorist Threat?: The Myth of the Omnipresent Enemy, published by the Council on Foreign Relations.

Mueller is the author of a 2004 book called The Remnants of War, which claimed since the fall of the Soviet Union warfare is actually obsolete. He argues that problems such as terrorism that the world currently faces are actually forms of civil disorder best dealt with by policing methods.

Mueller attributes in Foreign Affairs a lot of the panic around terrorism to baseless hype,

[I]f it is so easy to pull off an attack and if terrorists are so demonically competent, why have they not done it?…

…One reasonable explanation is that almost no terrorists exist in the United States and few have the means or the inclination to strike from abroad. But this explanation is rarely offered….

…If al Qaeda operatives are as determined and inventive as assumed, they should be here by now. If they are not yet here, they must not be trying very hard or must be far less dedicated, diabolical, and competent than the common image would suggest.

Copycat EffectMueller confirms what rarely heard experts have always been saying – Al Qaeda represents not a specific terrorist entity engaging in direct operational planning, but rather an ideological basis and “support group” for copycats that it would otherwise spawn.

Loren Colemen, author of The Copycat Effect, said,

…research shows potential terrorists become aroused by media presentations of terrorism, accept the violence as justified, and become tomorrowďż˝s suicide bombers.
Contagion terrorism, unfortunately, makes compelling sense when we understand the simple but deadly psychology of the copycat effect. The global attention and blanket media coverage given the 7/7 London terrorist attacks will actually help create tomorrow�s suicide bombers who will feel fully legitimized in their future murder-suicides.

But even the fear of copycats, here at home or abroad, seems disproportionate to the actual threat.

Counting Down Those Freed

Toronto 18Earlier this month, charges were stayed against more of the accused Toronto 18.

Tony Carson of Carsons Posts said,

And that�s the problem: we get the great fanfare of the arrest and nothing much else � except the slow dribble of release announcements. The Toronto 18, at the time, sounded like they needed medical help more than they needed incarceration but we have been simply left to ponder what they were really thinking � and a year later we still don�t know, only that the Toronto 18 are now the Toronto 15 soon to be what? the Toronto 12 � 7� 3� 0?

Actually, we’re already down to 11.

Thomas Walkom of The Star explains the implications,

Seven of the original 18 have had their charges stayed ďż˝ which, in simple English, means the government now admits it never had any real evidence against them.

Those remaining in jail are hoping, at the very least, to get out on bail.

One of the lawyers, Anser Farooq, is calling for a public inquiry as to why an innocent person was kept behind bars for 18 months in solitary confinement.

Terrorism Will Just Fade Away, Unless…

Even if we concede that any of the remaining 11 are guilty of some crime, Mueller provides some important context in an article yesterday in the Ottawa Citizen, Terror Without the Terrorists,

All of these rather hapless, even pathetic, people, should of course be considered to be potentially dangerous. From time to time they may be able to coalesce enough to carry out acts of terrorist violence, and policing efforts to stop them before they can do so are fully justified. But the notion that they present an existential threat to just about anybody seems at least as fanciful as some of their schemes, and any notion that these characters could come up with nuclear weapons seems far fetched in the extreme.

JihadMueller bases his conclusions on Marc Sageman (we’ve quoted him before), author of Leaderless Jihad, and a former intelligence officer with access to classified materials,

The threat presented by these individuals is likely, concludes Sageman, simply to fade away in time. Unless, of course, the United States overreacts and does something to enhance their numbers, prestige, and determination — something that is, needless to say, entirely possible.

This overreaction may have already occurred. But if has not, a drastic shift in policy is needed immediately.

The Best Choice is Proportionality

Proportionality is also required for domestic operations, and community agencies are now calling that the remaining 11 of the Toronto 18 be reevaluated for reasonable bail terms and conditions of solitary confinement.

OverblownMueller is author of his own new book on the subject, Overblown, which argues that the terrorist threat is deliberately exaggerated by politicians and the military industry, who in turn fuel the fear that spreads terrorism.

And this might be why the Sageman solution, which “offers a ray of hope,” may be ignored by politicians to instead economically support the dominant military industry in Canada, a sector that admittedly does add thousands of jobs and millions of dollars to the Canadian economy.

But is that a choice that Canadians, if informed on the subject, are really willing to pay?

Contracts – The Movie

By: Law is Cool · April 25, 2008 · Filed Under Humour · Comments Off 

Sometimes when you’re studying for law exams, you’ll do everything you can to avoid actually reading the text.

Law Is Cool – End of Season 1

By: Law is Cool · April 25, 2008 · Filed Under Administrative, Humour · 2 Comments 

Most of us law students are entering final exam period over the next few weeks.

There will be a considerable slow down during this period. You can expect a few more sporadic posts, but we’ll pick things back up in the summer.

More importantly, we’re looking for new talented and qualified first-year Canadian law students for the 2008-2009 year to join our team. The benefits are immeasurable, and include valuable networking opportunities and informal nation-wide mentoring. Some of us have received job offers an other opportunities through this site.

Contact us at admin[at]lawiscool[dot]com for more information.

And good luck to everyone in their upcoming exams.

law exam

Hillary Clinton’s Amazingly Awesome Victory!

By: Jacob Kaufman · April 23, 2008 · Filed Under Politics · 1 Comment 

Yesterday, Hillary Clinton scored a massive double digit victory over Barack Obama in the Pennsylvania primary!

Except she didn’t.

I’m not saying this because the spread between Clinton and Obama was actually 9.3% (which if I remember math class correctly rounds down to 9% instead of up to 10%).

Nor am I saying this because Pennsylvania was natural Clinton territory and even just a few months back Clinton was running 20 points above Obama:
Hillary Clinton

That’s just trivia.

The real issue is in terms of the numbers game Clinton’s victory didn’t mean anything. Right now the U.S. Democratic presidential campaign is just that: a numbers game. The magic number is 2,024 – that’s the number of delegates needed to clinch the Democratic nomination. Barrack Obama has 1,719 delegates and Hillary Clinton has 1,586 delegates. So how did Clinton’s big surge change the numbers? She got net 12 delegates.


After all the hoopla, the media, the tens of millions of dollars spent she got only 12 net delegates from the primary. For comparison, the last state that voted was Kansas. I don’t remember hearing a lot about Kansas in the news. But Obama got net 14 delegates there. So basically if you take the two states that voted in April, Obama came out two delegates ahead.

That’s not an overwhelming victory for Obama. But look at the total delegate score above. Obama doesn’t need overwhelming victories anymore. Given that delegates are allocated proportionally Clinton is not going to be able to make up that ground.

But what about superdelegates? What about that slew of elected Democratic politicians and party apparatchiks that make up about a fifth of the votes in the convention at Denver? Can’t Clinton use them to win the nomination? Well, right now there are only 259 uncommitted superdelegates. That means that if the uncommitted superdelegates go 3-to-1 for Clinton she’s still losing. Okay, but what if Hillary wins 3-to-1 and maybe peels off some of Obama’s current superdelegats? It’s just as unrealistic as her winning through the states. Here’s a chart from blogger and chef Ezra Klein that shows the movement of superdelegates for Obama and Clinton:

So to wrap it up, Obama has won more states and more votes and it is realistically impossible for Clinton to win the nomination. I should mention though, that some disagree:

Lose Your Life in Law School?

By: Contributor · April 21, 2008 · Filed Under Humour, Law School, Marketing/PR in Law · Comments Off 

Here’s an interesting ad:

They’re selling study-aids, which might just be able to save your life in law school.

Condensed Annotated NoteS (CANS) are probably your only friend in law school.

A Country Run by the Mob(osphere)

By: Law is Cool · April 18, 2008 · Filed Under Administrative Law, International Law, Legal Reform, Marketing/PR in Law, Politics · Comments Off 

When “free speechers” publish letters by lawyers or put legal proceedings online, they themselves are attacking free speech by attempting to intimidate legal proceedings [same applies for when their supporters attack websites].

That’s what John W. Dozier claims, in his American piece on Copyright Rights and Free Speech,

The first intended use is for it to chill the rights of businesses to speak without fear of a mob attack. It is often published to incite an overwhelming force to attack a business in many ways, both legal and illegal, and to intimidate businesses into submission. The publication itself, in this context, is an attack on our free speech rights. Chilling effect is an understatement. The second is even more obvious. If the business decides to move forward, the recipient uses the threat of posting it to gain an advantage in the legal dispute. The threat is not one founded upon the public’s right to know. It is founded upon a belief that the threat of publication of the cease and desist letter will get the recipient a better “financial settlement”, which is often a nice way of saying that “if you pay me off I will stop the attacks and remove the postings about your company, and if not, well, you’ll have to suffer the consequences “. That, my friends, smells of extortion. But it happens every day. These public interest and free speech groups know it…

Dozier terms such collectives as the “mobosphere,” and provides services to clients who are attacked by these organized groups.

The typically American problem has slowly entered Canada by right-wing groups pursuing similar tactics.

But some lawyers are pushing back.

Richard Warman, the lawyer who has championed human rights against neo-Nazi groups before tribunals, is suing a whole slew of far-right blogs claiming they have libeled him.

But Warman has also named the National Post is his proceedings, demonstrating the complex and often incestuous relationship between some publications in Canada and the far-right.

A Far-Right Bias in Media?

Canadians have overwhelmingly suspected and complained of a strong right-wing media bias in our country.

But their concerns have in many ways been confirmed with the presence of Prime Minister Stephen Harper at a party celebrating CanWest Global‘s expansion, led by CEO Leonard Asper. They are now the country’s largest media company, and are even launching their own news wire service to compete with Canadian Press.

Lawrence Martin said in the Globe and Mail,

Their continued ascendancy is a major blow — tilt the message and you gradually tilt the mind — to the left and to moderates. The Aspers make no bones about their conservative bias.

The Aspers attempt to defend themselves by saying that a philosophical bias in no way means a conservative reporting bias. But some would beg to differ.

Robert Fisk of the Independant has raised concerns about bias in the American media. But these are nothing compared to what we see in Canada,

In Canada, the situation is even worse. Canwest, owned by Israel [Izzy] Asper [at the time], owns over 130 newspapers in Canada, including 14 city dailies and one of the country’s largest papers, the National Post. His “journalists” have attacked colleagues who have deviated from Mr Asper’s pro-Israel editorials. As Index on Censorship reported, Bill Marsden, an investigative reporter for the Montreal Gazette has been monitoring Canwest’s interference with its own papers. “They do not want any criticism of Israel,” he wrote. “We do not run in our newspaper op-ed pieces that express criticism of Israel and what it is doing in the Middle East…”

David Beers of The Tyee explains how the Aspers forced their papers to publish editorials from their headquarters, and fired journalists that disagreed with their positions.

Research has shown again and again that “those election issues covered prominently in the news media tend to be perceived by the public as the most important election issues. Items buried tend not to make it on the agenda for public discussion.” Edge says the message is clear: “While the media can not tell us what to think, they are very influential in telling us what to think about. The way these stories are covered not only tell us what to think about, but how we think about it.”

Balance Needed

A true democracy with real freedom of speech requires dialogue on both sides of any debate, what the courts have termed, “the marketplace of ideas.” But even this concept has its limitation, as stated in R v. Keegstra [1990] S.C.J. No. 131,

Freedom of expression is seen as a means of promoting a “marketplace of ideas”, in which competing ideas vie for supremacy to the end of attaining the truth. The “marketplace of ideas” metaphor was coined by Justice Oliver Wendell Holmes, in his famous dissent in Abrams v. United States, 250 U.S. 616 (1919). This approach, however, has been criticized on the ground that there is no guarantee that the free expression of ideas will in fact lead to the truth. Indeed, as history attests, it is quite possible that dangerous, destructive and inherently untrue ideas may prevail, at least in the short run.”

Courts have also recognized that when dealing with vulnerable minorities, an equal exchange may not always be possible. Irwin Toy Ltd. v. Quebec (Attorney General) examined the vulnerability of children, for example, at the hands of corporations,

The concern is for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising…
Thus, in matching means to ends and asking whether rights or freedoms are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck. Vulnerable groups will claim the need for protection by the government whereas other groups and individuals will assert that the government should not intrude. In Edwards Books and Art Ltd., supra, Dickson C.J. expressed an important concern about the situation of vulnerable groups (at p. 779):
In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.

A Dangerous Threat

Izzy Asper is the same individual who wanted to move the capital of Canada from Ottawa to his hometown Winipeg, obviously in complete disregard to the importance of Quebecois in Canadian society. He would strangely lobby from within the Liberal party, while making significant financial contributions to the Conservatives.

The company, now run by Izzy’s son, poses such a threat to Canadian society that some have written entire books on it. Marc Edge is the author of Asper Nation: Canada’s Most Dangerous Media Company.

Beers asks,

But even if CanWest owns dozens of newspaper across the nation along with Global TV and other television stations reaching 94 per cent of all Canadians, and even if CEO Leonard Asper has said he aims to make his company one of the top five media companies on the planet, how much torque can the Aspers really put on our democratic process?

Enough, it seems. What’s really scary is how these perspectives may change the fabric of Canada itself. Martin says,

You alter the character of a country by changing how it sees itself. You can change how it sees itself by changing the character of its media. Led by the Aspers, the character of Canadian media is changing.

Modern history has seen fascism, communism, brutal dictatorships, and liberal democracies. What exactly would we call a political system that is run by the media?

The 20th c. had the mafia and the mob. The 21st c. might just have the mobosphere, unless the public and politicians are alerted to this potential threat.

1L Contract Song

By: Law is Cool · April 17, 2008 · Filed Under Humour, Law School · Comments Off 

From Utah Law.

Free Mumia – Not an American Gangster

By: Law is Cool · April 17, 2008 · Filed Under Civil Rights, Constitutional Law, Criminal Law, International Law, Legal Reform, Politics, Pop Culture · 1 Comment 

Fry That What?

The case of Mumia Abu Jamal, on death row in Pennsylvania for killing a white police officer in 1981, is raising some interesting issues surrounding jury selection.

The court found that the prosecution used two-thirds of its vetoes to deliberately remove persons of colour in a county that consisted primarily of minorities. The resulting jury was 9 whites and only 3 African-Americans.

Although the issue of race selection was raised at trial, the judge there stated he was,

…going to help’em fry the nigger.

Recent Dissent

The recently released decision in Abu-Jamal v. Horn stated in dissent,

Excluding even a single person from a jury because of race violates the Equal Protection Clause of our Constitution. See Batson v. Kentucky, 476 U.S. 79, 84-86, 99 n. 22, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This simple justice principle was reaffirmed by our Supreme Court this past week. Snyder v. Louisiana, No. 06-10119, 2008 WL 723750, at *4 (Mar. 19, 2008)

No matter how guilty one may be, he or she is entitled to a fair and impartial trial by a jury of his or her peers. As Batson reminds us, “[t]he core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of . . . race.”ť Id. at 97-98. I fear today that we weaken the effect of Batson by imposing a contemporaneous objection requirement where none was previously present in our Court’s jurisprudence and by raising the low bar for a prima facie case of discrimination in jury selection to a height unattainable if enough time has passed such that original jury records are not available. In so holding, we do a disservice to Batson. I respectfully dissent.

Counsel for Mumia stated,

A new jury trial has been ordered by the federal court on the question of whether Mumia should be sentenced to life or death, due to the trial judge’s unconstitutional and misleading instructions to the jury. It is a positive step in any capital case when a court finds that the death penalty was wrongfully imposed. Mumia is pleased with this part of the ruling because it could help others on death rows across the U.S. The prosecution now has various options including seeking reconsideration by the federal court and petitioning the U.S. Supreme Court to have the death sentence remain intact.

American GangsterLessons from an American Gangster

In American Gangster, the notorious drug dealer Frank Lucas (played by Denzel Washington) is scolded by his mother,

Everbody knows you don’t kill cops.

So why then Mumia?

The real Frank Lucas reported in an interview with HOT 97 FM that that he was extorted by corrupt cops for $200,000 a week.

By 1977, 52 of the 70 officers in the NYPD Special Investigation Unit were in jail or under indictment due to Lucas’ testimony.

Russel Crow plays Richie Roberts in the movie, “seemingly the only honest detective in New York,” and is warned by his partner early in the movie.

They find $1 million and Roberts wants to turn it in, but his partner says that cops that turn in that much money also turn in other cops, and,

…cops kill cops they can’t trust.

But it was Lucas that actually put a hit out on Richie Roberts, a scenario that is surprisingly similar to that of Mumia’s case.

Newer Evidence

Decades after the initial trial, there is some disturbing evidence regarding Mumia that has raised some flags.

An affidavit of Arnold Beverly declared that he shot the officer in question as part of a contract killing on behalf of the mob and corrupt members of the police force.

The officer had been interfering with payments to police involved in prostitution, gambling and drugs and other unsavoury business.

Despite the confession of this American gangster, the evidence was considered not admissible due to the witness’ criminal record and delays in producing it.

But there’s more.

A 2002 declaration by Yvette Williams stated that one of the key witnesses, who was a known paid informant for the police, revealed to her while they were both in protective custody that she testified against Mumia under duress of threats by police and vice.

Other witnesses are alleged to have recanted their testimony, and medical documents and staff have undermined other claims by the Crown to Mumia’s confession.

But it’s the now affirmed tainted jury pool, previously rejected by Mumia’s adversaries, that now leds greater credence to all their other claims.

Racial Bias in the Courtroom

Human Rights Watch review of the U.S. in 1996 found,

The scheduling of Mumia Abu-Jamal’s execution by the state of Pennsylvania for August 17, 1995, sparked an international campaign for clemency in his case. Abu-Jamal, a former radio journalist and African-American political activist, had remained on death row since 1982 when he was convicted_amid widespread accusations of racial bias in the courtroom, inadequate representation, and prosecutorial misconduct_of the 1981 killing of a Philadelphia police officer. Abu-Jamal continued to proclaim his innocence. The governments of Germany and Belgium appealed to U.S. authorities on his behalf, President Chirac authorized the French ambassador to Washington to take “any step that might help to save the life of Mr. Mumia Abu-Jamal,” and Italian parliamentary deputies passed a Lower House motion urging their government to press the United States to lift Abu-Jamal’s death sentence. Although the governor of Pennsylvania rejected all intercessions, a court of common pleas judge granted a stay of execution to enable Abu-Jamal to complete his appeals process.

The Fraternal Order of Police, instead of providing greater scrutiny to their own ranks, have organized an economic boycott against anyone who dare question Mumia’s case.

Abu Jamal is an iconic figure among civil rights groups who protest a racial bias in the justice system, and a victim of politics that continue to this day.  Irrespective of his guilt or innocence, the trial of Mumia Abu Jamal has itself been characterized by controversy and racism that speak to legal reform.

He even features prominently in the underground hip-hop community, who have collaborated to call for his release.

Hear Mumia on war and Canadian drugs (starting at 2:00), recorded while on death row:

h/t sketch thoughts

Site Down Again

By: Law is Cool · April 15, 2008 · Filed Under Administrative · 2 Comments 

Our site was apparently hacked again last night. In addition to uploading spam content, they also deleted all plug-ins and several pages, including the ones on the Macleans case and Blawger of the Year Daniel Simard.

We seem to encounter these problems every time we post something critical of Steyn, which we find unfortunate.

We’ll try to restore the site over the summer, but for now it seems we’re temporarily out of service while we go through exams.

Update: We’re back. The problem appeared to be an old version of WordPress, which allowed the Steyn supporter hacker to delete files and access our controls.

Thanks to BigCityLib and others on the blogosphere that expressed concern.

A very special thank you to those who helped us get back up running so quickly, including Scott Tribe of Progressive Bloggers, and Lawrence Gridin of UWO Law (we just recruited him for the team).

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