Reform Teams Must Fight for the Dream, But Much Better

Supreme CourtAs the Supreme Court began its annual term on Oct. 3, I'd like to share suggestions below on how legal reformers -- our team, in other words -- can be much more effective in achieving results. That’s the dream. But the reality is that we face huge challenges that require new approaches to fight due process violations and other wrongdoing that appears to extend high into the legal system. These days, the general principles converge in the person of Clarence Thomas -- associate justice of the U.S. Supreme Court and someone whom the FBI should vigorously investigate.

Like many, I thought about due process issues after Georgia executed Troy Davis on Sept. 21 despite powerful evidence casting doubt on the witness identifications prompting his conviction for a fatal shooting of an off-duty policeman. I published a column, Troy Davis, Clarence Thomas and Georgia on Our Minds.” Organizers of an Oct. 1 street rally in Washington, DC then asked me to suggest practical next steps following hundreds of thousands of petition signatures protesting the execution. The next day, I reflected more about this during annual Red Mass ceremonies in Washington celebrating the law's spiritual dimensions. Led by Archbishop Donald Cardinal Wuerl, Catholic church leaders hosted six of the nine Supreme Court Justices – including Thomas and a likely majority of those who allowed Georgia to execute Davis. Other guests included White House Chief of Staff William Daley, Defense Secretary Leon Panetta and Transportation Secretary Ray LaHood.

At first impression, Saturday’s street rally had little in common with the magnificent service Sunday about 15 blocks away at the upscale Cathedral of St. Matthew the Apostle. The 50 or so at the street rally were primarily black, modestly dressed, and strongly left-wing in politics. About half wore an “I am Troy Davis” sticker or similar tee-shirt to show solidarity with the executed man. Via a taped jailhouse interview by WPFW before his death, they heard Davis speak humbly about his wasted life, innocence and hopes for young people to avoid his mistakes in hanging out with the wrong crowd to be "cool." The crowd doubled by the time the march reached the St. Stephen & The Incarnation Episcopal Church, with the demographics remaining roughly the same.

Red MassThe audience at the Catholic service, by contrast, appeared to be about 1,000 in size and at least 95% white. The absence of all three female Supreme Court justices, each of whom is a Democrat, underscored a political dimension. More generally, the ceremony began with a magisterial

of clergy and government powers. Incense and beautiful music soon filled the huge cathedral, which was built in 1899 and is famous for, among other things, the 1963 memorial service for President Kennedy.

But here’s why common ground is both possible and points the way to reform. Let’s start with my suggestions to the Troy Davis supporters:

1.    Keep reaching out with one-on-one conversations, petitions, demonstrations and pressure for legislation.
2.    Confront rights violations and corruption wherever trail leads -- even to the top or within our own ”Team”
3.    Expand "The Team" by gaining new allies.
4.    Become the media, don’t wait for it.
5.    Keep fighting for what’s right.

The ideas may seem too obvious to mention. But several twists during the last few days underscore the opportunities and pitfalls.

Reaching Out

To begin on a positive note, I told those at the rally how my involvement with the Troy Davis and other death penalty protests began with word-of-mouth encouragement from friends, as described in my column last week. Trusted, private communications are an obvious way to prepare for rallies, petitions and protests -- including such current ones as "Occupy Wall Street” occurring now in New York, and a similar protest planned Oct. 6 in Washington.

Attack Due Process Violations and Corruption

Much harder is my second suggestion to fight for a rule of law when suspicions involve high-ranking officials -- and even those within our own political party or "team" suspected of serious shortcomings or fraud.

Clarence ThomasThe most important such instance involves Clarence Thomas, left, whose two decades on the court this year were exposed as compromised by a host of financial and false statement scandals that require a serious criminal investigation. Last week, 20 congressional Democrats demanded just that in a Justice Department investigation. Thomas is a Republican. But Republicans should support such a probe to clear the air on such claims, which appear to be roughly comparable to those that forced the 1969 resignation of Associate Justice Abe Fortas. My overview Sept. 30 of the financial concerns is in several related articles appended below. But there is vastly more information available that deserves authoritative review, pro or con.

What’s most relevant now is the silence of many civic reform groups. For tactical, financial or partisan reasons, they tend to wait for someone else to make the most serious allegations against officials who are high up on the power structure, even when many commoners are imprisoned around the country for roughly similar conduct.

I’ve heard the excuses, but don’t buy them. The public is fed up with Washington corruption, cover-up and partisanship. The slogan “Lead, follow or get out of the way” has never been more timely. I’ve already written about the catalog of alleged horrors involving Thomas, and plan to write much more. Beyond that, the Obama administration has failed to investigate corruption, due process violations and cover-up that plagued the Bush administration. As a result, it is now deeply implicated in many of the scandals, including some of their own.

Elena KaganThe Obama administration’s early insensitivity to due process was why our non-partisan Justice Integrity Project opposed the confirmation of Democratic Supreme Court nominee Elena Kagan, right. It’s also why protests remain justified against the government’s horrid violations of our privacy in warrantless telephone, email and airport searches. Also, the Obama administration has cooperated in the prosecution of Don Siegelman and Richard Scrushy, the most notorious of the Bush partisan frame-ups. Obama personnel have even argued that the government has the right to frame innocent people without court review. This was in the 2009 case of Pottawattamie County v. McGhee, in which the Obama Justice Department argued there is "no freestanding right not to be framed."

The latest outrage is the drone-killing of Anwar al-Awlaki and another U.S.citizen in Yemen on Presidential say-so, with no court or other review of evidence. I watched the arguments in Washington's federal court. This led a federal judge to rule that the suspect's father had no right to challenge a Presidential death order because it is a "political question" beyond the power of the Constitution. A case analysis is here, and expert legal commentaries are below.

Expand 'The Team' with New Allies

Fortunately, I see on a regular basis in my work how productive alliances can be reached. My investigative sources against Republicans include courageous whistleblowers within that party, and vice versa regarding Democratic wrongdoing.

Antonin ScaliaLet me use the Red Mass Sunday as an example, starting first with a brief bit of history. The ceremony began in medieval times. It is fostered in Washington by the John Carroll Society. It is named after the nation’s first Catholic archbishop, who was a pioneer also in advocating at the Constitutional Convention for separation of church and state, among other legal principles. Such a tradition can inspire. Speakers Sunday included Seattle Archbishop J. Peter Sartain and the Rev. Monsignor Peter J. Vaghi, the Society chaplain who spoke at a brunch after the mass.

More informally, Cardinal Wuerl and Associate Justice Antonin Scalia, left, for example, were among those readily approachable for brief greetings from me or anybody else. By contrast, Justice Thomas, was virtually alone in promptly darting from his front table out a side door as the brunch concluded so that he need not endure any chance encounters. That’s his privilege of course, but over time it becomes part of his public image. More important than that personality snapshot was my opportunity before and after the ceremonies to exchange with other attendees insights about Thomas, suspicious developments in the Obama administration, and practical tips on the overall viability of reform efforts.

In sum, corruption and civil rights abuse are now far too widespread in the system to be exposed -- much less uprooted -- merely by partisan initiatives, much less an attack by “have-nots” against the “haves.” The Power Structure didn’t get its name for nothing. But most people on some level want to help country if fairly approached. Even Thomas, by all accounts, loves to exchange ideas with fellow conservatives, chat up court cafeteria personnel and other ordinary citizens whom he encounters in truly random ways, and reach out to children to inspire them.

Paul Craig RobertsBe 'The Media'

As an additional tip for both judicial system reformers and victims alike, I’d suggest becoming part of "the media” instead of waiting for a professional to take interest. Almost every day I’m approached by someone who wants me to document a sad case history. But vast numbers of abuses and hardships exist. What is a reader going to do except tune out?  Even most victims don’t have time to read about those in a similar plight, much less help each other. On Oct. 3, OpEd News published a blog on this point by Dr. Paul Craig Roberts, shown at right. He is a distinguished scholar, former Wall Street Journal opinion editor and Reagan Administration official once highly influential among other powerful figures before he ramped up criticism of federal authorities. His most recent column, The Day America Died, says:

Readers ask me what they can do. Americans not only feel powerless, they are powerless. They cannot do anything. The highly concentrated, corporate-owned, government-subservient print and TV media are useless and no longer capable of performing the historic role of protecting our rights and holding government accountable.

If one thinks through the economics of today’s media it’s clear why “beat reporters” covering courts for newspapers, my job for five years, are increasingly dependent on prosecutors for information. For that and other reasons, complainants should learn to make their points concisely in published reader comments or other action-oriented  communications in a three-part formula: 1) relevance to the topic of discussion; 2) summary of situation; and 3) what should a sympathetic reader do?

Almost any publication would print such a message, especially if it’s just three or four sentences. Presto! The victim is part of the media through self-help. Perhaps that’s not the get-of-jail-card or book deal that’s desired. But it’s a start – and very few benefit in major ways even if with a story is recounted at full-length by the mainstream media or a blog. To the contrary, my observation is that authorities try extra hard to seek ways to punish intended targets who manage to arouse public sympathy or void most of their original charges on appeal. Four of the prosecutions I’ve explored illustrate such reprisals: Those against Republicans Bernard Kerik and Charles Spadoni, and Democrats Siegelman and Louis Manzo, each available for examination on the “leading cases” section of our website.

Keep Fighting

Finally and most important, don’t give up the fight. George Washington, Thomas Jefferson and John Carroll are among those who took big risks, and so should we. Those at the street rally last weekend chanted, “I am Troy Davis” with the understanding that we are all vulnerable to misidentification or other procedural injustices. That’s seems to be the view also of one-time arch-conservative Lord Conrad Black, once one of the top media barons in the English speaking world, Now, as illustrated in the appendix below, he is reduced to blogging from prison about his book describing the injustices of authorities.

Additional common ground is certainly possible. Here is the counsel from Cardinal Wuerl at the end of the John Carroll Society Red Mass brunch last weekend. He was speaking generally, of course, but that invites application to specific problems at hand:

“Invite someone else back to what we do,” Washington’s Archbishop told the civic- and spiritually-minded audience, citing inspiration from Pope Benedict XVI. “There is a better way, and I invite you to be a part of it.”

 


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Below are articles relevant to the column above. See the full article by clicking the link.

Scandal and Call for Investigation

Counterpunch, Supreme Court Scandal Widens: Koch Entertained Justice Thomas At His Private Club, Pam Martens, Oct. 3, 2011. For the past three years the U.S. has been served up a heaping dose of free market creative destruction that is the sine qua non of legions of corporate funded front groups. First Wall Street, then housing, now the nation’s highest court have been brought low by its force. As it turns out, creative destruction is 90 percent corruption and 10 percent creative.ccc

Common Cause / Alliance for Justice, Citing new evidence, Common Cause and Alliance for Justice urge formal investigation of Justice Thomas’ disclosure failures, Oct. 5, 2011. Citing new evidence, Common Cause and Alliance for Justice urge formal investigation of Justice Thomas' disclosure failures . Emerging details about gaps in annual financial disclosure reports filed by Supreme Court Justice Clarence Thomas suggest that the justice deliberately withheld information required by federal ethics laws, Common Cause said today.  “There is now more than enough evidence to merit a formal inquiry as to whether Justice Thomas willfully failed to make legally required disclosures, perhaps for as long as 13 years,” said Bob Edgar, president of the non-profit government watchdog group. A s a result, Common Cause joined with Alliance for Justice on Wednesday, in a letter asking the U.S. Judicial Conference to refer the matter to the Attorney General for possible action under the Ethics in Government Act. Emerging details about gaps in annual financial disclosure reports filed by Supreme Court Justice Clarence Thomas suggest that the justice deliberately withheld information required by federal ethics laws, Common Cause said.

Red Mass

Associated Press, Supreme Court justices attend Mass before new session, Oct. 2, 2011. Six of the nine members of the U.S. Supreme Court have attended the annual Red Mass before the beginning of their new session.

New York Times, Red Mass Marks Start of Supeme Court Session, Will Storey, Oct. 2, 2011. In 58 years, the Red Mass, held the first Sunday of October at St. Matthew’s Cathedral in Washington to kick off the Supreme Court session, has gone from a token ritual to a power conclave. When the Mass started in 1953, there were no Catholic members of the Supreme Court. The service’s traditional “Catholic seat” had to be filled at the time by Justice Sherman Minton, a Protestant whose wife was Catholic. Today, there are six Catholic justices, three Jewish justices and, for the first time in history, no Protestant justices. On Sunday, the ceremony was attended by five of the Catholic justices — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Samuel A. Alito Jr. and Anthony Kennedy — plus Justice Stephen Breyer, who is Jewish. (Justices of other faiths sometimes attend as a sign of respect.)

CNN, Justices Attend Toned-Down Red Mass, Laurie Ure, Oct. 2, 2011. (Video).  A half dozen Supreme Court justices, hundreds of members of the legal profession and other dignitaries attended the annual Red Mass in Washington Sunday to hear what amounted to an uncharacteristically noncontroversial service. Chief Justice John Roberts joined associate justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito for the service at the Cathedral of St. Matthew the Apostle, a beautifully ornate church located a few blocks from the White House. All are Roman Catholic except Breyer, who is Jewish. The current Supreme Court is composed of six Catholics and three Jews.

Obama Civil Liberties Abuses Claimed

OpEd News, President Obama has been a disaster for civil liberties, Jonathan Turley: Oct. 1, 2011. One man is primarily responsible for the disappearance of civil liberties from the national debate, and he is Barack Obama. While many are reluctant to admit it, Obama has proved a disaster not just for specific civil liberties but the civil liberties cause in the United States.

OpEd News, The Day America Died, Paul Craig Roberts, Oct. 3, 2011. September 30, 2011 was the day America was assassinated. Many expected President Obama to re-establish the accountability of government to law. Instead, he went further than Bush/Cheney and asserted the unconstitutional power not only to hold American citizens indefinitely in prison without bringing charges, but also to take their lives without convicting them in a court of law. Obama asserts that the US Constitution notwithstanding, he has the authority to assassinate US citizens he deems to be a "threat," without due process of law. In other words, any American citizen who is moved into the threat category has no rights and can be executed without trial or evidence.

Glenn GreenwaldSalon Unclaimed Territory, So much evidence, there’s no need to show it, Glenn Greenwald, Oct. 3, 2011. During the NSA eavesdropping controversy, Bush defenders insisted there was no harm from bypassing the FISA court because they were only eavesdropping on Bad Terrorists (who could possibly object to that?). Now that hordes of Obama defenders are running around justifying the President’s due-process-free assassination of U.S. citizen Anwar Awlaki based on exactly the same claim and mindset — our President targeted a Very Bad Terrorist, so no due process or disclosure of evidence was needed — the same question obviously arises. Please watch this amazing video of ABC News‘ Jake Tapper persistently questioning a stonewalling, imperious White House spokesman Jay Carney about this issue.

Justice Thomas Abuses Claimed

Justice Integrity Project, 20 Dem Reps: DOJ Should Investigate Clarence Thomas, Andrew Kreig, Sept. 30, 2011. Twenty Democratic members of Congress wrote federal judicial authorities on Sept. 29 to request a formal Justice Department probe of Supreme Court Associate Justice Clarence Thomas for long-term failures to disclose junkets, other gifts and income.

New York Times, Thomas' ties to a Texas real-estate baron named Harlan, Mike McIntire, June 27, 2011. The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas. In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.

Legal Schnauzer, The Road from Clarence Thomas to Harlan Crow Runs Close to Home, Roger Shuler, June 27, 2011. Mounting evidence indicates Justice Clarence Thomas is so ethically compromised that he should be removed from the U.S. Supreme Court. The latest evidence comes from a New York Times piece about Thomas' ties to a Texas real-estate baron named Harlan Crow. We have discovered that the Thomas/Crow story, in a roundabout way, links to one of our storylines here at Legal Schnauzer. In fact, our story is about judicial chicanery in Alabama, the kind that favors the wealthy over regular citizens. That theme should sound familiar if you have been following the trail of Clarence Thomas' numerous ethical lapses. And it raises this question: How far will some wealthy Americans go to buy justice?

Legal Schnauzer, Will Clarence Thomas get away with a federal crime? Roger Shuler, Jan. 25, 2011. U.S. Supreme Court Justice Clarence Thomas is amending financial-disclosure forms dating back more than 20 years, in an apparent effort to avoid prosecution for making false statements to the United States government. Hal Neilson, an FBI special agent in Oxford, Mississippi, undoubtedly wishes he had been given such an opportunity. He also probably wishes the mainstream press would try to make the kind of excuses for him that are being made for Clarence Thomas.

Protest By Media Baron Conrad Black

Conrad Black Book CoverHuffington Post, My Destruction by Murdoch, Conrad Black, Sept. 27, 2011. In 2007, I was convicted of fraud and sentenced to six-and-a-half years of imprisonment. At the time I was ranked as the third largest newspaper magnate in the world.... My prosecutors began with a demand for life imprisonment and fines and restitution of $140 million…No sane, fair-minded person could possibly now believe that I was guilty of any crime, and no similarly endowed person, writing from the vantage point I do, could have endured this persecution for over eight years without it diluting his affection for the United States.

National Post, Jonathan Kay on Conrad Black and his new book: A man in full pay-back mode, Sept. 3, 2011. Once a cultural elitist, Mr. Black now prefers the company of jailbirds to the hypocritical “habitués of the boxes at the Metropolitan Opera House and the most exalted socioeconomic echelons of the Style section of the Sunday New York Times.” Once an unabashed defender of laissez-faire capitalism, he now depicts the U.S. financial sector as a late-stage Rome plagued by massively overpaid pin-striped parasites siphoning off the nation’s wealth through money-churning schemes and outright fraud. Once a “rabid” cheerleader of American democracy, he now denounces the cruelties of the country’s legal “prosecutocracy” and prison-industrial complex. By Mr. Black’s estimation, up to 20% of prisoners in American jails have done absolutely nothing illegal to merit their sentences. A decade ago, these forfeit lives meant nothing to him. But in prison, they became his meal companions and students; and their tall tales, street wisdom and outsider posturings have shaped his worldview and attracted his sympathy.

Allegations Covering Bush-Obama Justice Department

Harper’ No Comment, When Prosecution Becomes Persecution, Scott Horton, Sept. 27, 2011. Richard J. Oppel has just published a piece in the New York Times detailing the rising prominence of plea bargains in the U.S. criminal-justice system. Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

Troy Davis Execution

Associated Press / Atlanta Journal Constitution, Georgia death case grieves families on both sides, Russ Bynum, Sept. 17, 2011. An elite Army Ranger, Mark MacPhail left the service and became a police officer to spare his wife and young children from the base-hopping life of a military career. Troy Davis dropped out of high school in his senior year to help care for his younger siblings, including a sister stricken with multiple sclerosis. Both men inspired unwavering love and loyalty in their families that still runs deep more than two decades after one summer night forced the Davises and the MacPhails to opposite sides of a long legal battle that could end next week in a Georgia prison death chamber.

Presidential Order Kills Citizen

Judge John BatesSalon / Unclaimed territory, The due-process-free assassination of U.S. citizens is now reality, Glenn Greenwald, Oct. 1, 2011. It was first reported in January of last year that the Obama administration had compiled a hit list of American citizens whom the President had ordered assassinated without any due process, and one of those Americans was Anwar al-Awlaki. No effort was made to indict him for any crimes. When Awlaki’s father sought a court order [from U.S. District Judge John Bates, right] barring Obama from killing his son, the DOJ argued, among other things, that such decisions were “state secrets” and thus beyond the scrutiny of the courts. He was simply ordered killed by the President: his judge, jury and executioner.

Media and Anti-Wall Street Demonstrations

Salon / Unclaimed Territory, What's behind the scorn for the Wall Street protests? Glenn Greenwald, Sept. 28, 2011. It's unsurprising that establishment media outlets have been condescending, dismissive and scornful of the ongoing protests on Wall Street.  Any entity that declares itself an adversary of prevailing institutional power is going to be viewed with hostility by establishment-serving institutions and their loyalists….In sum, there is a sprawling apparatus of federal and local militarized police forces and private corporate security designed to send this message: if you participate in protests or other forms of dissent outside of harmless approved channels, you're going to be harmed in numerous ways.

Federal Prosecution of Don Siegelman

Justice Integrity Project, Siegelman’s Sentence Delayed As DOJ Hides Data, Andrew Kreig, Sept. 23, 2011. The Alabama judge presiding over the notorious Bush prosecution of former Gov. Don Siegelman postponed the defendant’s re-sentencing last week while prosecutors continue to stonewall defense requests for documents showing whether federal prosecutors violated the defendant's right to an honest, unbiased prosecutor.

Justice Integrity Project Opposition to Democrat Elena Kagan's Confirmation

Justice Integrity Project,

">Jersey Democrat Louis Manzo, Justice Integrity Project Urge ‘No’ On Kagan, Citing Rights Concerns, July 19, 2010 (Video).


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