Archive for the ‘Speedy Trial’ Category

An Endless Trial

Friday, March 11th, 2011

We started yet another trial this week, and it’s looking like it will continue into the first week of April.  Not our longest trial ever, but fairly lengthy for a state case.  But at least it’ll be over before the trial of Raj Rajaratnam, which also began this week, and which is expected to last through the beginning of May.

But these are nothing compared to the trial of Charles Taylor, former head of Liberia.  This is the same guy who ran for election with the campaign slogan (not making this up): “He killed my ma / He killed my pa /But I will vote for him.”  Probably a thinly-veiled threat that those who didn’t vote for him would get the same treatment.

Taylor first came to prominence in 1980, when he took part in the coup led by Samuel Doe.  Whose government he soon ripped off in a massive embezzlement scheme.  He fled to the U.S., got picked up and thrown in prison, and made a daring prison escape before he could be extradited in 1985.  He high-tailed it to Libya and the protection of Muammar Gaddaffi, and went through some terrorist training camps.

With funding from Gaddaffi, he organized a rebellion against the Liberian government in 1989.  The civil war would rage for seven years, utterly destroying the country.  Slaughter, fear and lawlessness made Liberia the classic “failed state.”  There was no government, only destruction.  (A State Department official we knew at the time said it was no good trying to reach anyone in charge there.  “The phone’s just going to ring and ring, because there’s probably bullets flying through the office and they’re hiding under their desks.”)  The word “horrifying” doesn’t begin to describe what was going on throughout the ’90s there.

In 1997, Liberians elected him president in the vain hopes that this would avoid any more civil war.  But within two years, it was raging again.

But none of this is what he got in trouble for.

Apparently, Liberia wasn’t exciting enough, so he got involved in the horrors over in Sierra Leone.   During his own civil war, Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone.  Because the government there was so corrupt, it had no real resources, and there was pretty much no economy.  So they couldn’t really fight back.  Still, they wound up having their own brutal civil war throughout the 90s.  A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Meanwhile, the Special Court for Sierra Leone managed to file an indictment against Charles Taylor for war crimes and crimes against humanity, based on what he did in Sierra Leone.

He was indicted in 2003.

His trial just ended today.

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Even if you take into account the fact that he hid out in Nigeria until finally being arraigned in 2006, and the fact that the trial proceedings themselves didn’t really begin until 2007, we’re still talking a four-year trial.  That’s a long time to hear a case.

And the trial isn’t really technically over, anyway.  Just the evidentiary part is over.  The judges are going to take the next several months before rendering their verdict.

This thing ain’t ever going to end.

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Whether he’s guilty or not — and we haven’t seen the actual (more…)

Prosecutorial Extortion

Monday, June 7th, 2010

 

Extortion is a kind of threat.  A threat that’s so bad, it’s criminal.  For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests.

Threatening to kill a child if the parents don’t give you money, for example, would be extortion.  So too would be a civil lawyer’s threat to file criminal charges — even if such charges are warranted — if the other side doesn’t pony up with a settlement.  Another example is when a government official threatens to use his position to do something he’s perfectly entitled to do in the first place, unless the victim does him a favor first.

There are lots of examples of extortionate behavior.  But these last two examples demonstrate that the threatened action doesn’t itself have to be against the law.  The civil lawyer could go ahead and press criminal charges, but threatening to do so is against the law.  Ditto for the government official whose threat to merely do his job is a crime.  The point isn’t whether the threatened action is itself criminal, but whether the threat causes such fear as to override someone’s free will.

This is basic stuff.  Not exactly cutting-edge law here.

So how come nobody seems to have litigated the Queens (New York) District Attorney’s practice of extorting speedy trial waivers from defendants?

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In New York, there are a few different kinds of (more…)

Assigned Counsel are Not Government Actors? This is News?

Tuesday, March 10th, 2009

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The Supreme Court ruled today that defense attorneys assigned by the state are not government actors, merely because the government assigns and pays them. They are attorneys for the defendant, and their actions are actions of the defense, not the government.

This seems like a no-brainer. Every defense attorney knows that his obligations are to his client, regardless of who is paying the bill. But apparently the Vermont Supreme Court needed to be reminded of this fact by a 7-2 decision of the Supreme Court.

Michael Brillon was arrested in 2001, and had at least six different lawyers over the next three years, before finally being convicted after a jury trial and sentenced to 12-20 years. Before trial, Brillon moved to dismiss for speedy trial violations.

The trial court said the delay was caused by Brillon, and denied the motion. The Vermont Supreme Court reversed, saying that at least two of the three years should be charged against the state, because those delays were caused court-appointed defense attorneys. The remaining year, where delays were caused by retained counsel for the defense, was not chargeable against the state.

Writing for the majority in Vermont v. Brillon, Justice Ginsburg stated that the Vermont Supreme Court’s error was in thinking that assigned counsel are state actors in the criminal justice system. Assigned counsel, just like retained counsel, act on behalf of their clients, so delays they seek are ordinarily attributable to the defense.

The Vermont court had tried to assess whether the delay was to be blamed more on the government or on the defense. Because assigned counsel were paid by the government, Vermont felt that they were government actors, so their delay should be charged to the government. But the Supreme Court was obliged to point out that an attorney is the defendant’s agent, regardless of whether the attorney is privately retained or publicly assigned.

This is such a fundamental point, it is amazing that it got this far. Justice Ginsburg took the time to explain that Vermont’s error was such a fundamental misapplication of Barker v. Wingo that the Supreme Court had to step in to correct it.

Justice Ginsburg did leave open the possibility for public defender delays to be chargeable against the state, but only when such delays are caused by a “systemic breakdown” in the public defender system, some sort of institutional problem actually attributable to the government. That wasn’t the case here.

Justices Breyer wrote a very interesting dissent, in which Justice Stevens joined, highlighting some of the unspoken realities of how the Supreme Court works. They did not disagree with the ruling itself, but rather believed that certiorari had been improvidently granted. The issues turned out to be not as clearly defined as originally presented, and there were ambiguities in the Vermont Supreme Court’s decision, so that it did not necessarily misapply Barker v. Wingo unless one wanted to read it that way. Justice Breyer basically said the Court accepted and decided this case because the majority justices wanted to, so very badly.