In the eye of Newt

Back in December of last year I wrote a post about a conservative group that recognizes the current right wing mantra of "lock 'em all up," isn't working. The name of the group was Right on Crime. And who is one of the people behind Right on Crime?

If you guessed Newt Gingrich, you are correct.

Only, as the law profs over at Sentencing Law and Policy point out, you'd never know it from the campaign rhetoric.

From the Right on Crime website is a reprint of an editorial written by Mr. Gingrich and Mark Earley about how to cut down on recidivism. I'll include some of the highlights.

If two-thirds of public school students dropped out, or two-thirds of all bridges built collapsed within three years, would citizens tolerate it? The people of Georgia would never stand for that kind of failure. But that is exactly what is happening all across the U.S. in our prison systems. 

Last year, some 20,000 people were released from Georgia’s prisons to re-enter our communities. If trends of the past decade continue, two-thirds of them will be rearrested within three years. That failure rate is a clear and present threat to public safety. 

Not only is this revolving door a threat to public safety, but it results in an increasing burden on each and every taxpayer.

What those on the right don't seem to realize is that if you want to lock someone up and throw away the key, someone's got to foot the bill. Either you have to spend more money to run the state or you have to find the funds from someone else's basket.

Just as a student’s success isn’t measured by his entrance into high school but by his graduation, and a bridge’s value isn’t measured by its completion but by its long-term reliability, celebrating taking criminals off the street with little thought to their imminent return to society is foolhardy. 

The key to public safety and fiscal sanity is not just getting dangerous people off the streets but also making sure that men and women who eventually leave prison have changed and can stay crime-free on the outside.

Another thing the right wingnuts don't seem to think about is what to do with folks once they get out of prison. You can't just turn them back out on the street because they are virtually unemployable due to their criminal record. If you don't offer some type of assistance they will be forced to return to a life of crime just to survive.

Now, of course, the editorial then morphs into an advertisement for (yet another) religion-based organization with its hands out asking the state for funds.

But, aside from the plug, at least someone on the right of the political spectrum is looking beyond mere campaign rhetoric and actually asking how might a problem be solved. I may not care for Mr. Gingrich's politics in general, but, I do applaud his willingness to think outside the box when it comes to the problems in our criminal (in)justice system.

Book Review: Popular Crime

Those of y'all who have more than a passing interest in baseball know who Bill James is. Mr. James practically created the algebra we use to analyze hitters and pitchers.

But Bill James has a hobby outside baseball - he's addicted to true crime stories. So addicted, in fact, that he decided to write a book about our fascination with them. The result is Popular Crime. The book takes us on a whirlwind tour of every "crime of the century" over the last 150 or so years.

His theory is you can really learn something about the history of a people by studying the crime stories they wrote. Crime stories are popular when you have beautiful people, tension and a vicious murder. Put in a "damsel in distress" or a child victim and the popularity of the story will go through the roof.

At their heart, true crime stories are an expose of a society's culture, customs and mores. Adultery, jealousy and greed provide the narrative for a sordid little murder.Want to know who the bogeyman is? Just take a look who the villain is in the books. We've gone from black men to Germans to communists to Latin American immigrants.

Not being a lawyer, Mr. James has little use for the rules of evidence and the concept of due process. In fairness, his interest is determining who did it -- not whether the prosecutor can prove who did it beyond all reasonable doubt. In his utopian court system, the only requirement of evidence would be relevance to the matter at hand. To determine relevance, Mr. James created a seven-step process.

1. State the fact itself in a way that is unambiguously true.


2. State that which tends to be proven by the fact, as if this was known to be true.


3. Put the statement of fact proven by (2) in a "standard evidence" form.


4. Establish the value of the statement of evidence with reference to a standard set of values for such evidence.


5. Make an estimate of the extent to which the statement is unproven.


6. Make an estimate of the extent to which the statement is irrelevant.


7. Discount the value of the statement by the extent to which the statement is unproven or irrelevant.

The hardest thing for Mr. James to wrap his head around is the notion that a jury should not hear evidence that is unduly prejudicial to the defendant. The concepts of hearsay and confrontation are also both out of his grasp.

An interesting point that Mr. James makes is that after the expansion under the Warren Court of protections for the accused, far more defendants are convicted than before. He offers up an explanation that rings true. According to Mr. James, it's harder to beat the rap due to the professionalism of the police and pretrial discovery.

Juries are much more likely today to believe a police officer on the stand than they were in the 20's and 30's. Officers are perceived as more educated and disciplined today. As Gordon Gekko told Bud Fox, "the perception is reality."

It's the other idea that I'm interested in. Back in the early part of the century there was no pretrial discovery. Every trial was trial by ambush. The defendant didn't know what the prosecutor had up his sleeve and the prosecutor had no idea what tricks the defense attorney had in the works. That made it more attractive for defendants to roll the dice and go to trial.

Nowadays we see the offense reports. We see videos of traffic stops or interrogations. We see photographs. We read witness statements. There is very little the prosecutor has that the defense doesn't know about (but, of course, Brady is one case that is honored more in the breach than in the observance). Over at the civil courthouse there is little or no mystery at trial anymore. Thanks to liberal discovery rules, everyone knows what everyone else knows and what everyone's going to say. There's a reason most civil cases settle long before trial.

Is something similar playing out in the criminal courthouse? Does knowing the strengths of the prosecution's case make defendants more likely to enter into pleas rather than taking a chance at trial? As both sides operate with more information we're seeing prosecutors drop more and more of their weak cases and defendants pleading when confronted with a strong case against them. The cases going to trial tend either to be the coin flips or the cases in which a defendant is hoping to "beat the rec."

Popular Crime is an interesting book that will make you think -- it's just that sometimes that's after you've thrown your book (or your Kindle) halfway across the room.

Opening one's eyes

Back in May I wrote about a case in Iran in which the court ordered the blinding of a man as punishment for his throwing acid in the face of a woman who had scorned him. The sentence was to be carried out because the victim, Ameneh Bahrami had demanded qisas, a form of retributive justice under Sharia law.

This past weekend, Ms. Bahrami changed her mind.  

Isna quoted Ms Bahrami as saying: "I struggled for seven years with this verdict to prove to people that the person who hurls acid should be punished through 'qisas', but today I pardoned him because it was my right.

"I did it for my country, since all other countries were looking to see what we would do."

Ms Bahrami was quoted on Iranian TV as saying: "I never wanted to have revenge on him. I just wanted the sentence to be issued for retribution. But I would not have carried it out. I had no intention of taking his eyes from him."

Ms. Bahrami pardoned her attacker, Majid Movahedi, on the day he was scheduled to have sulfuric acid placed into his eyes.

I have no idea whether Ms. Bahrami never intended for Mr. Movahedi to be blinded. For all I know this is what she wanted all along -- for Mr. Movahedi to live in fear of being blinded before pardoning him at the last minute. Maybe she was pressured to pardon him in the face of growing international concern over the cruelty of the punishment.

All I know is that it took great mercy and conviction for Mr. Bahrami to forgive the man who took her sight. As I wrote back in May, blinding Mr. Movahedi was not going to bring back Ms. Bahrami's sight. It was not going to undo the damage to her face.

In the meantime, we're appalled at the very idea that a court would order a man to be blinded as a punishment for his crime. Yet we have no qualms about the state sticking a needle in someone's arm for the express purpose of murdering them.

An eye for an eye

Dearly beloved, avenge not yourselves, but [rather] give place unto wrath: for it is written, Vengeance [is] mine; I will repay, saith the Lord. -- Romans 12:19

Hand a prosecutor an affidavit of non-prosecution from the complaining witness in a domestic assault case and you will likely be told that the DA has to prosecute those cases, regardless of whether the complaining witness wishes to cooperate or not. After all it's the State of Texas versus your client.

Ask a prosecutor to consider probation in a violent felony case and you will likely be told that the DA must run it by the complaining witness before agreeing.

It's the state's way of having its cake and eating it, too.

Truth be told, the criminal (in)justice system doesn't need complaining witnesses, or their families, involved in the adjudication of a criminal offense. What we need are advocates on both sides who are able to distance themselves from the persons and events involved. While empathy is necessary, pandering is not.

Scott Greenfield wrote about the perils of a defense attorney getting too close to a client. There's also a danger when a prosecutor gets too close to a complaining witness. The closer you get to the parties involved, the more perspective you lose.

Nowhere is that lack of perspective any more focused than in Iran where a court has ordered that a man convicted of blinding a woman be blinded himself. Majid Movahedi hurled acid into the face of Ameneh Bahrami after she spurned his proposal of marriage. Mr. Movahedi was convicted in 2009 and the court ordered that he be blinded as his punishment.

Ms. Bahrami asked that she be allowed to carry out the actual procedure in which five drops of sulfuric acid will be placed into each eye.

As anyone who has ever practiced law or been a party to a lawsuit knows, the justice system (whether it be civil or criminal) cannot undo a wrong. The best a court can do is compensate the victim of a wrong in civil court or punish the person convicted of committing a crime in criminal court. No matter how much money a court may award, and no matter the sentence meted out, the underlying act happened - and nothing will change that.

Award a family a million dollars for the loss of their child in a car wreck caused by the negligence of another driver and the child is still dead.

Sentence a man to death for the murder of someone's loved one and the loved one is still dead.

Order a man blinded for blinding a woman and she will still be blind.

These are the realities that we deal with on a daily basis. The folks involved in the litigation are emotionally invested and tend to have their judgment clouded one way or the other. The attorneys involved must be able to detach themselves from the emotional side of the equation in order to resolve the matter.

Go big, or go to the big house

While 16 employees of the City of Houston's public works department face criminal prosecution for allegedly stealing copper, brass and other scrap metal from city work sites, a handful of state legislators have profited handsomely from windstorm insurance fees and commissions.

The city workers allegedly took scrap metal from work sites, in city-owned trucks, and sold it at area scrap yards. If the allegations are true, those workers defrauded the citizens and taxpayers of Houston by siphoning away revenue that could have been used to fund city services.

The state legislators, who oversaw the insurance industry in the state, made their money either by selling windstorm insurance to homeowners or through litigation over damage due to Hurricane Ike. The vice-chair of the House Insurance Committee, Craig Eiland (D-Galveston) picked up $627,000 in legal fees as the result of a class-action suit filed by homeowners who lost everything. The head of the joint committee overseeing windstorm insurance, Larry Taylor (R-Friendswood) made $390,000 in commissions for selling windstorm policies between 2006 and 2010. Todd Hunder (R-Corpus Christi) who used to be a lobbyist for the windstorm insurance industry made $65,000 mediating windstorm cases and another $8,750 for other cases.

The city workers will be prosecuted. The legislators will be wined and dined by lobbyists. The city workers face jail time. The legislators will attend fundraisers. The city workers thought they could game the "system" - they were wrong. The legislators thought they could game the system - they were right.