Tuesday, May 19, 2009

Dining beneath the poisonous tree

Every healthy tree produces choice fruit, but the diseased tree produces rotten fruit. A sound tree cannot produce rotten fruit, any more than a rotten tree can produce choice fruit. Every tree that does not produce choice fruit gets cut down and tossed on the fire.--Matthew 7:17-20, SV

I appeared, once, in Federal court, defending a criminal charge. I was assigned to the case as part of my license in Federal Court (you have to be "licensed" to practice in Federal court. There's no examination required, but it's the court's way of controlling who gets to stand before it, and who doesn't.) The charge was possession of a firearm by a convicted felon, and he was guilty, no question about it. "Possession" is one of those "legal concepts" that most people (including my client) think means "in your hands at the time the officer saw you." Actually, it was lying in the package tray in the back of the car. So it was in full view, when my client got pulled over. A quick records check revealed his felony record and the rest, as they say, is history.

As my Crim. Law professor told us, from experience: "They don't catch the smart ones."

But we imagine, especially after the era of the Warren Court and after seeing Victoria Hamel play a public prosecutor on "Hill Street Blues," and after seeing what prosecutors go through on "Law & Order" (where they are always concerned with good public order and work on only one case at a time), that the system is resolutely fair and balanced and aimed at getting the truth. No, the system isn't interested in the truth, unless a defense attorney works relentlessly to produce it. What the system is interested in, is convictions. Convictions, after all, produce "law and order." So this shouldn't be the disappointment and/or surprise that it is:

The filing was part of a package of materials provided to the military judges at Guantánamo asking them to suspend cases until Sept. 17. The documents indicated that the administration had concluded that to win convictions it might need to retain the advantages the commissions were intended to give military prosecutors.

One proposed change dealt with limiting hearsay evidence against prisoners, a type of evidence that is often limited in American courts partly to ensure that defendants can confront witnesses against them.

But officials say hearsay is important to many cases at Guantánamo that are based on accusations of other detainees or foreign intelligence agents who might not be able to appear to testify.

Mr. Obama’s statement on Friday said that “the use of hearsay will be limited.” But the filing showed that military prosecutors would continue to rely extensively on hearsay evidence that might be barred in federal court. A memorandum describing the administration’s changes that was filed with the military judges said that such “hearsay admissibility remains much broader than in domestic courts” in the United States.

One of the senior administration officials said that although federal courts bar many kinds of hearsay evidence, “the hearsay rule is not one of those things that is rooted in American values.”
No more than habeas corpus, or the 4th amendment, or Miranda, or Gideon, or....oh, I give up.

Convictions; convictions are rooted in "American values." On the other hand, there is an argument to be made for "military commissions":

One official spoke anonymously on the situation confronted by the administration because he was not authorized to discuss its thinking.

He noted that detainees were captured in settings that did not permit the careful procedures familiar to American law enforcement officers, like search warrants and warnings that any statements they made could be used against them.

The official asked, “How do you translate that into a case that is even possible in a U.S. federal court?” And then he answered his own question: “Very difficult.”
And it's not an idle one. The problem is, by now, I'm not sure what credibility the nation has left on this issue. After "black prisons" and Abu Ghraib and Gitmo and torture....what justice can we be seen to do now? There is a legal concept called "Fruit of the Poisonous Tree," upon which grounds a court will reject a criminal prosecution if it is so fatally flawed that conviction would mean trampling certain constitutional rights and due process guarantees. Maybe, instead of finding a way to gain convictions by now, we should consider the poisonous fruit we are being made to eat; made to eat by our own hand, no less.

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