The Absence of the Appurtenances of a Process of Proof, and the Shell of a System of Adversary Ajudication

Jim Yardley, Desperate Search for Justice: One Man vs. China, NYTimes Online (November 12, 2005):

A quarter century ago, after the chaos of Mao's Cultural Revolution, China essentially had no legal system. In that context, it has made significant strides. The 1996 reforms were intended to shift toward an adversarial trial process, modeled in part after the American system. Instead, the reforms have become most notable for what was left out.

"They didn't put in rules of evidence," said Jonathan Hecht, deputy director of the China Law Center at Yale University. "They didn't put in requirements that witnesses appear at trial. Lawyers weren't given the ability to really prepare a case. They kind of created the shell of an adversarial process, but they didn't create the guts of it."

When Chances Collide; DNA & "Exoneration"; Suggestibility & Gullibility

WORLD & NATION BRIEFS, Newsday (November 12, 2005) p. A17:

A Wisconsin man who spent 18 years in prison for rape until being exonerated by DNA evidence in 2003 will be charged with killing a woman whose vehicle was found near his home, a prosecutor said Friday. Steven Avery's blood was found inside Teresa Halbach's sport utility vehicle, said Calumet County District Attorney Ken Kratz, who plans to charge Avery by Tuesday. Avery has denied involvement in the disappearance of Halbach, 25, who was last seen Oct. 31. The freelance photographer had three appointments that day to take pictures of vehicles for sale, including one at a salvage yard owned by Avery's family in Manitowoc County, about 25 miles south of Green Bay.

Transcript from Nancy Grace Show, "Prosecutors Zero in on Suspect in Murder of Teresa Halbach," (November 11, 2005):

RICHARD HERMAN, DEFENSE ATTORNEY [for Avery]: Well, Harris, I have to pick myself off the floor here because Wendy [Murphy] just blew me away. I got to tell you something. There`s not going to be a new trial in the old case because he was completely vindicated. Vindicated! It was reversed. The conviction was reversed. He was wrongfully imprisoned for 18 years.

The Innocence Projects do wonderful work. But perhaps this case shows (again) that great care should be taken before claims are made that this or that DNA "proves" this or that man's (or woman's) innocence. There is no conclusive proof of innocence (or guilt). See P. Tillers, DNA Redux to the Fourth Power: Thoughts Inspired by -- but Not necessarily Faithful to the Facts and Recent Developments in the Central Park Jogger "Wilding" Case, in Tillers on Evidence and Inference (blog), September 8, 2002.
P.S. Headline: Steven Avery Receives Standing Ovation from Wisconsin's Assembly and Senate Judiciary Committee. Steven Avery and the woman he was (wrongfully?) convicted of raping 20 years ago -- Penny Beerntsen -- testified before the Assembly and Senate Judiciary Committee of the Wisconsin legislature. Avery's case was apparently a kind of cause celebre in Wisconsin and it apparently became a fulcrum for an effort there to pass legislation to improve pretrial identification procedures. After they testified, both Avery and the woman whom he had been (wrongfully?) charged with raping "received standing ovations from the committee members and others in attendance." David Ziemer, Legislature holds hearing on Avery Task Force reforms in Wisconsin, WISCONSIN LAW JOURNAL (September 14, 2005).

I can't help wondering if the truly-unfortunate Ms. Penny Beerntsen still thinks that the lineup identifications used in her case mistakenly led her to identify Avery as the culprit. Ms. Beernsten was apparently persuaded that her initial recollection and belief that Avery was the rapist was wrong. The Wisconsin Law Journal, id., reported, "Yet even though [Ms. Beernsten] knows that Avery was not the one, she still sees his image when she recalls the attack, so suggestive were the identification procedures then in place, and still in place throughout the state." The Avery-Beernsten case may yet demonstrate that suggestive procedures may lead witnesses to incorrect conclusions -- but, if so, the lesson here may be that well-intentioned and passionate reformers are also capable of implanting false thoughts in the minds of witnesses. This case really may prove to be a terrible twist of fate -- and of human gullibility (in many places).

P.P.S. The malefactor who killed Teresa Halbach apparently burned her body in an effort to destroy the evidence. But the effort at evidence destruction was not entirely successful -- burned bone, teeth, and blood were found in Halbach's car -- and the body parts and fluids that remained after the fire were apparently such that at least some DNA testing could be done on them. DNA apparently plays a role in the Avery-Halbach homicide case in another way: DNA testing strongly suggests that Avery was the source of some of the blood found in Teresa Halbach's car. This evidence suggests that sometimes it may be appropriate to say:

If you live by DNA, you may also die by DNA

The Right of Divine Monarchs: The President's Power to Detain, Charge, Prosecute, Create Law, Adjudicate, Sentence, and Execute & Put to Death

This blawg generally sticks to topics in the law of evidence, proof, and fact investigation. But not always. And not now, after my eye was caught by the breathtaking extent of the authority claimed by the President in the name of the "war" on terror. Consider Petition for Writ of Certiorari, Salim Ahmed Hamdan v. Donald H. Rumsfeld et al. (August 8, 2005):

Almost four years ago, Petitioner Hamdan was captured by indigenous forces while attempting to flee Afghanistan and return his family to Yemen. After being turned over to American forces, he was taken in June 2002 to Guantanamo Bay Naval Base, where he was placed with the general detainee population at Camp Delta. ... In July 2003, the President found that Petitioner was eligible for trial by commission. Accordingly, he was placed in solitary confinement from December 2003 until late October 2004 ....

"[The United States District Court for the District of Columbia] ruled that [military] commissions [appointed by the President] may be used only to hear offenses that are triable under the laws of war, including the Geneva Conventions; that the Geneva Convention Relative to the Treatment of Prisoners of War ... is judicially enforceable; and that, as long as [Hamdan's] prisoner-of-war (POW) status is in doubt, Petitioner [Hamdan] must be tried by court-martial. ...

...

... [T]he court of appeals reversed the district court in an opinion written by Judge Randolph and joined by Judge Roberts [now Chief Justice of the Supreme Court of the United States] in full and Judge Williams (in part). [footnote omitted] ...

....

...[T]he court of appeals largely based its ruling on [the Supreme Court's] Eisentrager decision, accepting the President's claim of power to convene a commission to try most any offense, against any offender (including a United States citizen or nationals of any country in the world), in any place (including the United States). The President was allowed that power not for a fixed time, such as a war declared against a specific nation-state, but rather for perpetuity against an amorphous enemy that could include nationals of every country in the world. In these tribunals, the President was given the power to disregard not only American common-law and military law, but international law--despite the fact that the raison d'etre of commissions is to enforce international law.

...

In the end, the court of appeals held that the President has the power to decide how a detainee is classified ..., how he is treated, what criminal process he will face, what rights he will have, who will judge him, how he will be judged, upon what crimes he will be sentenced, and how the sentence will be carried out. The President is [allegedly] entitled to "pas[s] sentences and ... carr[y] out ... executions" through commissions, even if they do not "afford[d] all the judicial guarantees which are recognized as indispensable by a civilized people." ...

This reversal of the district court cannot be correct. The Revolution was fought to ensure that no man, or branch of government, could be so powerful. In a system of checks and balances, there can never be a time when the rule of law does not circumscribe power as fundamental as adjudicating culpability and punishment. Our forefathers paid a heavy price in blood to establish these principles, and it is our duty to defend them from all threats, foreign or domestic.

The Brennan-Warren Court may have made mistakes. But in one respect that Court was not mistaken: We must fear any government that imprisons or executes people without any semblance of due process of law. Public perception that a great public emergency exists is distressingly easy to manufacture. But a bit of perspective is in order. Our times are not more threatening than was the era of the Cold War, a time when the threat of nuclear annihilation loomed. The Presidency did not claim the power then that it does now. There is not more reason to suspend fundamental civil liberties now than there was in the 1950s and 1960s.