The Washington Post today reported: "Obama advisers are set to recommend military tribunals for alleged 9/11 plotters." The report indicates that the Obama administration now leans towards trying self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his co-conspirators in military tribunals. Reactions were swift and are offered below without comment.

"Obama said that the choice between our security and our ideals is a false choice. He was right," writes Adam Serwer at The American Prospect. "The real choice was always between our ideals and our politics, and if the above story is true, then Obama will have made the obvious, if profoundly disappointing, choice."

At Harper's, Scott Horton introduced "Barack Obama's new attorney general: Rahm Emanuel," apparently blaming Emanuel for the administration's shift in policy. Marcy Wheeler seemed to agree.

"Three is the number of people who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today," the ACLU offerred at their blog. "Compare that to the more than 300 who have been convicted on terrorism-related charges in our federal criminal courts and are incarcerated in federal prisons."

Sen. Russ Feingold notes this track record of military commissions and warns that "[t]he best way to bring these terrorists to justice swiftly is through our civilian courts."

Spencer Ackerman is tracking commentary from former military officers opposing military tribunals for KSM.

Steve Benen wonders if fault for any potential policy shift ultimately lies with Congress, who "spent the last year cowering whenever national security came up, and threatening to side with Republicans on cutting off funding for trials and Gitmo closure."

Folks at The Atlantic's politics blog conjectured that the Post's "story is merely a test balloon."

Less charitable commentary was provided by Jeralyn Merritt at TalkLeft and Glenn Greenwald at Salon, who both voiced grave disappointment with the admistration's reported shift in position.

A final notable quote is from Attorney General Eric Holder, a former ACS board member, in an exchange with a reporter from The New Yorker earlier this year. In an extensive report on his decision to try KSM in an Article III Court, Holder eagerly defended what was then the administration's position:

"I don't apologize for what I've done," [Holder told The New Yorker]. "History will show that the decisions we've made are the right ones." Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as "the defining event of my time as Attorney General." But, he added, "between now and then I suspect we're in for some interesting times."

If the commentary above is any indication, interesting times may well be upon us.

[Image via The White House.]

The preeminent constitutional scholar and ACS Board of Advisors member Laurence H. Tribe will join the Department of Justice to lead "an effort focused on increasing legal access for the poor," The Washington Post and National Public Radio (NPR) report.

Tribe, the Carl M. Loeb University Professor at Harvard Law School, will serve as "a senior counselor for access to justice," The Post reported. NPR noted in its coverage that "one of the top constitutional lawyers in the country is taking a leave of absence from Harvard to spearhead" the "Access to Justice" initiative. The announcement of the position follows a recent Justice Department "National Symposium on Indigent Defense," which explored ways to improve the nation's faltering indigent defense system.

Tribe (pictured) will start work at DOJ next week and "will coordinate with judges and lawyers across the country with the goal of finding ways to help people who cannot afford a lawyer - a circumstance known in legal terms as indigent defense." Listen to NPR's full story here.

In 1963, the U.S. Supreme Court ruled in its landmark Gideon v. Wainwright decision that the Sixth Amendment provides a fundamental right to counsel for defendants, including those unable to afford legal representation. Writing for the majority in Gideon, Justice Hugo Black maintained, the Sixth Amendment means that "in federal courts, counsel must be provided for defendants unable to employ counsel unless that right is completely and intelligently waived."

The problems besetting indigent defense were highlighted during the Justice Department's symposium by senior DOJ leaders who drew "attention to the large caseloads handled by public defenders and other challenges in providing legal services to low-income defendants." Last fall, The Post reported on the increased need for legal aid programs in Maryland, the District of Columbia and Virginia coinciding with the decline in funding for the services. The situation, the newspaper reported, had become so dire in Maryland "that the chief judge of Maryland's Court of Appeals has urged lawyers to donate time or money to preserve" the legal aid programs.

Tribe has "served as lead counsel in 35 cases before the Supreme Court, testified before Congress dozens of times and wrote a major treatise on constitutional law," The Post notes. "Several of his pro bono cases involved victim rights, including representations of migrant workers injured by large farming companies, tenant farmers in Hawaii who sought land reforms and a group of plaintiffs suing cigarette companies for deliberate deception about the products' health effects."

For more on the DOJ's indigent defense symposium see a recent ACSblog guest post by Virginia Sloan, The Constitution Project, and Cait Clarke, Equal Justice Works. "While funding for indigent defense has increased since Gideon was decided, funding is woefully inadequate and the current economic crisis confronting many state and local governments is exacerbating the situation tremendously," the two write. 

The majority of Texas counties continue to rely on procedurally flawed method that is failing poor defendants facing the death penalty, according to research published in a new ACS Issue Brief.

University of Denver Sociology and Criminology Professor Scott Phillips studied more than 500 death penalty cases in Harris County, home of Houston, which the author dubs the "capital of capital punishment," and found that a method of employing court-appointed lawyers is riddled with procedural problems.

Phillips writes:

Defendants who hired counsel for the entire case were never sentenced to death. Even defendants who hired counsel for a portion of the case were substantially less likely to be sentenced to death than defendants with appointed counsel.

The findings are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies in the appointment method of indigent defense. The system is flawed, not the individuals who work within the system.

Beyond being procedurally flawed, Phillips maintains the method, which is used in 252 of the state's 254 counties, has life and death consequences. He notes that "38 of the 41 defendants executed to date had appointed counsel."

Phillips urges the state to create a "public defender office with resources proportionate to the DA's office." Such an office, he maintains, would "reduce differential treatment and eliminate the structural deficiencies inherent in the appointment method."

The Issue Brief, "Hire A Lawyer, Escape the Death Penalty?" is available here. It is Phillips' second Issue Brief for ACS. He first wrote on racial disparities in capital punishment cases. That Issue Brief is available here.

Does a Texas prosecutor's affair with the trial judge in a capital case violate the defendant's right to a fair trial? That question could face the U.S. Supreme Court if it grants certiorari in the case of Charles Dean Hood, who was sentenced to death in 1990. He only obtained depositions of Judge Verla Sue Holland, who presided over Hood's case and the prosecutor, Thomas S. O'Connell Jr., in 2008. The Texas Court of Criminal Appeals considered Hood's case, but still ruled 6-3 to uphold his execution. 

Hood's appeal to the Supreme Court immediately drew the support of 21 prosecutors and 30 legal ethics experts.

"A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself," the ethics experts wrote to the high court in their amicus brief. "Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative."

Attorney and ACSblog contributor Scott Horton agreed, writing this morning that "Texas is in the process of declaring itself a judicial ethics-free zone."

Writing in The New York Times, Adam Liptak notes that the Supreme Court has demonstrated a willingness to dabble in judicial ethics:

Last year, [the Court] ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

"The probability of actual bias on the part of the judge," Justice Anthony M. Kennedy wrote for the majority, was "too high to be constitutionally tolerable."

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift - a penis made of chocolate.

Concerns for judicial integrity have haunted Texas of late, as suggested by Horton. Just released today is "Hire a Lawyer, Escape the Death Penalty?," an ACS Issue Brief by Professor Scott Phillips. Phillips researched the death penalty's application in Houston and surrounding Harris County, which is the county with the largest number of executions in the United States and the largest jurisdiction that uses court-appointed lawyers instead of a public defender to represent defendants who cannot afford an attorney. Phillips study reveals that "[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal."

The tale of Todd Cameron Willingham also raised concerns, drawing widespread attention to a case in which many say Texas executed an innocent man. Writing in The New Yorker last fall, David Grann detailed the case against Willingham, who was convicted of killing his young daughters. Prosecutors in Willingham's case relied heavily on what one expert has since called "junk science" considered by either modern evidentiary standards, or those in place at the time of Willingham's prosecution. That case is being considered by a state commission established to investigate allegations of error or misconduct by forensic scientists. 

And questions about judicial ethics have dogged Judge Sharon Keller of the Texas Court of Criminal Appeals. Keller refused attorneys for death row inmate Michael Wayne Richard extra time to file papers on the night of Richard's execution. Keller promptly closed the courthouse doors at 5 p.m., and Richard, prevented from timely filing his papers due to technical difficulties, was executed later that evening. Keller remains the subject of a special prosecution, in which opening arguments recently took place. The court on which Keller sits is Texas' top criminal court, which also reviewed Hood's case and reinstated his death sentence.

[Image via AnEyeForTexas.]

A recent PBS "Bill Moyers Journal," episode focused on the fallout of the high court's recent ruling in Citizens United v. FEC, and especially how it could impact the election of judges. The Feb. 19 program revisits a 1999 "Frontline" program that investigated increasing concern about campaign contributions' impact on the judiciary and noted a recent comment from retired Justice Sandra Day O'Connor that the most disconcerting fallout of Citizens United may be its influence on judicial elections. The program also includes commentary from The New Yorker's Jeffrey Toobin, who said the decision, which held that corporations may spend freely on elections, could have a staggering impact on the courts in states where judges are elected.

Toobin maintains:

I think judicial elections are really the untold story of Citizens United, the untold implication. Because when the decision happened, a lot of people said, 'Okay. This means that Exxon will spend millions of dollars to defeat Barack Obama when he runs for re-election.' I don't think there's any chance of that at all. That's too high profile. There's too much money available from other sources in a presidential race. But judicial elections are really a national scandal that few people really know about. Because corporations in particular, and labor unions to a lesser extent, have such tremendous interest in who's on state supreme courts and even lower state courts that that's where they're going to put their money and their energy because they'll get better bang for their buck there.

Watch video of the program here or by clicking on the picture. 

On Feb. 24, ACS will host an event at the National Press Club further exploring the political and legal fallout from Citizens United. See here for information on the event. 

Across the country, public defender offices are underfunded and understaffed, drowning in overwhelming caseloads. Public defenders are dedicated lawyers trying their best to represent their clients in often-impossible circumstances. Even worse, in many areas around the country, there are no public defender systems at all, resulting in a haphazard system of appointing lawyers who may be unprepared, without sufficient resources, and have no relevant experience.

It has been nearly 50 years since the U.S. Supreme Court's decision in Gideon v. Wainwright decreeing that there is a constitutional right to a lawyer in criminal cases and that the government must provide one if the defendant cannot afford one. The Court recognized that well-trained and adequately resourced defense lawyers are the best way to determine whether the right person has been arrested for a crime. Yet states and localities are not providing the funds to pay for these lawyers, meaning that poor people are languishing in jail at the taxpayers' expense with no real opportunity to mount a defense.

While funding for indigent defense has increased since Gideon was decided, funding is woefully inadequate and the current economic crisis confronting many state and local governments is exacerbating the situation tremendously.

The U.S. Department of Justice has just hosted a National Symposium on Indigent Defense, the first of its kind in 10 years. One of the goals of the Symposium was to look at America's indigent defense systems in each state from top to bottom, and to examine both successful and failed attempts at indigent defense reform. Attendees committed to working together to craft new ideas for successful reforms, while forging alliances and building partnerships to achieve them. We applaud the Department of Justice's leadership in hosting this Symposium. It is a much-needed effort to spotlight the failings of the nation's criminal justice system and the crises persisting in state public defense programs.

However, the Symposium is, in our view, only the beginning of the work that must be done to fulfill the promise of Gideon.

As Thomas Perez, the Assistant Attorney General for the Civil Rights Division, said in a speech to the Symposium, the indigent defense crisis is the civil rights issue of our time. While many private organizations and individuals are working hard to address the crisis, they simply do not have the resources and cannot do it alone. With limited state and county resources and capacity, the federal government must step in and become a full partner in these efforts, providing critically needed resources and leadership.

We have long known how to fix these problems. The report of the Constitution Project's National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, is the most comprehensive examination of the indigent defense crisis in over 30 years. The Committee, whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded that this country's indigent defense system is in crisis, that the government has for too long ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.

One of the most important recommendations is that indigent defense should be provided through an independent, non-partisan authority that appoints qualified, experienced lawyers who have adequate resources. Of equal significance is the recommendation that the federal government assist the states in ensuring that the Sixth Amendment is protected and that poor people have the kind of lawyers to which they are constitutionally entitled. The federal government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates the already untenable situation.

Another recommendation is that the federal government should create a federal office of public defense services to distribute funds, collect data, promulgate standards, and develop and deliver training similar to the federally-supported training for state and local prosecutors. Additionally, the federal government should require all states to abide by national standards for public defense. Adoption of the American Bar Association's Ten Principles would provide constitutionally adequate legal representation for criminal defendants unable to afford an attorney.

One innovative idea that will improve the quality of representation for indigent defendants is to create a national fellowship program to cultivate and train the next generation of indigent defense lawyers. This would dramatically increase the number and caliber of lawyers working to secure justice for clients and communities. Equal Justice Works, working in partnership with the Southern Public Defender Training Center (SPDTC), is proposing to do just that. We urge the Department of Justice to support this effort with adequate resources for three-year public defense fellowships for committed lawyers who can work to change the culture of indigent defense systems nationwide.

We applaud the Department of Justice for hosting this National Symposium on Indigent Defense, for recognizing the crisis in indigent defense, and for taking an important first step in the right direction. We call on the Department to take the next steps of educating all Americans about the crisis and the need to address it, and -- most important of all -- to provide the resources that are so urgently needed to ensure that Gideon's promise is finally fulfilled.

[Image via Wade Wofford.]

The survivors of two Guantanamo detainees who died in U.S. military custody had their hopes of assigning civil liability dashed yesterday. The families of Yasser Al-Zahrani and Salah Ali Abdullah Ahmed Al-Salami saw their suit dismissed by a district court judge who relied on the Military Commissions Act of 2006 in her order.

The deaths, which were deemed "suicides" by the military, drew closer scrutiny after a Seton Hall study was released suggesting several reasons for suspicion. After attorney and ACS participant Scott Horton discussed the deaths on MSNBC, four soldiers who had been stationed at Guantanamo came forward and shed further light on what happened that night.

According to the Associated Press, the families of the deceased sought damages "under the Alien Tort Claims Act, alleging arbitrary detention, torture, cruel and inhuman treatment, violations of the Geneva Conventions, and cruel and unusual punishment." The judge dismissed these claims, deferring to the military's position that the detainees were enemy combatants rather than prisoners of war.

This determination "runs contrary to the evidence," Horton wrote today. 

Both men were turned over to U.S. forces for bounty payments, and a thorough investigation of their cases by American military intelligence concluded that there was no meaningful evidence to link either man to either Al Qaeda or the Taliban. Al-Zahrani had been placed on a list to be released back to Saudi Arabia, immediately behind Mani Al-Utaybi, who also died under still unexplained circumstances on June 9, 2006, at approximately the same time as Al-Zahrani and Al-Salami, according to pathologists. 

[Image via smit5334.]

Spain Accepts Five Detainees: Spain announces the largest commitment among European countries.

Intelligence, Judiciary Committee Chairs Endorse Federal Trials: Senators Feinstein and Leahy pen a letter defending domestic terror trials.

Another Senator Supports Closing Gauntanamo with Caveats: Senator Graham demands military tribunals and indefinite detention.

International Law Expert Assesses Politics: Professor Deborah Pearlstein parses the political considerations seemingly driving Guantanamo decisions.

D.C. Circuit Hears Argument Against Releasing Detainee: The Justice Department appealed the district court's order to release Mohammed al-Adahi.

SCOTUS Considers Dismissing Kiyemba: With countries willing to accept all seven Uighurs at Guantanamo, the Supreme Court ordered briefing on whether to dismiss their case.

[Image via christophe dune.]

Picking Cotton

Our Memoir of Justice and Redemption

By Jennifer Thompson-Cannino and Ronald Cotton, with Erin Torneo

[Available Here]

[Editors' Note: After the break, this post includes the author's first-hand account of a violent crime that may not be appropriate for all readers.]

As I travel across America telling our story, one of the most common questions I hear is, "How long did it take you two to write your book"? It took 25 years.

In July of 1984, I attended Elon College, a small school nestled beside Burlington, N.C. Living off-campus, I studied hard, worked two jobs, and dated my long-term boyfriend. It was a particularly hot summer, with both the temperature and humidity consistently high. My boyfriend and I spent one of those sticky, July days together playing tennis and later going out to dinner. We planned to attend a party that night, but a raging headache sent me home around 9 p.m. and I went to bed under a loud and rattling air conditioning unit hanging over my bed. I never heard the break-in, but the clock read 3 a.m. when I sensed a presence in the room. The sound of feet sliding on carpet and a brush against my left arm sharpened my consciousness.

"Who is it? Who's there?" I asked. In the blink of an eye he was on top of me, and I felt a cold, sharp object go to me throat. My screams were quickly muffled with a gloved hand and the violent command "Shut up or I'll kill you!" Every nerve ending was on high alert; I knew that my life was in grave danger, and there was nothing I could do to prevent him from killing me. Images of my mother and father filing into the morgue flashed through my mind. I would never see another sunset, tell my family that I loved them, attend graduate school or be a mom. I could not defend myself, and this horrible monster knew it.

The next thirty minutes were surreal. As he held me down and raped me, my spirit and soul slowly began to die. But I made a decision that would ultimately save my life. I must stay present. Take notes. Remember everything! Pay attention. Make a plan. I studied him. Etched in my memory forever was this face - a face I hated.

I tricked him into getting off of me - letting me make us a drink - and ran for my life. A brave neighbor let me in with seconds to spare before he could seize me again. But my nightmare had only just begun. Through the next day I would be subjected to a rape kit to collect evidence left behind, would learn that he had raped another woman within an hour of destroying my life, and ended up at the police department to help offer leads. I remembered everything about this beast, and I wanted him caught and off the streets. A composite sketch was done, newspapers ran the picture, and a suspect was detained. His name was Ronald Cotton, a young black male with a sketchy past and a knack for attracting the attention of the police.

I was able to identify my rapist in a photo lineup and a physical lineup. Both times, I pointed out Ronald Cotton. I knew it and the police knew it, but now we had to prove it to a jury. In January of 1985, State v. Cotton went to trial. After two weeks of trial and forty-five minutes of jury deliberation, Ronald Cotton was found guilty of all counts and sentenced to life plus fifty-four years in prison. Justice prevailed! I thought. A toast to the system! Ronald Cotton would be locked away forever and if there was a God, he would die there.

A second trial in 1987 would bring new information to light. Cotton's team wanted to introduce evidence that a man named Bobby Poole had confessed to the other rape for which Cotton was now being prosecuted. The judge barred the evidence, though, and the jury never got the chance to hear these lies. Once again Ronald was found guilty of all charges, and received another two life sentences. Justice prevailed again! Or so I thought.

Life moved forward. I married in 1988 and became a mother to triplets in the spring of 1990. But by March of 1995, once again my life resembled a train wreck. A DNA test was performed using some of the evidence gathered during the investigations of Cotton's crimes. And they revealed that Ronald was, in fact, innocent; the DNA belonged to Bobby Poole.

I was paralyzed with guilt, shame and fear. I cried throughout the days, became fearful with every shadow, phone call, or car that passed my house. It took two years before I had the courage to do the right thing and ask for forgiveness. With mercy, grace and without hesitation, Ronald gave me that gift and released me from a pain that had haunted me for 13 years.

Since then, Ronald and I have outspokenly advocated for reform. We have worked hard to advance justice and bring to light the human flaws that sometimes get in the way.

As Ronald was awaiting trial that summer and fall of 1984, Bobby Poole continued his reign of terror on the good people of Burlington, and six other women had their lives forever altered. And Ronald wrongfully served 11 years in prison for crimes of which he was, in fact, innocent. As a nation and a people, we must do better at delivering justice.

Maher Arar is appealing his torture suit to the U.S. Supreme Court, presenting the justices an opportunity to review the controversial "state secrets" privilege asserted by the Bush and Obama administrations. Arar's suit against the United States government stems from his 2002 arrest in New York and transfer to Syria for alleged ties to terrorism. At a prison in Syria, Arar alleges, he was tortured, interrogated and detained for almost a year.

Arar (pictured at right) is a Canadian citizen who successfully sued his government for its role in misinforming the United States about his ties to terrorism. In lower courts here, though, Arar has been rebuffed. The government's assertion of the "state secrets" privilege has barred Arar from presenting evidence necessary to the advancement of his suit.

The Center for Constitutional Rights (CCR), which is representing Arar and filed his petition for certiorari yesterday, has a collection of resources on the case here. ACS also has a wealth of resources, including Issue Briefs on the "state secrets" privilege and the U.S. ban on torture by Prof. Amanda Frost and Devon Chaffee, respectively. ACS also hosted Prof. David Cole, who is working with CCR on the case, as part of a national security and human rights symposium at the National Press Club in Washington, D.C. last fall. Video of that event is available here. 

[Image via CBC.]