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|Topic: Justice in America|
Joined: 27 July 2006
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| Topic: Justice in America
Posted: 25 August 2006 at 10:29am
Lieutenant Watada Should Be Prosecuted, Article 32 Hearing Finds
8.25.2006 -- The Army has cleared another hurdle in its attempt to court-martial First Lieutenant Ehren Watada, the first commissioned officer to publicly refuse to deploy to Iraq. In a report released Thursday afternoon, investigating officer Lieutenant Colonel Mark Keith determined that the Army has grounds to proceed with a full court-martial of Lieutenant Watada. "I find that 1st Lieutenant Watada's beliefs regarding the war in Iraq do not excuse his refusal to deploy or his public statements," wrote Lieutenant Colonel Keith.
The Army held an Article 32 hearing Thursday, August 17th, attempting to prove that the prosecution of Lieutenant Watada had sufficient evidence to proceed with a full court-martial on charges of 7 violations of the Uniform Code of Military Justice (UCMJ). For his part, Lieutenant Watada took the opportunity to "put the war on trial."
"The defense contends every officer is duty bound to evaluate each order given for legal sufficiency. I agree," Lieutenant Colonel Keith wrote in his official report about the Article 32 hearing. "However, due to the complexity of U.S. and International law, I believe it would be very difficult for Army officers to determine the legality of combat operations (nor should they attempt to do so) ordered by the President of the United States of America/Commander in Chief."
Eric Seitz, civilian defense attorney for Lieutenant Watada responded: "We are not surprised by the hearing officer's report and recommendations because it was our assumption all along that once the Army rejected all of our overtures and proposals and convened an Article 32 hearing that was tantamount to a decision to put Lieutenant Watada on trial."
Lieutenant Colonel Keith found "reasonable grounds" to believe that Lieutenant Watada violated Article 87 of the UCMJ, missing troop movement. Further, he says, "As an officer and leader his refusal to obey a lawful order cannot be excused and serves to embolden others to commit the same or similar misconduct."
Lieutenant Colonel Keith found similar reasonable grounds to believe that Lieutenant Watada had violated Article 88 (contempt toward officials) of the UCMJ, for statements he had made to the press. "1st Lieutenant Watada's contempt for the president serves to break down the good order and discipline of all military personal ..."
The hearing officer Lieutenant Colonel Keith also found that Lieutenant Watada had violated Article 133 (conduct unbecoming an officer and gentleman) of the UCMJ. "I find his message (contempt for civilian leadership and description of Army actions on the ground as "wholesale slaughter") and his actions (missing movement) support a charge of Conduct Unbecoming an Officer."
While Lieutenant Watada has not been charged with additional violations, Lieutenant Colonel Keith wrote: "I believe Lieutenant Watada's contempt for the President and suggestion that U.S. soldiers can stop the war simply by refusing to fight borders on a violation of Article 94 (mutiny and sedition)."
During the Article 32 hearing, defense attorney Eric Seitz presented three witnesses: University of Illinois law professor and international law expert Francis Boyle, former UN Assistant Secretary General, and twenty nine-year Army veteran, retired colonel Ann Wright. "We appreciated the opportunity to lay the groundwork to prove that the war in Iraq is illegal and that Lieutenant Watada, coming to this conclusion after much research, was duty bound to refuse to participate," said Seitz. "This case is really about the duty of individual soldiers to look at the facts and fulfill their obligation to national and international law."
During the Article 32 hearing, law professor Francis Boyle contended the United States had not met the requirements to go to war. "In order for the United States to enter into a war, there are two basic requirements. First, warfare would have to be authorized by the US Congress pursuant to the War Powers Clause of the Constitution, and secondly, unless the US itself is attacked militarily, or its troops, it would have to be authorized by the UN Security Council. Otherwise, aggressive warfare would be a Nuremberg Crime against peace, and that is stated in the Laws of Land Warfare." Professor Boyle also said the use of cluster bombs in civilian areas, depleted uranium, and the initial shock and awe tactics all violated various international laws.
Denis Halliday is the former Assistant Secretary General of the United Nations. During Lieutenant Watada's Article 32 hearing, Halliday was called to testify regarding the impact of war on the Iraqi people. "The people of Iraq had become used to living under very difficult conditions after the destruction in the name of the United Nations by the United States of the civilian infrastructure, water supplies, sewer systems, electric power, use of depleted uranium and cluster bombs."
Halliday was prevented from providing complete testimony when the investigating officer presiding over the Article 32 hearing ruled that the "consequences of the war or the situation on the ground" were irrelevant to Lieutenant Watada's argument that the war was illegal and that he had an obligation to refuse to fight it.
Twenty nine-year retired colonel Ann Wright also provided testimony in Lieutenant Watada's hearing last week. She said that while it's not too often that a soldier will refuse to obey an order on the grounds that it is illegal, that is not only part of a military tradition and training, it is also a military necessity. "We call on people in the military to use their brains to distinguish situations," Wright says. "You don't want personnel who will carry out illegal orders and say that they were told to do it. You want military personnel who will think about what they are doing."
Further, Wright testified it was her assessment that Lieutenant Watada was fulfilling his obligation: "The obligation of someone such as the accused who, by participating in the current conflict in Iraq, would be participating in war crimes would be to stand up and say that he cannot participate in it and that it would be an illegal order."
In calling for the full court-martial of Lieutenant Watada on all seven violations of the UCMJ, the Army rejected this testimony, but found that the Lieutenant was "sincere in his beliefs."
Defense attorney Eric Seitz responded, "I am pleased that the hearing officer finds Lieutenant Watada to be sincere, and recognizes the seriousness of the issues that Lieutenant Watada raises in this case," he said in a written statement. "I am dismayed, but not surprised, that the hearing officer dismisses the undisputed testimony of our experts as to the illegality of the war and ignores the well reasoned legal briefs that we submitted both on the war and the speech issues."
The Army is expected to announce whether or not it will proceed with a general court-martial of Lieutenant Watada within several weeks, and a court-martial could happen as early as November. For the latest information on Lieutenant Watada, see www.thankyoult.org. Sarah Olson, TruthOut
Joined: 27 July 2006
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|Posted: 29 August 2006 at 9:47pm|
U.S. States Widen Scope for Executions
8.29.2006 -- NEW YORK - Politicians in primarily southern U.S. states have passed laws that expand the use of the death penalty to include repeat child sex offenders -- a move mental health professionals say is ineffective in stopping molestation and abolitionists believe ultimately will be ruled unconstitutional. Despite the warnings, though, two states, South Carolina and Oklahoma, this summer enacted laws that allow repeat child sex offenders to be put to death. They join Louisiana, Florida, and Montana, which already have similar laws on their books.
The governors of both Oklahoma and South Carolina argued that the sexual abuse of children is as bad as murder because molestation causes permanent damage to the life of the child. "(It) is about sending a very clear message that there are some lines that you do not cross," said South Carolina governor Mark Sanford in a statement, "and that if those lines are crossed the penalties will be severe."
Oklahoma State Senator Jay Paul Gumm echoed the sentiment. "We allow the death penalty for someone who has killed a body," Gumm, who authored the Oklahoma bill, said in a statement. "Why would we allow someone to escape who has killed a soul?"
But critics dismiss such reasoning as irrational and unconstitutional, even though they acknowledge that child rape is a serious crime. "Obviously, it's a very, very serious crime," said John Holdridge, director of the American Civil Liberties Union's (ACLU) capital punishment project, in an interview with IPS. "But this law is totally disproportionate to the crime, which does not involve a case of an eye for an eye." Holdridge's remarks seem to parallel the U.S. Supreme Court's 1977 opinion on a case involving the rape of an adult woman in Georgia. The ruling suggests that the death penalty may only be applied in cases of murder, not rape.
Deciding the case, the Court observed that execution for rape was "disproportionate to the crime."
"Rape is without doubt deserving of serious punishment," the ruling said, "but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life." Moreover, citing the Eighth Amendment of the U.S. Constitution, the Court described the death penalty for rape as "a cruel and unusual punishment."
Along with the majority of lawmakers in South Carolina and Oklahoma who voted in favour of death penalty laws, Gumm reasoned that only an unusual punishment, such as execution, could deter those who repeatedly use sexual violence against minors.
One death penalty opponent called it "a very stupid message," and Holdridge agreed. "This law is terrible for the victim," he said. "It gives no incentive to the offender not to kill the victim." Moreover, in most child molestation cases, the victims and offenders know each other. Holdridge doubts family members would be willing to report the cases of child rape. Family members would not like to see the offender executed, they said.
Since the 1977 Supreme Court ruling, no one convicted of child molestation has been executed in the United States. One inmate in Louisiana, however, currently sits on death row for raping a child.
Patrick O. Kennedy was sentenced to die in 2003 for raping an eight-year-old girl. His case is working through appeals courts in Louisiana. It is not clear when or if it would come before the U.S. Supreme Court, but observers say it is likely.
Since the Supreme Court's previous decision against using the death penalty in the rape case involved an adult victim, proponents of execution for child rape are hoping the high court will not take that ruling into consideration.
Opponents, however, say despite the fact that the Supreme Court is now dominated by conservative judges, the possibility that judges may decide the Louisiana case in the light of its 1977 decision cannot be ruled out. "When it finally reaches the Supreme Court," Richard Dieter of the Death Penalty Information Centre (DPI), and a long-time observer of capital punishment cases, told IPS, "It's most likely to be struck down."
Other critics of the death penalty laws say they fear that children may be forced by malevolent adults to make false statements against the innocent. "There was a flurry of trials during the 1980s and 1990s of adults charged with sexual crimes against children in daycare centres," according to Amnesty International, the London-based rights group. "(But) time has shown that all, or almost all, of the alleged perpetrators were innocent."
Indeed, mental health professionals who work with repeat sex offenders say they do not believe the death penalty will deter a child molester. "It's a very simplistic way to deal with the issue of child molestation," said Dr. Gerald Landsberg, professor of social work at the New York University, in an interview with IPS.
Dr. Landsberg, who has authored several publications in the area of forensic mental health and violence, said various methods of treatment are available for child molesters, though there is a "very mixed" opinion about which are most effective. Sometimes, for instance, child molesters are treated with chemical castration. Haider Rizvi http://www.ipsnews.net/
Joined: 27 July 2006
Online Status: Offline
|Posted: 25 September 2006 at 7:18am|
In Tiny Courts of New York, Abuses of Law and Power
9.25.2006 -- Some of the courtrooms are not even courtrooms: tiny offices or basement rooms without a judge’s bench or jury box. Sometimes the public is not admitted, witnesses are not sworn to tell the truth, and there is no word-for-word record of the proceedings.
Nearly three-quarters of the judges are not lawyers, and many — truck drivers, sewer workers or laborers — have scant grasp of the most basic legal principles. Some never got through high school, and at least one went no further than grade school.
But serious things happen in these little rooms all over New York State. People have been sent to jail without a guilty plea or a trial, or tossed from their homes without a proper proceeding. In violation of the law, defendants have been refused lawyers, or sentenced to weeks in jail because they cannot pay a fine. Frightened women have been denied protection from abuse.
These are New York’s town and village courts, or justice courts, as the 1,250 of them are widely known. In the public imagination, they are quaint holdovers from a bygone era, handling nothing weightier than traffic tickets and small claims. They get a roll of the eyes from lawyers who amuse one another with tales of incompetent small-town justices.
A woman in Malone, N.Y., was not amused. A mother of four, she went to court in that North Country village seeking an order of protection against her husband, who the police said had choked her, kicked her in the stomach and threatened to kill her. The justice, Donald R. Roberts, a former state trooper with a high school diploma, not only refused, according to state officials, but later told the court clerk, “Every woman needs a good pounding every now and then.”
A black soldier charged in a bar fight near Fort Drum became alarmed when his accuser described him in court as “that colored man.” But the village justice, Charles A. Pennington, a boat hauler and a high school graduate, denied his objections and later convicted him. “You know,” the justice said, “I could understand if he would have called you a Negro, or he had called you a nigger.”
And several people in the small town of Dannemora were intimidated by their longtime justice, Thomas R. Buckley, a phone-company repairman who cursed at defendants and jailed them without bail or a trial, state disciplinary officials found. Feuding with a neighbor over her dog’s running loose, he threatened to jail her and ordered the dog killed. “I just follow my own common sense,” Mr. Buckley, in an interview, said of his 13 years on the bench. “And the hell with the law.”
The New York Times spent a year examining the life and history of this largely hidden world, a constellation of 1,971 part-time justices, from the suburbs of New York City to the farm towns near Niagara Falls.
It is impossible to say just how many of those justices are ill-informed or abusive. Officially a part of the state court system, yet financed by the towns and villages, the justice courts are essentially unsupervised by either. State court officials know little about the justices, and cannot reliably say how many cases they handle or how many are appealed. Even the agency charged with disciplining them, the State Commission on Judicial Conduct, is not equipped to fully police their vast numbers.
ut The Times reviewed public documents dating back decades and, unannounced, visited courts in every part of the state. It examined records of closed disciplinary hearings. It tracked down defendants, and interviewed prosecutors and defense lawyers, plaintiffs and bystanders.
The examination found overwhelming evidence that decade after decade and up to this day, people have often been denied fundamental legal rights. Defendants have been jailed illegally. Others have been subjected to racial and sexual bigotry so explicit it seems to come from some other place and time. People have been denied the right to a trial, an impartial judge and the presumption of innocence.
In 2003 alone, justices disciplined by the state included one in Montgomery County who had closed his court to the public and let prosecutors run the proceedings during 20 years in office. Another, in Westchester County, had warned the police not to arrest his political cronies for drunken driving, and asked a Lebanese-American with a parking ticket if she was a terrorist. A third, in Delaware County, had been convicted of having sex with a mentally retarded woman in his care.
New York is one of about 30 states that still rely on these kinds of local judges, descendants of the justices who kept the peace in Colonial days, when lawyers were scarce. Many states, alarmed by mistakes and abuse, have moved in recent decades to rein in their authority or require more training. Some, from Delaware to California, have overhauled the courts, scrapped them entirely or required that local judges be lawyers.
But New York has no such requirement. It demands more schooling for licensed manicurists and hair stylists. And it has left its justices with the same powers — more than in many states — even though governors, blue-ribbon commissions and others have been denouncing the courts as outdated and unjust since as far back as 1908, when a justice in Westchester County set up a roadside speed trap, fining drivers for whatever cash they were carrying.
Nearly a century later, a 76-year-old Elmira man who contested a speeding ticket in Newfield, outside Ithaca, was jailed without even a warning for three days in 2003 because he called the sheriff’s deputy a liar. “I thought, this is not America,” said the man, Michael J. Pronti, who spent two years and $8,000 before a state appeals court ruled that he had been improperly jailed.
‘Justice in the Dark’
It is tempting to view the justice courts as weak and inconsequential because the bulk of their business is traffic violations. Yet among their 2.2 million cases, the courts handle more than 300,000 criminal matters a year. Justices can impose jail sentences of up to two years. Even in the smallest cases, some have wielded powers and punishments far beyond what the law allows.
The reason is plain: Many do not know or seem to care what the law is. Justices are not screened for competence, temperament or even reading ability. The only requirement is that they be elected. But voters often have little inkling of the justices’ power or their sometimes tainted records.
For the nearly 75 percent of justices who are not lawyers, the only initial training is six days of state-administered classes, followed by a true-or-false test so rudimentary that the official who runs it said only one candidate since 1999 had failed. A sample question for the justices: “Town and village justices must maintain dignity, order and decorum in their courtrooms” — true or false?
The result, records and interviews show, is a second-class system of justice.
The first class — the city, county and higher courts — is familiar to anyone who has served on a jury or watched “Law & Order”: hardly perfect, but a place of law-schooled judges, support staffs and strict rules. The lower and far larger rung of town and village courts relies on part-time justices, most of them poorly paid, some without a single clerk. Those justices — two-thirds of all the state’s judges — are not required to make transcripts or tape recordings of what goes on, so it is often difficult to appeal their decisions.
When they stray badly, the Commission on Judicial Conduct — a panel of lawyers, judges and others — can do little more than try to contain the damage. Some 1,140 justices have received some sort of reprimand over the last three decades — an average of about 40 a year, either privately warned, publicly rebuked or removed. They are seriously disciplined at a steeper rate than their higher-court colleagues.
The Office of Court Administration, which runs the state court system, makes little pretense of knowing much about what happens in the justice courts. Beyond their names, ages and addresses, it has little information about the justices. Because they are paid by the towns and loosely tied into the court system, “we have limited administrative control, and very, very limited financial control,” said Jan H. Plumadore, the deputy chief administrative judge for all courts outside New York City.
The courts also handle money — more than $200 million a year in fines and fees. But the state comptroller’s office, which once conducted scores of justice-court audits every year, now does only a handful. When it looked most recently, auditing a dozen courts in May, it reported serious financial-management problems and estimated that millions of dollars a year might be missing from the justice courts statewide.
Norman P. Effman has been the public defender for 16 years in Wyoming County, where he said only one of the 37 justices was a lawyer. In testimony last year, he described the justice courts as a forgotten realm: a “closed door, back of someone’s house, in the barn, in the highway department, no record” justice system. “The reality is,” he told a state commission, “if you keep justice in the dark, it stays in the dark.”
That commission, which was studying how the court system treats poor people, issued a study in June saying the justice courts remained “a fractured and flawed system.” And in recent days, the Office of Court Administration has said it plans to begin addressing some of those failings — for instance, taking steps to double the amount of initial training and to ensure that proceedings are recorded. But those measures do not address some of the most serious problems: the use of justices who are not lawyers, and the state’s weak oversight.
This is not the first time the justice courts have come under scrutiny. “Probably the most unsatisfactory feature of the administration of criminal law remaining in the state today is the obsolete and antiquated institution known as the justice of the peace,” another state commission concluded.
The year was 1927.
A Record of Trouble
Certainly, there are worthy justices, and defenders of the system say the good far outnumber the bad. Those supporters, chiefly the justices themselves and the local political leaders who often select them, contend that hometown judges know the hometown problems — and the problem people — and can tailor common-sense solutions. And, they have argued, putting lawyers in charge of all the courts could cost the state tens of millions of dollars. “It is the most efficient, low-cost method of ensuring that the people of the state receive justice,” said Thomas R. Dias, a town justice in Columbia County who is president of the State Magistrates Association, the justices’ organization. But the record shows otherwise in hundreds of disciplinary cases — most of them unknown to the public.
In the Catskills, Stanley Yusko routinely jailed people awaiting trial for longer than the law allows — in one case for 64 days because he thought the defendant had information about vandalism at the justice’s own home, said state officials, who removed him as Coxsackie village justice in 1995. Mr. Yusko was not even supposed to be a justice; he had actually failed the true-or-false test.
Outside Rochester, in Le Roy, a justice who is still in office concocted false statements, state officials said, to help immigration officials deport a Hispanic migrant worker in 2003. Although the man had pleaded not guilty to trespassing, the town justice, Charles E. Dusen, issued a court order saying he had been convicted. In an interview, Justice Dusen said he tried to right his wrong after the worker’s lawyer complained. But the man was still deported.
Last December, disciplinary officials disclosed that in a five-year period, a Rochester-area justice had mistakenly imposed $170,000 in traffic fines beyond what the law allowed. And in June, a justice in western New York was disciplined for threatening to jail a man — and warning him to “bring a couple thousand in bail money” — over a complaining phone message the man had left him.
Even the commuter towns around New York City, where the justices are typically lawyers, have endured the system’s abuses.
In Mount Kisco, people who asked for the court’s sympathy were treated to sarcasm: Justice Joseph J. Cerbone would pull out a nine-inch violin and threaten to play. Mr. Cerbone phoned one woman and talked her out of pressing abuse charges against the son of former clients, state records show. But it took eight years, and evidence that he had taken money from an escrow account, before the State Court of Appeals removed him in 2004 after a quarter-century in office. In interviews, many of these justices disputed the findings against them, saying the Commission on Judicial Conduct was unfair and determined to end the justice courts. Commission officials say they have no such agenda.
And the agency is struggling itself. Charged with policing all the state’s courts, it can do no more than respond to complaints. Its staff has shrunk by more than half in the last two decades, with just two investigators for the western half of the state. So commission officials were surprised to learn last year that a western New York justice who had resigned while facing disciplinary charges was back on the bench.
The commission twice disciplined the town justice, Paul F. Bender of Marion, for deriding women in abuse cases. Arraigning one man on assault charges, he asked the police investigator whether the case was “just a Saturday night brawl where he smacks her and she wants him back in the morning.” But the commission spared him removal in 1999 because he was not seeking re-election. Four years later Mr. Bender ran again anyway, unbeknownst to the commission, for a term that will not expire until 2007. Robert H. Tembeckjian, the commission’s administrator, said, “Our working assumption is, a judge who resigns while under disciplinary charges by the commission is not going to return to the bench.” But he would not say whether his agency would — or could — take any action against Justice Bender.
‘I’m Not a Lawyer’
A 17-year-old girl had stayed out all night, then fought with her family and wound up facing a harassment charge in court in Alexandria Bay, a busy tourist village on the St. Lawrence River. The justice, Charles A. Pennington, a boat hauler with 23 years on the bench, took her not-guilty plea on a Sunday in 2003. But when told that the girl had no place to go, the judge did not send her to a women’s shelter or alert social service officials, as local justices typically do. He took her home. “I left the court kind of in shock,” a police officer later testified. “I’ve never heard of anything like this before.” The girl’s mother, Keitha Rogers, said in an interview that she was appalled to find her daughter at the home of the justice, then 61, as he sat drinking with another man. “Sure, he can tell the difference between the stern and the bow,” Ms. Rogers said. “But what does that have to do with making major judgments about people’s lives?”
The judicial conduct commission, which ordered Justice Pennington’s removal last fall for this and other lapses, ruled that while there was no evidence he had made any improper advances toward the girl, who left after about an hour, he had shown “extraordinarily poor judgment.” And while Mr. Pennington argued that he had not been drinking, he did not entirely disagree with the findings. “Granted, there is mistakes,” said the justice, who resigned before the commission ruled. “I’m not a lawyer.” Neither are most of his peers. And that is pretty much all the state knows about them. Office of Court Administration officials say the only way they usually find out a new justice has been elected is if local officials notify them.
For decades, the agency has asked justices to fill out modest biographical questionnaires, then filed away the answers. Under freedom of information law, The Times obtained questionnaires completed by more than 1,800 current justices; they portray a group that is often poorly educated and poorly paid, even though the law they are dealing with is increasingly complex.
Of those who are not lawyers, about a third — more than 400 — had no formal education beyond high school. At least 40 did not complete high school, though several went on to earn equivalency degrees.
Interviews with more than 60 justices made it clearer who many of these people are: retirees, farmers, mechanics, former police officers and others with flexible schedules or seasonal work. Most look something like Mr. Pennington: white, and graying. At least 30 justices are in their 80’s, well beyond the mandatory retirement age, 70, for other New York judges.
Though the justices’ pay is often meager — as little as $850 a year — they can set bail, a basic legal safeguard. They hold crucial preliminary hearings in felony cases and conduct trials on misdemeanors. They preside over civil cases with claims of up to $3,000, and landlord-tenant disputes with no dollar limit, including commercial cases involving hundreds of thousands of dollars.
And then there are the powers they simply take.
In what the Commission on Judicial Conduct called “a shocking abuse of judicial power,” Justice Roger C. Maclaughlin single-handedly went after a man he decided was violating local codes on the keeping of livestock in Steuben, near Utica. The justice interviewed witnesses, tipped off the code-enforcement officer, lobbied the town board to deny the man approval to run a trailer park, then jailed him for 10 days without bail — or even a chance to defend himself, the commission said. In an interview, Justice Maclaughlin said the commission seemed to be chasing legal technicalities rather than real justice.
An Essex County town justice, Richard H. Rock, jailed two 16-year-olds overnight without a trial, saying he wanted “to teach them a lesson.” They had been accused of spitting at two other people and charged with harassment. Then he sent them back for 10 more days, the commission said, without ever advising them they had a right to a lawyer.
In 2001, the commission punished him and Justice Maclaughlin with censure, the most serious penalty short of removal from the bench. Justice Maclaughlin is now in his 11th year in office. Justice Rock is in his 10th.
In Alexandria Bay, where Justice Pennington presided at a metal desk in a tiny room inside the police building, a quarter-century in office did not seem to deepen his understanding of his role. Just three days after he took home the 17-year-old girl, another case raised fresh questions about his familiarity with the law, or even the world outside his court.
Eeric D. Bailey, a 21-year-old black soldier from nearby Fort Drum, was facing a disorderly conduct charge after a tussle with a white bar bouncer. Sitting three feet from Mr. Bailey, the bouncer identified him as “that colored man.” Mr. Bailey’s jaw dropped. The soldier, who did not have a lawyer, told the judge that the term was offensive. But Justice Pennington said that while certain other words were racist, “colored” was not. “For years we had no colored people here,” he said.
The commission had heard worse. After arraigning three black defendants arrested in a college disturbance in 1994, a justice in the Finger Lakes region said in court, “Oh, it’s been a rough day — all those blacks in here.” A few years before that, a Catskill justice reminisced in court that it was safe for young women to walk around “before the blacks and Puerto Ricans moved here.”
In an interview, Justice Pennington said the commission had treated him unfairly. But he may not have helped his case when he told the commission that “colored” was an acceptable description. “I mean, to me,” he testified, “colored doesn’t preferably mean black. It could be an Indian, who’s red. It could be Chinese, who’s considered yellow.”
As the blunders, and worse, have piled up over the years, so have the muffled complaints from within the system. Transcripts of the commission’s disciplinary hearings, which are usually closed to the public, show that some justices have nearly begged for more training, or any kind of help.
Anthony Ellis, a meat cutter who routinely jailed defendants in Tupper Lake to coerce them into pleading guilty, neatly summed up his insecurities in one closed hearing: “I’m almost like a pilot flying by the seat of my pants.”
William G. Mayville, a retired factory worker who turned his courtroom in nearby Fort Covington into a collection agency for local business owners, offered a quietly damning explanation: “I certainly am only a simple man doing a job that, you know, the very best I can do with a limited amount of education that they offered me.”
Simple men, and their simple wisdom, are the whole idea behind the justice courts. A 13th-century English institution, the justice of the peace was imported to the colonies in the 1600’s along with a fundamental notion: that laymen could settle small-bore cases with practical solutions grounded in local custom or common sense.
But as life, and the law, became vastly more complex by the mid-20th century, several states, including California, New Jersey and Connecticut, created more professional local courts.
In Delaware, where the appointed local magistrates have less authority than New York’s justices, the state screens candidates with academic and psychological tests, and starts them off with 11 weeks of training. “It is a reflection of the view that when we’re dealing with people’s livelihood, when we’re dealing with people’s freedom, we’re going to take this seriously,” said the chief magistrate, Alan G. Davis, a lawyer.
In New York, the justice courts have been replaced by state-financed district courts, with lawyer judges, in Nassau County and western Suffolk County. But the last major calls for statewide reform sputtered out in the early 1980’s, and the amount of training for justices has not changed. Those without law degrees must take six days of classes at the start. Lawyers do not have to attend, but all justices must take a 12-hour refresher course once a year.
Maryrita Dobiel, who runs the training program for the Office of Court Administration, said the classes provide an introduction to legal principles, but not much more, given a student body with such varying levels of education. “We have to teach to the lowest common denominator,” she said. General principles of criminal law, a subject that takes up a semester or more in law school, gets about five hours.
At training’s end, justices must score at least 70 percent on a test of 50 questions, all true or false. Those who fail can retake the course, and the test. “We don’t decide whether they’re qualified to be a judge,” Ms. Dobiel said. “The people who have elected them have already made that decision.”
The real test comes on the bench.
Several justices have threatened to arrest litigants in small-claims cases, showing they do not understand the difference between civil and criminal cases. Others have told the judicial conduct commission that they disagreed with the constitutional guarantee that a defendant is entitled to a lawyer.
John D. Cox, a quarry manager in Le Ray, near Watertown, summarily jailed people who were unable to pay fines, the commission said. But he received the lightest public penalty, an admonition, in 2002 after he explained that in 22 years in office, he had never been taught that state law allows defendants a new hearing and a lawyer when they say they cannot pay their fine.
The justices do have something of a lifeline: They can call a resource center near Albany where four lawyers field more than 18,000 questions a year. But there are limits on what the center tries to do. “We tell them what their options are,” said the center’s supervisor, Paul Toomey. “We don’t tell them they’re wrong.”
Power and Prejudice
Few people who came to his court ever told Donald R. Roberts he was wrong. A strapping former state trooper, he was working as a gas-company truck driver when he was appointed village justice in Malone, near the Canadian border, in 1993. When he was removed five years later, the Commission on Judicial Conduct dispatched him with a stinging description: “a biased, mean-spirited, bullying judge.” It was Justice Roberts who declared that women needed “a good pounding.” He had already battled with the county district attorney over his resistance to granting orders of protection. When a village resident asked that the dentist suing him be forced to come to court to prove his case, Justice Roberts told the man, who had a Hispanic surname: “You’re not from around here, and that’s not the way we do things around here.” The justice did not mention that the plaintiff was his own dentist.
A common argument in favor of New York’s justice courts is that local judges know the people and problems that come before them. But that can be a problem itself when justices use those prejudices to favor friends and ride herd over others. “They have their own little fiefdoms,” said Laurie Shanks, an Albany Law School professor. “Some are benevolent despots, but despots nonetheless.” Again and again, the commission’s records show, justices have failed to remove themselves from cases involving their own families.
In this department, Pamela L. Kadur may hold a record. As town justice in Root, west of Schenectady, she presided over at least seven cases involving relatives, who often received lenient treatment, the commission said when it ordered her removal in 2003. Justice Kadur heard a speeding case against her son in her own kitchen, then tried to cover up their family relationship in record books, the commission said, by misspelling his last name.
One longtime town justice near Albany let a friend who owned a driving school sit with him at the bench; when the justice ordered anyone to take a driver-training course, only the friend’s school was acceptable. Another justice, in Rensselaer County, told a trucker charged with drunken driving that he would not suspend his license because “I can’t do that to a fellow truck driver.”
Historically, large numbers of the justices have been former law enforcement officers, and lawyers complain that many have unfairly favored the police and prosecutors.
Some justices, unsure of the law, have also come to rely too much on the authorities. Elaine M. Rider, who presided in Waterville, near Utica, fretted that she did not “really have the time to puzzle this out” when a criminal defendant argued that evidence had been seized illegally. So she had the prosecutor write her decision, the commission said. But one of the most common prejudices on view in the commission’s files is far more basic, and it can be found as often in the big-city suburbs that have official-looking courthouses and lawyers on the bench.
In 20 years in office in Haverstraw, north of New York City in Rockland County, Justice Ralph T. Romano drew attention for his opinions on women, state files show. Arraigning a man in 1997 on charges that he had hit his wife in the face with a telephone, he laughed and asked, “What was wrong with this?” Arraigning a woman on charges that she had sexually abused a 12-year-old boy, the justice asked his courtroom, “Where were girls like this when I was 12?”
Across the Hudson, Joseph Cerbone, the Mount Kisco justice with the miniature violin, persuaded a young woman to drop her abuse case against the son of a couple he had done legal work for. She told the commission that while she did not believe the justice’s claim that the son was “a decent guy” who had “made a mistake,” she had no choice. “I kind of felt I had no one behind me, no support,” she said. “And by getting a phone call from a judge, I felt that maybe I was making a mistake by going through with these charges.” But the human damage can be much worse in the small communities where the justice is often the most powerful local official.
In 11 years as justice in Dannemora, in the North Country, Thomas R. Buckley had his own special treatment for defendants without much money: Even if they were found not guilty, he ordered them to perform community service work to pay for their court-appointed lawyers, although defense lawyers and the district attorney had reminded him for years that the law guaranteed a lawyer at no cost. “The only unconstitutional part,” he told the commission before it removed him in 2000, “is for these freeloaders to expect a free ride.” He twice jailed David Velie, a 19-year-old charged with a misdemeanor, even though the law required him to set bail. In an interview, Mr. Buckley explained that the young man had been a troublemaker “ever since he was born.” Like many small-town justices, he said many of his decisions were down-to-earth solutions. “You’ve got to use your own judgment,” he said. “That’s why they call us judges. The law is not always right.”
Some residents say that without the law to protect them, they lived in fear. Debra E. Bordeau, the justice’s neighbor, said she went into hiding after he threatened to jail her in a dispute over her dog, which he ordered destroyed.
And Carson F. Arnold Sr., a contractor from a nearby town, was jailed for five days after a woman who knew Justice Buckley complained that Mr. Arnold had threatened her, the commission said. There was no trial. The justice simply told Mr. Arnold to shut up, then sentenced him without bail. “How many years did he treat people like this?” Mr. Arnold asked in an interview. “How many people did this affect?”
A Culture of Secrets
The feeling of powerlessness often begins at the courthouse door. Many justices preside in intimidatingly tight quarters, admitting participants one by one. Many have heard testimony, settled claims or ruled in criminal cases without notifying the prosecutor, lawyers or even the people directly involved. Some justices can be very selective, state records show: At a 1999 criminal trial in Kinderhook, south of Albany, Justice Edward J. Williams admitted everyone but the victim’s lawyer.
Court sessions may be just as unpredictable — held infrequently or at odd hours, or canceled without notice. In 2004, the NAACP Legal Defense and Educational Fund found that people awaiting trial in Schuyler County in the Finger Lakes were jailed for months simply waiting for court to convene again. A high school student arrested on a minor drug charge in the summer of 2003, it said, was still sitting in jail in October.
But the biggest obstacle of all is pinning down what happens in the courtrooms.
A Rochester poverty lawyer, Laurie Lambrix, said that when she appealed the case of a mother of six — a black woman evicted in 1999 by a white landlord who she said had made racist comments — a justice in nearby Gates told her she could not examine the court file of her own client. “I knew court records were public records,” Ms. Lambrix said. “I couldn’t believe a judge would be ignorant of that.” She was lucky; at least there were records, which she eventually obtained. In many justice courts, it is next to impossible to reconstruct what happened. Some towns spring for a stenographer or taping system, and some justices try to scrawl notes while they preside. But in some cases, there are not even notes.
When someone does appeal, the law requires that justices write a summary of the case. Justices said in interviews that their decisions were rarely appealed, anyway, and even more rarely overturned. The Commission on Judicial Conduct, then, remains the last line of oversight for justices, and only for those who have stirred up enough concern to be reported by a prosecutor, lawyer or citizen. But the panel is stretched thin — “persistently and acutely underfunded,” as it lamented in one annual report. Its statewide staff, which numbered 63 in 1978 when it began, is down to 29.
Supporters of the justice courts have long maintained that they are no worse than the higher courts, citing commission statistics that show justices are disciplined at about the same rate as their higher-court colleagues. But responding to questions from The Times, commission officials studied the agency’s three-decade record and found — to their surprise — that cases against local justices were more likely to result in serious punishments.
Although the justices make up about 66 percent of all New York judges, they constitute 76 percent of the 147 judges who have been removed from office.
Last year, six justices were publicly disciplined for the second time, more repeat offenders than ever. But Mr. Tembeckjian, the commission administrator, said the agency had no way to keep a closer eye on them. “It would be in the public interest for the commission to make sure that a judge who was identified as having a problem has corrected it,” he said. “But we simply don’t have the resources to do it.”
Lawrence S. Goldman, the commission’s chairman until April, said all justices should be lawyers. His successor, the divorce lawyer Raoul Felder, would not discuss the quality of the justice courts, but predicted that a reckoning was at hand. “This is something that’s going to have to be addressed by the next governor,” he said. “There is a controversy here, and this issue has not been addressed for many, many years.” The New York Times http://www.nytimes.com/2006/09/25/nyregion/25courts.html?_r= 1&th=&oref=slogin&emc=th&pagewanted=print
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|Posted: 05 October 2006 at 6:17pm|
Denver Man Sues Secret Service for Arrest After He Criticized Cheney on Iraq War
10.5.2006 -- Yesterday, a federal lawsuit was filed against the U.S government alleging civil rights violations. The lawsuit was filed by Steven Howards - an environmental consultant in Colorado - who was arrested in June after he approached Vice President Dick Cheney and denounced the war in Iraq. The lawsuit is the third one that's been filed charging that Secret Service agents or White House staff members violated the law when they attempted to keep people with opposing views away from President Bush or Cheney. In another suit pending in Colorado, two people say they were kicked out of a public event where Bush was speaking because of an anti-war bumper sticker. And in West Virginia the ACLU has filed a lawsuit on behalf of two people who were arrested at an appearance by Bush because they were wearing anti-Bush t-shirts.
AMY GOODMAN: Steven Howards joins us now from Denver, where he filed the suit on Wednesday in federal district court. Welcome to Democracy Now!
STEVEN HOWARDS: Thank you.
AMY GOODMAN: It’s good to have you with us. Why don't you explain exactly what happened? What day was it?
STEVEN HOWARDS: I think it was the middle of June, and I was in Beaver Creek, Colorado, with my two kids, accompanying them to a piano camp. And that morning, I had read about the deaths, the rising death toll in Iraq. And who walks by me, but Mr. Cheney. And to be honest, I couldn't resist the temptation. So I approached Mr. Cheney and told him that I thought his policies in Iraq were absolutely reprehensible.
AMY GOODMAN: Just one sec. He, by himself, walked by you in a mall? Vice President Dick Cheney?
STEVEN HOWARDS: Well, you know, yes. There was apparently -- Gerald Ford has an annual kind of get-together of political VIPs, if you will, that -- I don't know -- discuss world issues. And I was fortunate enough to have the opportunity to cross Mr. Cheney. Mr. Cheney was actually going across an outdoor mall, kind of a pedestrian mall, in Beaver Creek, Colorado. And there were lots of Secret Service agents, but he was walking through, taking some time, shaking hands. There were probably more Secret Service agents there than there were members of Joe Public. But I, you know, I waited my turn, and I walked up to Mr. Cheney, and I told him what I thought. And then I quickly exited, because I didn't want to create a scene or give anyone opportunity to cause me any problems.
AMY GOODMAN: And so, what happened next?
STEVEN HOWARDS: Well, I then continued on, took my child to piano camp, came back about ten minutes later, because if you know this area, you've got to pass through the same area. And I was approached by a Secret Service agent, who accused me of assaulting the Vice President. My eight-year-old son was standing next to me at that point in time. His exact words were, “Did you assault the Vice President?” And I said, “No, I didn't. But I did tell him the way I felt about the war in Iraq, and if Mr. Cheney wanted to be shielded from public criticism, he should avoid public places.”
And I closed by telling the agent that if freedom of speech was against the law, he should arrest me, at which point he grabbed me, cuffed my hands behind my back and started carting me across the mall. I stopped and told him I could not abandon my eight-year-old son in the middle of a public mall, at which point he responded, “We'll call Social Services.” Fortunately, on the way out, we passed my wife, who -- my son was with my wife. He had run off in terror. He wouldn't even talk, he was so scared.
They took me to jail, with my hands cuffed behind my back for three hours. The Secret Service agent told my wife, myself and anyone else that would listen that I was being charged with assaulting the Vice President. Those charges were later reduced to harassment. And two weeks later or three weeks later, the charges were dismissed altogether.
AMY GOODMAN: What happened to you during that time? During that two weeks, did other people see you being arrested? Did they know who you were?
STEVEN HOWARDS: Oh, yeah. Oh, absolutely. No, it was a scene. I was treated as though I was a convict, like criminal. It was horrifying for my kids. And so we waited for a few weeks. Actually, we left. We were going on vacation. We left a few days later. This actually happened two days before Father's Day, so it was quite a memorable Father's Day, as you can imagine. We left a few days later for our vacation, and we got back. In the mail, there was a notice that the charges had been dismissed. Apparently, the Secret Service had come to my office and to try to see me, and they would not leave their names. It was very Gestapo-ish, I must say. But I never returned their calls, and I have no reason why they came to my place of work. And that's it.
AMY GOODMAN: And why have you decided to sue the government now?
STEVEN HOWARDS: You know, because it's such a transparent attempt to suppress free speech. You know, we view the suppression of free speech and -- my family, we view the suppression of free speech and the assault that this administration has made on our constitutional rights to free speech as a greater threat to the future of this country than Osama bin Laden ever will be. You know, first this administration argued that if you criticize their policies, you were in fact providing support to people like Osama bin Laden. You were boosting the threat to national security. Then they suggested that if you oppose their policies, you were actually equivalent to a Nazi sympathizer.
You know, the nation is united on the need to fight terror. That's not an issue. The question is, the issue is how this administration has gone about choosing to do that. And lots of people are very upset about that.
And now, the administration has forged the final link by suggesting that if you exercise your constitutional rights to free speech in opposing this administration's policies in Iraq, you are therefore posing a threat to national security and subject to arrest. And I don't know about the rest of America, but I find that thought and that logic, that twisted logic, absolutely terrifying. So we brought the lawsuit to really expose this issue and to raise the question of, do we in fact still live in a free nation, where people are free to express their opposition to government policies?
AMY GOODMAN: What are you asking for?
STEVEN HOWARDS: Right now, we're asking for a jury to -- we're actually deferring to a jury to decide what the resolution to this matter should be. We're asking for some acknowledgement by the Secret Service and by the administration that people have a right to free speech. We're asking for an apology to my kids for the wrongful arrest and search that occurred. And if any financial rewards or any financial settlement comes of this, that's great, but that's not the goal of the lawsuit. And if any financial rewards come, they'll go to a charitable organization. That's not our goal here. Our goal here is to prove a point.
AMY GOODMAN: Isn't the Vice President immune from prosecution as he sits in office?
STEVEN HOWARDS: Yeah, well, actually this is a civil suit. And it's against the Secret Service officer who did the arrest. After he arrested us and, again, threatened my wife and myself, saying he was going to spend all day Monday in the U.S. attorney's office ensuring that felony assault charges were brought against us, he then gave us his business card. So we know exactly who arrested us. And this is actually a civil suit against the Secret Service agent.
AMY GOODMAN: Steven Howards, I want to thank you very much for being with us. Again, arrested a few days before Father's Day on harassment charges, first on assault charges, then lowered to harassment charges, for approaching Dick Cheney in a mall in Colorado.
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