Cross Race Witness Identification in Crimes can be flawed…

Race sometimes a problem in eyewitness IDs

By MARK SHERMAN, Associated Press WriterSun Aug 10, 9:23 AM ET

In the midst of being raped, Jennifer Thompson-Cannino told herself to pay attention to details that would allow her to identify her attacker.

She was able to give police in North Carolina a description that led to a sketch of the suspect. Then she identified a man from photographs, picked him out of a lineup and told jurors she was certain he was the rapist.

That man, Ronald Cotton, received a life sentence and spent more than 10 years in prison before DNA testing cleared him of the crime.

Now victim and the innocent man she helped convict are writing a book together.

Thompson-Cannino, who is white, had mistakenly picked out one black man; another was guilty of the crime.

“Between the composite sketch and the photo identification, I had messed it up,” she said, recalling the 1984 rape and its aftermath. “By the time I got to the physical lineup, Ron Cotton had become my attacker and that was that.”

And as she came to learn, she was not the only one to make a mistake so devastating that it deprived someone else of his freedom.

Since 1991, 218 people have been exonerated through DNA testing, and in more than three-quarters of the cases, mistaken eyewitness identifications were crucial in the wrongful convictions, according to The Innocence Project, a legal group that has sought genetic testing and led the charge to free innocent inmates.

Of those, nearly half, roughly seven dozen, involved a person of one race wrongly identifying someone of a different color.

Even people with training in law enforcement confront the difficulty of accurate identifications. Boston Police Sgt. Gregory Gallagher, who is white, identified Stephan Cowans, who was black, as the man who shot him twice with Gallagher’s own police-issue gun in 1997.

Several years later, testing on a sweat shirt, cap and glass that the suspect wore or touched ruled out Cowans as the shooter. His case was also plagued by misidentification of a fingerprint.

Cowans was released from prison after serving 5 1/2 years. He was found shot to death in his home last year.

The American Bar Association, meeting in New York, is considering whether to recommend that judges use their discretion to make juries aware of the problems that can plague cross-racial identifications.

California, Massachusetts, New Jersey and Utah already employ such instructions in some cases.

“The majority race is not as good at identifying minorities as it is its own race. This is hard-wired in some way that we don’t completely understand. But the phenomenon should be presented to the jury,” said Barry Scheck, co-founder of The Innocence Project.

Prosecutors, however, do not want judges to raise the issue with juries.

“This is not an appropriate area for judges to go into,” said Josh Marquis, district attorney in Astoria, Ore., and a member of the executive committee of the National District Attorneys Association. “Yes, eyewitness ID across races has its issues. But is there a rampant problem to the degree that we need to get judges to start telling juries this is the law? No.”

Some criminal justice experts believe that mistakes are so pervasive that nothing short of wholesale reforms in identification procedures will fix the problem.

This year, North Carolina became the first state to standardize identification procedures. That includes preventing the police officer who is investigating the crime from conducting photo identifications with witnesses and requiring that lineup photographs be shown one after another rather than in groups of six.

New software that was on display at the ABA’s annual meeting allows witnesses to use police laptop computers to identify photos of suspects in programs that do not vary from investigator to investigator or witness to witness.

The entire session is recorded and defense lawyers are able to obtain digital copies of the photos and the audio. Defense lawyers have complained in the past that authorities often do not turn over the photos used to identify suspects, leaving them no way to measure if the process was tainted.

Thompson-Cannino was 22 when she was raped. She is now the mother of 18-year-old triplets in Winston-Salem, N.C. She was changing the sheets on their beds when she spoke to The Associated Press by telephone recently.

Her experience has made her an advocate for criminal justice reform.

She and Cotton, who also lives in North Carolina, are at work on a book called “Picking Cotton,” that is to be published next year.

“It’s a memoir of our journey through the system, also of forgiveness and redemption,” she said.

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Discussion Questions:

1) Should lawyers be allowed to question a cross-race identification of a witness, as described above, during a trial?

2) Should a judge be required to instruct a jury that cross-race identifications can be flawed?

3) If someone misidentifies a person of the opposite race, should they be held criminally liable, i.e. charged with a crime?

Free Speech Online?

Public’ online spaces don’t carry speech, rights

By ANICK JESDANUN, AP Internet WriterSun Jul 6, 2:17 PM ET

Rant all you want in a public park. A police officer generally won’t eject you for your remarks alone, however unpopular or provocative.

Say it on the Internet, and you’ll find that free speech and other constitutional rights are anything but guaranteed.

Companies in charge of seemingly public spaces online wipe out content that’s controversial but otherwise legal. Service providers write their own rules for users worldwide and set foreign policy when they cooperate with regimes like China. They serve as prosecutor, judge and jury in handling disputes behind closed doors.

The governmental role that companies play online is taking on greater importance as their services — from online hangouts to virtual repositories of photos and video — become more central to public discourse around the world. It’s a fallout of the Internet’s market-driven growth, but possible remedies, including government regulation, can be worse than the symptoms.

Dutch photographer Maarten Dors met the limits of free speech at Yahoo Inc.’s photo-sharing service, Flickr, when he posted an image of an early-adolescent boy with disheveled hair and a ragged T-shirt, staring blankly with a lit cigarette in his mouth.

Without prior notice, Yahoo deleted the photo on grounds it violated an unwritten ban on depicting children smoking. Dors eventually convinced a Yahoo manager that — far from promoting smoking — the photo had value as a statement on poverty and street life in Romania. Yet another employee deleted it again a few months later.

“I never thought of it as a photo of a smoking kid,” Dors said. “It was just of a kid in Romania and how his life is. You can never make a serious documentary if you always have to think about what Flickr will delete.”

There may be legitimate reasons to take action, such as to stop spam, security threats, copyright infringement and child pornography, but many cases aren’t clear-cut, and balancing competing needs can get thorny.

“We often get caught in the middle between a rock and a hard place,” said Christine Jones, general counsel with service provider GoDaddy.com Inc. “We’re obviously sensitive to the freedoms we have, particularly in this country, to speak our mind, (yet) we want to be good corporate citizens and make the Internet a better and safer place.”

In Dors’ case, the law is fully with Yahoo. Its terms of service, similar to those of other service providers, gives Yahoo “sole discretion to pre-screen, refuse or remove any content.” Service providers aren’t required to police content, but they aren’t prohibited from doing so.

While mindful of free speech and other rights, Yahoo and other companies say they must craft and enforce guidelines that go beyond legal requirements to protect their brands and foster safe, enjoyable communities — ones where minors may be roaming.

Guidelines help “engender a positive community experience,” one to which users will want to return, said Anne Toth, Yahoo’s vice president for policy.

Dors ultimately got his photo restored a second time, and Yahoo has apologized, acknowledging its community managers went too far.

Heather Champ, community director for Flickr, said the company crafts policies based on feedback from users and trains employees to weigh disputes fairly and consistently, though mistakes can happen.

“We’re humans,” she said. “We’re pretty transparent when we make mistakes. We have a record of being good about stepping up and fessing up.”

But that underscores another consequence of having online commons controlled by private corporations. Rules aren’t always clear, enforcement is inconsistent, and users can find content removed or accounts terminated without a hearing. Appeals are solely at the service provider’s discretion.

Users get caught in the crossfire as hundreds of individual service representatives apply their own interpretations of corporate policies, sometimes imposing personal agendas or misreading guidelines.

To wit: Verizon Wireless barred an abortion-rights group from obtaining a “short code” for conducting text-messaging campaigns, while LiveJournal suspended legitimate blogs on fiction and crime victims in a crackdown on pedophilia. Two lines criticizing President Bush disappeared from AT&T Inc.’s webcast of a Pearl Jam concert. All three decisions were reversed only after senior executives intervened amid complaints.

Inconsistencies and mysteries behind decisions lead to perceptions that content is being stricken merely for being unpopular.

“As we move more of our communications into social networks, how are we limiting ourselves if we can’t see alternative points of view, if we can’t see the things that offend us?” asked Fred Stutzman, a University of North Carolina researcher who tracks online communities.

First Amendment protections generally do not extend to private property in the physical world, allowing a shopping mall to legally kick out a customer wearing a T-shirt with a picture of a smoking child.

With online services becoming greater conduits than shopping malls for public communications, however, some advocacy groups believe the federal government needs to guarantee open access to speech. That, of course, could also invite meddling by the government, the way broadcasters now face indecency and other restrictions that are criticized as vague.

Others believe companies shouldn’t police content at all, and if they do, they should at least make clearer the rules and the mechanisms for appeal.

“Vagueness does not inspire the confidence of people and leaves room for gaming the system by outside groups,” said Lauren Weinstein, a veteran computer scientist and Internet activist. “When the rules are clear and the grievance procedures are clear, then people know what they are working with and they at least have a starting point in urging changes in those rules.”

But Marjorie Heins, director of the Free Expression Policy Project, questions whether the private sector is equipped to handle such matters at all. She said written rules mean little when service representatives applying them “tend to be tone-deaf. They don’t see context.”

At least when a court order or other governmental action is involved, “there’s more of a guarantee of due process protections,” said Robin Gross, executive director of the civil-liberties group IP Justice. With a private company, users’ rights are limited to the service provider’s contractual terms of services.

Jonathan Zittrain, a Harvard professor who recently published a book on threats to the Internet’s openness, said parties unhappy with sensitive materials online are increasingly aware they can simply pressure service providers and other intermediaries.

“Going after individuals can be difficult. They can be hard to find. They can be hard to sue,” Zittrain said. “Intermediaries still have a calculus where if a particular Web site is causing a lot of trouble … it may not be worth it to them.”

Unable to stop purveyors of child pornography directly, New York Attorney General Andrew Cuomo recently persuaded three major access providers to disable online newsgroups that distribute such images. But rather than cut off those specific newsgroups, all three decided to reduce administrative hassles by also disabling thousands of legitimate groups devoted to TV shows, the New York Mets and other topics.

Gordon Lyon, who runs a site that archives e-mail postings on security, found his domain name suddenly deactivated because one entry contained MySpace passwords obtained by hackers.

He said MySpace went directly to domain provider GoDaddy, which effectively shut down his entire site, rather than contact him to remove the one posting or replace passwords with asterisks. GoDaddy justified such drastic measures, saying that waiting to reach Lyon would have unnecessarily exposed MySpace passwords, including those to profiles of children.

Meanwhile, in response to complaints it would not specify, Network Solutions LLC decided to suspend a Web hosting account that Dutch filmmaker Geert Wilders was using to promote a movie that criticizes the Quran — before the movie was even posted and without the company finding any actual violation of its rules.

Service providers say unhappy customers can always go elsewhere, but choice is often limited.

Many leading services, particularly online hangouts like Facebook and News Corp.’s MySpace or media-sharing sites such as Flickr and Google Inc.’s YouTube, have acquired a cachet that cannot be replicated. To evict a user from an online community would be like banishing that person to the outskirts of town.

Other sites “don’t have the critical mass. No one would see it,” said Scott Kerr, a member of the gay punk band Kids on TV, which found its profile mysteriously deleted from MySpace last year. “People know that MySpace is the biggest site that contains music.”

MySpace denies engaging in any censorship and says profiles removed are generally in response to complaints of spam and other abuses. GoDaddy also defends its commitment to speech, saying account suspensions are a last resort.

Few service providers actively review content before it gets posted and usually take action only in response to complaints.

In that sense, Flickr, YouTube and other sites consider their reviews “checks and balances” against any community mob directed at unpopular speech — YouTube has pointedly refused to delete many video clips tied to Muslim extremists, for instance, because they didn’t specifically contain violence or hate speech.

Still, should these sites even make such rules? And how can they ensure the guidelines are consistently enforced?

YouTube has policies against showing people “getting hurt, attacked or humiliated,” banning even clips OK for TV news shows, but how is YouTube to know whether a video clip shows real violence or actors portraying it? Either way, showing the video is legal and may provoke useful discussions on brutality.

“Balancing these interests raises very tough issues,” YouTube acknowledged in a statement.

Unwilling to play the role of arbiter, the group-messaging service Twitter has resisted pressure to tighten its rules.

“What counts as name-calling? What counts as making fun of someone in a way that’s good-natured?” said Jason Goldman, Twitter’s director of program management. “There are sites that do employ teams of people that

do that investigation … but we feel that’s a job we wouldn’t do well.”

Other sites are trying to be more transparent in their decisions.

Online auctioneer eBay Inc., for instance, has elaborated on its policies over the years, to the extent that sellers can drill down to where they can ship hatching eggs (U.S. addresses only) and what items related to natural disasters are permissible (they must have “substantial social, artistic or political value”). Hypothetical examples accompany each policy.

LiveJournal has recently eased restrictions on blogging. The new harassment clause, for instance, expressly lets members state negative feelings or opinions about another, and parodies of public figures are now permitted despite a ban on impersonation. Restrictions on nudity specifically exempt non-sexualized art and breast feeding.

The site took the unusual step of soliciting community feedback and setting up an advisory board with prominent Internet scholars such as Danah Boyd and Lawrence Lessig and two user representatives elected in May.

The effort comes just a year after a crackdown on pedophilia backfired. LiveJournal suspended hundreds of blogs that dealt with child abuse and sexual violence, only to find many were actually fictional works or discussions meant to protect children. The company’s chief executive issued a public apology.

Community backlash can restrain service providers, but as Internet companies continue to consolidate and Internet users spend more time using vendor-controlled platforms such as mobile devices or social-networking sites, the community’s power to demand free speech and other rights diminishes.

Weinstein, the veteran computer scientist, said that as people congregate at fewer places, “if you’re knocked off one of those, in a lot of ways you don’t exist.”

Discussion Questions:

1. What kinds of speech should Internet companies be allowed to prohibit?

2. How should this list be the same or different from the current prohibitions on Free Speech (i.e. slander, libel, yelling “fire” in a crowded theater, etc.)

3. Should online speech restrictions be the same for minors as for adults? Why or why not?

4. How far should sites like Facebook and Myspace go in terms of policing the posting of their members? Defend your answer.

Rebels Tricked!

Betancourt: Rescue in Colombia was ‘impeccable’

The country of Columbia has been divided by rebels for the last decade or more. The rebels have had a strong hand for quite some time, via the taking of high profile hostages, including Americans. This article describes a recent situation where the rebels were tricked by a risky maneuver by the Columbian government?

By FRANK BAJAK, Associated Press Writer 26 minutes ago

Colombian spies tricked leftist rebels into handing over kidnapped presidential candidate Ingrid Betancourt and three U.S. military contractors Wednesday in a daring helicopter rescue so successful that not a single shot was fired.

Betancourt, who was seized on the campaign trail six long years ago, appeared thin but healthy as she strode down the stairs of a military plane and held her mother in a long embrace.

“Thank you for your impeccable operation,” she told top military commanders. “The operation was perfect.”

Eleven Colombian police and soldiers were also freed in the rescue, the most serious blow ever dealt to the 44-year-old Revolutionary Armed Forces of Colombia, which considered the four hostages their most valuable bargaining chips. The FARC is already reeling from the deaths of key commanders and the loss of much of the territory it once held.

Defense Minister Juan Manuel Santos said military intelligence agents infiltrated the guerrilla ranks and led the local commander in charge of the hostages, alias Cesar, to believe they were going to take them to Alfonso Cano, the guerrillas’ supreme leader.

The hostages, who had been divided in three groups, were taken to a rallying point where two disguised helicopters piloted by Colombian military agents were waiting. Betancourt said her hands and feet were bound.

“We were frustrated because we were handcuffed,” she said. “We were very indignant, very humiliated.”

Only when the helicopters were airborne did military crewmembers reveal their identity, she said.

“The chief of the operation said, `We’re the national army. You’re free,’” she said, adding that the hostages were so shocked, it was as if “the helicopter almost fell from the sky.”

Santos said Cesar and another rebel on board “were neutralized.” He didn’t elaborate, but said they were unhurt and would soon face justice. Santos said the other rebel captors retreated into the jungle and the army let them escape “in hopes that they will free the rest of the hostages,” believed to number about 700.

The operation, Santos said, “will go into history for its audacity and effectiveness.”

“We wanted to have it happen as it did today,” added armed forces chief Gen. Freddy Padilla. “Without a single shot. Without anyone wounded. Absolutely safe and sound, without a scratch.”

At a Bogota ceremony with top military commanders, the freed hostages walked up to a microphone one by one, identified themselves by name and rank, and thanked their rescuers. Some had been held for a dozen years, captured when rebels overran military outposts.

Last to speak was the French-Colombian Betancourt, who wore military fatigues and a floppy camouflage hat as she hugged her mother, Yolanda Pulecio, and her husband, Juan Carlos LeCompte. She removed her hat to reveal intricately braided dark hair, with plaits framing her face and a white flower.

In Paris, her son Lorenzo Delloye-Betancourt called her release “the most beautiful news of my life.” He and other relatives were flying to Colombia to join her.

The Americans — Marc Gonsalves, Thomas Howes and Keith Stansell — were flying directly to the United States to reunite with their families, Santos said.

They had been the longest-held American hostages in the world.

Gonsalves’ father George was mowing the yard of his Hebron, Connecticut, home when an excited neighbor relayed the news he had seen on television: “I didn’t know how to stop my lawnmower. I was shocked. I couldn’t believe it.”

“We’re still teary-eyed and not quite have our wits about us,” said Stansell’s stepmother Lynne.

U.S. President George W. Bush and French President Nicolas Sarkozy congratulated Colombian President Alvaro Uribe.

Santos renewed the government’s offer to negotiate with the reeling rebel movement, who many believe is nearing the end of its four-decade fight. Battlefield losses and widespread desertions have cut rebel numbers in half to about 9,000 as the United States has poured billions of dollars in military aid into Colombia.

This year, historic leader Manuel Marulanda died of a reported heart attack, and two other top commanders were killed. The rest are hunkered down in remote jungle and mountain hideouts, unable to communicate effectively.

Santos said Colombia had infiltrated the rebels’ seven-man ruling secretariat, but did not elaborate.

“The government reiterates to them that if they want to enter into serious negotiations in good faith, we are offering a dignified peace,” Santos said.

U.S. presidential candidate John McCain said Uribe had told him in advance of the rescue plans while he was campaigning in Colombia. “It’s a very high-risk operation,” he said. “I congratulate President Uribe, the military and the nation of Colombia.”

Betancourt, 46, was abducted in February 2002. The Americans were captured a year after Betancourt when their drug surveillance plane went down in rebel-held jungle.

In the five years since their abduction, their families had received only two “proof of life” videos, the latest in November.

That tape also showed the first images since 2003 of Betancourt. Along with letters and reports from other hostages, they showed a once-vibrant, confident woman slowly succumbing to Hepatitis B, tropical skin diseases and depression. One former hostage said Betancourt was kept chained to a tree after trying to escape. There was no immediate word on Betancourt’s condition.

Former Betancourt aide Clara Rojas, who was kidnapped with her boss and freed in January, called the rescue “an enormous relief” and said she hoped the FARC would “take a rational decision to free the rest of the hostages.”

Discussion Questions:

1. How options does a government have to deal with those who wish to rebel? What are the advantages and drawbacks of those options?

2. Should the Columbians have done more sooner to get these hostages? Why?

3. How does Columbia’s problem with rebels parallel similar problems that America has? How is their problem different?

Obama Supporters Take His Name as Their Own

Interesting… people are using Obama’s middle name “Hussein” as their own on Facebook to show solidarity the bashing of right wing pundits over it.

http://www.nytimes.com/2008/06/29/us/politics/29hussein.html?bl=&_r=1&ei=5087&en=442dcec2d2792561&ex=1214971200&adxnnl=1&oref=slogin&adxnnlx=1214800945-rfMdQ5S2aoVsc2Wucs+K9w

Emily Nordling has never met a Muslim, at least not to her knowledge. But this spring, Ms. Nordling, a 19-year-old student from Fort Thomas, Ky., gave herself a new middle name on Facebook.com, mimicking her boyfriend and shocking her father.

“Emily Hussein Nordling,” her entry now reads.

With her decision, she joined a growing band of supporters of Senator Barack Obama, the presumptive Democratic presidential nominee, who are expressing solidarity with him by informally adopting his middle name.

The result is a group of unlikely-sounding Husseins: Jewish and Catholic, Hispanic and Asian and Italian-American, from Jaime Hussein Alvarez of Washington, D.C., to Kelly Hussein Crowley of Norman, Okla., to Sarah Beth Hussein Frumkin of Chicago.

Jeff Strabone of Brooklyn now signs credit card receipts with his newly assumed middle name, while Dan O’Maley of Washington, D.C., jiggered his e-mail account so his name would appear as “D. Hussein O’Maley.” Alex Enderle made the switch online along with several other Obama volunteers from Columbus, Ohio, and now friends greet him that way in person, too.

Mr. Obama is a Christian, not a Muslim. Hussein is a family name inherited from a Kenyan father he barely knew, who was born a Muslim and died an atheist. But the name has become a political liability. Some critics on cable television talk shows dwell on it, while others, on blogs or in e-mail messages, use it to falsely assert that Mr. Obama is a Muslim or, more fantastically, a terrorist.

“I am sick of Republicans pronouncing Barack Obama’s name like it was some sort of cuss word,” Mr. Strabone wrote in a manifesto titled “We Are All Hussein” that he posted on his own blog and on dailykos.com.

So like the residents of Billings, Mont., who reacted to a series of anti-Semitic incidents in 1993 with a townwide display of menorahs in their front windows, these supporters are brandishing the name themselves.

“My name is such a vanilla, white-girl American name,” said Ashley Holmes of Indianapolis, who changed her name online “to show how little meaning ‘Hussein’ really has.”

The movement is hardly a mass one, and it has taken place mostly online, the digital equivalent of wearing a button with a clever, attention-getting message. A search revealed hundreds of participants across the country, along with a YouTube video and bumper stickers promoting the idea. Legally changing names is too much hassle, participants say, so they use “Hussein” on Facebook and in blog posts and comments on sites like nytimes.com, dailykos.com and mybarackobama.com, the campaign’s networking site.

New Husseins began to crop up online as far back as last fall. But more joined up in February after a conservative radio host, Bill Cunningham, used Mr. Obama’s middle name three times and disparaged him while introducing Senator John McCain, the presumptive Republican nominee, at a campaign rally. (Mr. McCain repudiated Mr. Cunningham’s comments).

The practice has been proliferating ever since. In interviews, several Obama supporters said they dreamed up the idea on their own, with no input from the campaign and little knowledge that others shared their thought.

Some said they were inspired by movies, including “Spartacus,” the 1960 epic about a Roman slave whose peers protect him by calling out “I am Spartacus!” to Roman soldiers, and “In and Out,” a 1997 comedy about a gay high school teacher whose students protest his firing by proclaiming that they are all gay as well.

“It’s one of those things that just takes off, because everybody got it right away,” said Stephanie Miller, a left-leaning comedian who blurted out the idea one day during a broadcast of her syndicated radio talk show and repeated it on CNN.

Ms. Miller and her fellow new Husseins are embracing the traditionally Muslim name even as the Obama campaign shies away from Muslim associations. Campaign workers ushered two women in head scarves out of a camera’s range at a rally this month in Detroit. (The campaign has apologized.) Aides canceled a December appearance on behalf of Mr. Obama by Representative Keith Ellison, a Minnesota Democrat and the first Muslim congressman.

Mr. Obama may be more enthusiastic, judging from his response at a Chicago fund-raiser two weeks ago. When he saw that Richard Fizdale, a longtime contributor, wore “Hussein” on his name tag, Mr. Obama broke into a huge grin, Mr. Fizdale said.

“The theory was, we’re all Hussein,” Mr. Obama said to the crowd later, explaining Mr. Fizdale’s gesture.

Some Obama supporters say they were moved to action because of what their own friends, neighbors and relatives were saying about their candidate. Mark Elrod, a political science professor at Harding University in Searcy, Ark., is organizing students and friends to declare their Husseinhood on Facebook on Aug. 4, Mr. Obama’s birthday.

Ms. Nordling changed her name after volunteering for Mr. Obama before the Kentucky primary.

“People would not listen to what you were saying on the phone or on their doorstep because they thought he was Muslim,” she said.

Ms. Nordling’s uncle liked the idea so much that he joined the same Facebook group that she had. But when her father saw her new online moniker, he was incredulous.

“He actually thought I was going to convert to Islam,” Ms. Nordling said.

Discussion Questions

1) While it is certainly juvenile to criticize Obama over his middle name, is it right to investigate his background, including his father and his schooling in the primarily Islamic nation of Indonesia? Why or why not?

2) Will people take political activism on Facebook seriously? Why or why not?

3) Would you change your Facebook name or significantly alter your profile to show solidarity with a cause or as a form of protest? Why or why not? What causes might force you to do this?

The People verses the Prosecutor

In Government class, when we say “the people,” we usually are referring to the prosecutor, who represents the people. But an obscure Kansas Law, rarely invoked, allows a relatively small group of people to act as their own prosecutor.

June 17, 2008

Grand Juries Become Latest Abortion Battlefield

By MONICA DAVEY

WICHITA, Kan. — Opponents of Dr. George Tiller and his clinic here, one of the nation’s few providers of late-term abortions, have tried many ways to stop him over three decades. They have held protests, lobbied lawmakers and complained persistently to state regulators and prosecutors. There have also been several acts of violence, including one in which Dr. Tiller was shot in both arms.

Now his opponents are using a legal tactic that some find startling and others consider inspired. They have turned to an unusual state statute, adopted in 1887, that allows ordinary citizens who gather enough signatures on a petition to demand that a grand jury investigate an alleged crime, a decision usually left to a prosecutor.

Inside a courthouse along Main Street here, 15 grand jurors have been meeting for months, convened under the statute by ordinary Sedgwick County residents to investigate whether Dr. Tiller’s clinic has illegally performed second- and third-trimester abortions. Their deliberations are scheduled to end next month.

Kansas is one of a few states that have laws that allow residents to force a grand jury investigation. Over all, the practice is seldom used, but grand juries by petition in Kansas have recently taken on new life, new targets and a host of new critics who say a law once meant to check official corruption is being twisted into a political weapon.

“This is an abuse of the grand jury system,” said Senator John L. Vratil, a Republican who serves on the Senate Judiciary Committee in Topeka. “It’s being used in a political way to further a political cause, and that was never the purpose of the grand jury system in Kansas.”

The grand jury meeting here is at least the 10th ordered by petition in the state in recent years: two investigated abortion providers, including Dr. Tiller, and the rest investigated misdemeanor obscenity violations by stores selling explicit videos, magazines and other items. Only one has led to a conviction.

Kansas lawmakers adopted the provision allowing grand juries by petition in the late 19th century when state politicians were fighting over which towns would be named county seats and the lucrative railroad industry was blossoming. The law was seen as a check against abuse by those in power.

In those early years, it required the signatures of 200 taxpayers to call a grand jury; now it requires the signatures of 2 percent of a county’s turnout in the most recent governor’s election, plus 100 more signatures.

“This is a measure for the people to get some justice if law enforcement doesn’t do its job, and that’s exactly what we’re doing,” said David Gittrich, of Kansans for Life, which was involved in both grand jury petitions involving Dr. Tiller and helped collect nearly 7,000 verified signatures, more than double the required number, for the current investigation.

Dr. Tiller, 66, who has performed abortions since the 1970s, has long been a focus of controversy in Wichita, where the bland building that houses his clinic belies the debate that has centered around it. Abortion opponents blame Dr. Tiller for drawing women from around the country to have abortions. Abortion-rights advocates point to him as a physician who has persisted even as protesters have gone to his home and church.

His lawyer, Lee Thompson, said such critics were “using the grand jury, I believe, as a tool to harass.” Dr. Tiller declined to be interviewed.

Several legal experts wonder where this will all end — how many more grand juries will be created by petition in response to social or political issues, and at what price to the taxpayers?

“This is an important check, and to the extent that it’s used for political purposes as part of some sort of broader agenda, it threatens the viability of the check itself,” said Douglas E. Beloof, a professor at Lewis & Clark Law School in Portland, Ore.

In recent times, the highest-profile grand jury by petition was called under a similar law in Oklahoma, another of the six states where legal experts say citizens have used the petition process to seat a grand jury. The petition’s authors suspected officials had overlooked a larger plot in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. After meeting for 18 months, at a cost of about $500,000, that grand jury found no conspiracy plot.

About five years ago, the Kansas law was dusted off by pornography opponents who sought to shut down a store selling explicit magazines, videos and toys. Soon, petitions about similar businesses in other parts of the state took off. Of seven grand juries, six brought misdemeanor charges related to obscenity, said Phillip Cosby, an anti-obscenity activist who has led the petition efforts; only one, from Ellsworth County, led to a conviction, he said. Others have been delayed, though Mr. Cosby said the efforts had nonetheless had a powerful effect. Some stores have simply closed.

Soon, abortion opponents began using the same method. Two grand juries have completed investigations of abortion clinics. Neither has returned an indictment. Officials say they are not yet certain about the court costs of the various investigations.

The grand jury investigation in Wichita, which began in January and must complete its work by next month, is the second to involve Dr. Tiller’s clinic, Women’s Health Care Services. In 2006, abortion opponents collected petitions to investigate the death of a 19-year-old woman with Down syndrome who had undergone an abortion there.

When that grand jury failed to return an indictment, abortion opponents last year drew up another petition calling for a new grand jury to look at all late-term abortions at Dr. Tiller’s clinic since July 2003.

Separate from the grand jury investigation, Dr. Tiller is facing 19 misdemeanor counts charging that he received second opinions on abortions from a doctor who was not independent of him, as required by state law. Dr. Tiller’s lawyer, Mr. Thompson, denies the charges.

Under Kansas law, abortions at or after 22 weeks of pregnancy are limited to circumstances where a fetus would not be viable or a pregnant woman would otherwise face “substantial and irreversible impairment of a major bodily function” — words whose interpretation are at the center of the legal debate here. (In 2007, 293 such abortions were performed in Kansas, state records show; in 168 of them, doctors said such an impairment made the abortion necessary, according to the records.)

The Wichita grand jury requested the medical records of some of Dr. Tiller’s patients, an issue that sent the case to the Kansas Supreme Court. There, patients objected to their records being revealed and Dr. Tiller’s lawyers contended that citizen-petitioned grand juries were being used as a form of harassment and were a violation of the separation of powers.

Last month, the State Supreme Court allowed the grand jurors to proceed and permitted them to subpoena some records, under the supervision of a district court judge, but seemed to send a caution: The court “should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition and that the targets were not selected and subpoenas issued out of malice or with intent to harass.”

As the grand jury here proceeds, opponents of abortion put up a billboard in town with the words, “Is Tiller above the law?” Advocates for abortion rights say the billboard is aimed at members of the grand jury; those opposed to abortion deny the claim.

The notion of regular citizens, not just professional prosecutors, taking their concerns directly to grand juries is not unknown historically. Centuries ago, people brought private prosecutions to grand juries, and in some states, residents are still entitled to take information straight to grand jurors, without even gathering signatures from their neighbors.

But in Johnson County, outside Kansas City, earlier this year, a grand jury ended its petition-initiated investigation into Planned Parenthood of Kansas and Mid-Missouri with no indictments. It did issue a statement, however, in which members revealed reservations about the grand jury’s very existence.

“It is the feeling of this grand jury that the current statute that addresses the formation of a grand jury be evaluated as to evidence required to call the grand jury,” the statement said. “The grand jury also feels that the statute also be re-evaluated as to the percentage of the population required to convene a grand jury.”

Discussion Questions (Respond to at least one)

1. Should the people have the right to overrule the prosecutor? Why or why not?

2. If this Kansas law were nationwide, how would that change the way the federal legal system works?

3. Is this law more closely associated with direct democracy or representative democracy? Explain.

4. According to this article, how is this law an example of a “check” on government?

5. How is this law an example of the principle of “popular sovereignty”?

American First Amendment vs. the World

America’s First Amendment is unique to most of the rest of the western world. Why does a nation called “conservative” by many have such a progressive first amendment law?

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June 12, 2008

American Exception

Unlike Others, U.S. Defends Freedom to Offend in Speech

By ADAM LIPTAK

VANCOUVER, British Columbia — A couple of years ago, a Canadian magazine published an article arguing that the rise of Islam threatened Western values. The article’s tone was mocking and biting, but it said nothing that conservative magazines and blogs in the United States do not say every day without fear of legal reprisal.

Things are different here. The magazine is on trial.

Two members of the Canadian Islamic Congress say the magazine, Maclean’s, Canada’s leading newsweekly, violated a provincial hate speech law by stirring up hatred against Muslims. They say the magazine should be forbidden from saying similar things, forced to publish a rebuttal and made to compensate Muslims for injuring their “dignity, feelings and self-respect.”

The British Columbia Human Rights Tribunal, which held five days of hearings on those questions here last week, will soon rule on whether Maclean’s violated the law. As spectators lined up for the afternoon session last week, an argument broke out.

“It’s hate speech!” yelled one man.

“It’s free speech!” yelled another.

In the United States, that debate has been settled. Under the First Amendment, newspapers and magazines can say what they like about minorities and religions — even false, provocative or hateful things — without legal consequence.

The Maclean’s article, “The Future Belongs to Islam,” was an excerpt from a book by Mark Steyn called “America Alone” (Regnery, 2006). The title was fitting: The United States, in its treatment of hate speech, as in so many other areas of the law, takes a distinctive legal path.

“In much of the developed world, one uses racial epithets at one’s legal peril, one displays Nazi regalia and the other trappings of ethnic hatred at significant legal risk, and one urges discrimination against religious minorities under threat of fine or imprisonment,” Frederick Schauer, a professor at the John F. Kennedy School of Government at Harvard, wrote in a recent essay called “The Exceptional First Amendment.”

“But in the United States,” Professor Schauer continued, “all such speech remains constitutionally protected.”

Canada, England, France, Germany, the Netherlands, South Africa, Australia and India all have laws or have signed international conventions banning hate speech. Israel and France forbid the sale of Nazi items like swastikas and flags. It is a crime to deny the Holocaust in Canada, Germany and France.

Earlier this month, the actress Brigitte Bardot, an animal rights activist, was fined $23,000 in France for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep.

By contrast, American courts would not stop a planned march by the American Nazi Party in Skokie, Ill., in 1977, though a march would have been deeply distressing to the many Holocaust survivors there.

Six years later, a state court judge in New York dismissed a libel case brought by several Puerto Rican groups against a business executive who had called food stamps “basically a Puerto Rican program.” The First Amendment, Justice Eve M. Preminger wrote, does not allow even false statements about racial or ethnic groups to be suppressed or punished just because they may increase “the general level of prejudice.”

Some prominent legal scholars say the United States should reconsider its position on hate speech.

“It is not clear to me that the Europeans are mistaken,” Jeremy Waldron, a legal philosopher, wrote in The New York Review of Books last month, “when they say that a liberal democracy must take affirmative responsibility for protecting the atmosphere of mutual respect against certain forms of vicious attack.”

Professor Waldron was reviewing “Freedom for the Thought That We Hate: A Biography of the First Amendment” by Anthony Lewis, the former New York Times columnist. Mr. Lewis has been critical of efforts to use the law to limit hate speech.

But even Mr. Lewis, a liberal, wrote in his book that he was inclined to relax some of the most stringent First Amendment protections “in an age when words have inspired acts of mass murder and terrorism.” In particular, he called for a re-examination of the Supreme Court’s insistence that there is only one justification for making incitement a criminal offense: the likelihood of imminent violence.

The imminence requirement sets a high hurdle. Mere advocacy of violence, terrorism or the overthrow of the government is not enough; the words must be meant to and be likely to produce violence or lawlessness right away. A fiery speech urging an angry mob to immediately assault a black man in its midst probably qualifies as incitement under the First Amendment. A magazine article — or any publication — intended to stir up racial hatred surely does not.

Mr. Lewis wrote that there was “genuinely dangerous” speech that did not meet the imminence requirement.

“I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging,” Mr. Lewis wrote. “That is imminence enough.”

Harvey A. Silverglate, a civil liberties lawyer in Cambridge, Mass., disagreed. “When times are tough,” he said, “there seems to be a tendency to say there is too much freedom.”

“Free speech matters because it works,” Mr. Silverglate continued. Scrutiny and debate are more effective ways of combating hate speech than censorship, he said, and all the more so in the post-Sept. 11 era.

“The world didn’t suffer because too many people read ‘Mein Kampf,’ ” Mr. Silverglate said. “Sending Hitler on a speaking tour of the United States would have been quite a good idea.”

Mr. Silverglate seemed to be echoing the words of Justice Oliver Wendell Holmes Jr., whose 1919 dissent in Abrams v. United States eventually formed the basis for modern First Amendment law.

“The best test of truth is the power of the thought to get itself accepted in the competition of the market,” Justice Holmes wrote.

“I think that we should be eternally vigilant,” he added, “against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

The First Amendment is not, of course, absolute. The Supreme Court has said that the government may ban fighting words or threats. Punishments may be enhanced for violent crimes prompted by racial hatred. And private institutions, including universities and employers, are not subject to the First Amendment, which restricts only government activities.

But merely saying hateful things about minorities, even with the intent to cause their members distress and to generate contempt and loathing, is protected by the First Amendment.

In 1969, for instance, the Supreme Court unanimously overturned the conviction of a leader of a Ku Klux Klan group under an Ohio statute that banned the advocacy of terrorism. The Klan leader, Clarence Brandenburg, had urged his followers at a rally to “send the Jews back to Israel,” to “bury” blacks, though he did not call them that, and to consider “revengeance” against politicians and judges who were unsympathetic to whites.

Only Klan members and journalists were present. Because Mr. Brandenburg’s words fell short of calling for immediate violence in a setting where such violence was likely, the Supreme Court ruled that he could not be prosecuted for incitement.

In his opening statement in the Canadian magazine case, a lawyer representing the Muslim plaintiffs aggrieved by the Maclean’s article pleaded with a three-member panel of the tribunal to declare that the article subjected his clients to “hatred and ridicule” and to force the magazine to publish a response.

“You are the only thing between racist, hateful, contemptuous Islamophobic and irresponsible journalism, and law-abiding Canadian citizens,” the lawyer, Faisal Joseph, told the tribunal.

In response, the lawyer for Maclean’s, Roger D. McConchie, all but called the proceeding a sham.

“Innocent intent is not a defense,” Mr. McConchie said in a bitter criticism of the British Columbia law on hate speech. “Nor is truth. Nor is fair comment on true facts. Publication in the public interest and for the public benefit is not a defense. Opinion expressed in good faith is not a defense. Responsible journalism is not a defense.”

Jason Gratl, a lawyer for the British Columbia Civil Liberties Association and the Canadian Association of Journalists, which have intervened in the case in support of the magazine, was measured in his criticism of the law.

“Canadians do not have a cast-iron stomach for offensive speech,” Mr. Gratl said in a telephone interview. “We don’t subscribe to a marketplace of ideas. Americans as a whole are more tough-minded and more prepared for verbal combat.”

Many foreign courts have respectfully considered the American approach — and then rejected it.

A 1990 decision from the Canadian Supreme Court, for instance, upheld the criminal conviction of James Keegstra for “unlawfully promoting hatred against an identifiable group by communicating anti-Semitic statements.” Mr. Keegstra, a teacher, had told his students that Jews were “money loving,” “power hungry” and “treacherous.”

Writing for the majority, Chief Justice Brian Dickson said there was an issue “crucial to the disposition of this appeal: the relationship between Canadian and American approaches to the constitutional protection of free expression, most notably in the realm of hate propaganda.”

Chief Justice Dickson said “there is much to be learned from First Amendment jurisprudence.” But he concluded that “the international commitment to eradicate hate propaganda and, most importantly, the special role given equality and multiculturalism in the Canadian Constitution necessitate a departure from the view, reasonably prevalent in America at present, that the suppression of hate propaganda is incompatible with the guarantee of free expression.”

The United States’ distinctive approach to free speech, legal scholars say, has many causes. It is partly rooted in an individualistic view of the world. Fear of allowing the government to decide what speech is acceptable plays a role. So does history.

“It would be really hard to criticize Israel, Austria, Germany and South Africa, given their histories,” for laws banning hate speech, Professor Schauer said in an interview.

In Canada, however, laws banning hate speech seem to stem from a desire to promote societal harmony. While the Ontario Human Rights Commission dismissed a complaint against Maclean’s, it still condemned the article.

“In Canada, the right to freedom of expression is not absolute, nor should it be,” the commission’s statement said. “By portraying Muslims as all sharing the same negative characteristics, including being a threat to ‘the West,’ this explicit expression of Islamophobia further perpetuates and promotes prejudice toward Muslims and others.”

A separate federal complaint against Maclean’s is pending.

Mr. Steyn, the author of the article, said the Canadian proceedings had illustrated some important distinctions. “The problem with so-called hate speech laws is that they’re not about facts,” he said in a telephone interview. “They’re about feelings.”

“What we’re learning here is really the bedrock difference between the United States and the countries that are in a broad sense its legal cousins,” Mr. Steyn added. “Western governments are becoming increasingly comfortable with the regulation of opinion. The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world.”
Discussion Questions: (Choose at least one to respond on)

1) How is America’s understanding of Freedom of Speech different than other western nations? Why do you think that is?

2) Should “hate speech” be against the law in America? Why or why not?

3) The article alludes to America’s “Hate Crimes” legislation, where punishments for crime are more severe if they are motivated and/or incited by racial, ethic, gender, or sexual bias. Do you think this type of provision goes against the American notion of free speech, or is it a reasonable restriction? Defend your answer.

Federal Spending Priorities

For this article, you will want to focus on the following ideas from class:

1) Federalism: Division of powers and shared role of state and federal government

2) Foreign relations/foreign aid: The US’s role in funding other countries.

War bill helps Iraqis, may ignore Katrina victims

By JOHN MORENO GONZALES, Associated Press WriterSun Jun 8, 12:30 PM ET

A long way from Iraq and the war debate in Washington, Herman Moore sat outside a tent in a downtown New Orleans homeless camp, trying to make sense of a proposal that helps Iraqi war refugees but will likely exclude Hurricane Katrina victims.

“Messed up is not the phrase. I think you know the phrase,” Moore said. “This place has been forgotten, just forgotten.”

The 56-year-old lifelong city resident is referring to Congress’ plan to spend $212 billion to finance the war in Iraq. In the massive spending bill, $350 million is set aside to help Iraqi refugees while just $73 million has been allotted to help shelter physically and mentally disabled Katrina victims — and that money could be cut as early as Tuesday.

Along with funding the war through the first month of the next president’s term, the bill provides Jordan’s military $100 million and Mexico’s armed forces $50 million. In response, lawmakers like Louisiana Sen. Mary Landrieu have attached over $30 billion to the proposal for what they see as domestic priorities.

However, House Speaker Nancy Pelosi must trim the bill or face a threatened veto from President Bush. While the California Democrat supports the housing money for 3,000 rent-aid vouchers, it is part of $2.9 billion in Katrina assistance that may end up being cut.

Landrieu said the housing assistance funds are vital to a city that has seen its homeless population double to an estimated 12,000 since the 2005 disaster.

“I fully support giving our troops the funding they need and am concerned about the plight of Iraqi refugees,” the Democrat wrote in an e-mail to The Associated Press. “But we cannot neglect the most pressing emergency here at home along the Gulf Coast.”

Unfortunately for Landrieu, some fellow Democrats don’t have that appetite for spending. A group of 49 congressional Democrats, known as the Blue Dog Coalition, support cutting the housing vouchers in an effort to tame the national debt. While declining to comment on the prospect of helping Iraqi refugees while overlooking Katrina victims, Blue Dog leader Rep. Allen Boyd wrote in an e-mail that the $9 trillion national debt includes significant amounts financed by foreign banks.

“In this bill and others, the Blue Dogs and I are pushing for our priorities to be paid for, instead of borrowing the money from China that will have to be paid back with interest by our children and grandchildren,” Boyd said.

Those arguments don’t mean much to Patrick Clark, 43, as he stocked his tent with donated food at the homeless camp Friday. He said the government was all too willing to increase the debt with war spending but is turning its back on those most in need of help after Katrina.

“People died. People lost homes, jobs,” said Clark, a former truck driver who has had trouble finding work since the storm. “We should help people right here.”

Katrina flooded 80 percent of New Orleans and killed 1,600 in Louisiana and Mississippi. In its wake, homelessness has become painfully visible.

A 150-person shantytown in front of City Hall where Clark and Moore lived has since moved to a freeway underpass near the Louisiana Superdome.

The residents are a mix of people suffering from mental health problems, drug addiction and physical ailments. In recent weeks, it has thinned out with the warmer temperatures, some people going to shelters and others into gutted and abandoned homes.

Tourists, professional sports teams and former North Carolina Sen. John Edwards have visited the site, at times equating the several blocks of tattered men and women to a refugee camp.

“When the Katrina disaster happened we couldn’t help but notice here was forced displacement in the richest country in the world,” said Joel Charny, vice president for policy for Refugees International, a Washington-based humanitarian advocacy organization.

“You just don’t want to be in a situation where it’s either money for people who are disabled and really hurting in New Orleans, as opposed to money for people who are dislocated because of the war in Iraq,” he said. “Our view, at the risk of sounding naive, is that money would be available for both.”

Advocates have lobbied for the housing vouchers for years. They were cut from the 2006 war supplemental bill under similar political pressures.

“I’m pleading with them not to negotiate with the lives of 3,000 of our most vulnerable citizens,” said Valerie Keller, co-chair of the Louisiana Supportive Housing Coalition. “People have been languishing in New Orleans for two and a half years.”

Discussion Questions: (Choose at least one to comment on)

1. Why do you think that Congress is more concerned with Iraq’s water supply than New Orleans?

2. What does this say about the priority of the federal government’s spending?

3. Do you think that the Federal Government should be responsible for funding both the Iraqi water supply and the New Orleans water supply, or should the local New Orleans gov and the Iraqi gov fund their own expenditures in this area? Defend your answer.