September 18, 2005 Sunday
HEADLINE: Shame On You;
Enough With the Humiliating Punishments, Judges
BYLINE: Jonathan Turley Continue reading “Humiliating Punishments and the Abuse of Judicial Power”
Month: August 2007
October 9, 2005 Sunday
Washington Post: A Faulty Law, a Feud, a Fatality
BODY:
Last month John Frederick Ames, a bankruptcy lawyer from Richmond, was acquitted of the murder of his neighbor, Oliver “Perry” Brooks [Metro, Sept. 17]. It was the latest chapter in a story worthy of William Faulkner that concerns an arcane 1887 law and a state legislature that refused to repeal it.
The dispute that led to Brooks’s death began in 1989, when Ames, who had purchased a 675-acre Caroline County farm from a widow facing bankruptcy, sent his neighbors a registered letter informing them that he was going to build a fence around his property. The letter also said that he was going to charge his neighbors for half the cost of the fence, which amounted to thousands of dollars. Ames said the 1887 law allowed him to bill them for the fence even without their consent.
Ames’s neighbors, who included retirees on fixed incomes, received bills of $6,000 to $45,000. All of them, including Brooks, who was living on $400 a month from Social Security, refused to pay. Ames had billed Brooks $45,000 for his share of the fence. Ames reportedly offered to forget about the $45,000 if Brooks would deed over some of his land, but Brooks refused. The case went through the courts, and in 1991, Ames finally prevailed in the Virginia Supreme Court.
His neighbors then scraped together the money for the fence — all but Brooks, that is, who continued to refuse to pay. Ames subsequently sued his neighbor for $450,000 for fence damage caused by a bull that Brooks owned. The bull repeatedly broke the fence and strayed onto Ames’s cattle farm. Ames called these bull incursions an “intentional disregard” of his rights. Brooks responded with obstinacy and anger.
The bad blood finally boiled over in April 2004, when Brooks’s bull once again strayed onto Ames’s land. Despite court orders barring him from entering Ames’s property, Brooks went to retrieve his livestock. An armed Ames told him to leave the animal. When Brooks brandished a stick he used to herd the bull, Ames shot in the face and then four more times.
Ames said the shooting was in self-defense. But his acquittal by a jury last month on a murder charge on the basis of self-defense isn’t the end of the story. Ames still may get the land that he was seeking from Brooks. He previously sued the Brooks family for $11.3 million in an action that originally cited everything from infliction of emotional distress to terrorism. He recently withdrew that action, but he still has a lien on the Brooks property and an outstanding fence payment that could exceed $150,000 with interest. The Brooks family is suing Ames for wrongful death.
Ames may fit the stereotype of a lawyer who will use any law to his advantage, regardless of the cost to others, but the Virginia General Assembly deserves equal blame for the mess that culminated in the death of a man. It repeatedly failed to repeal the archaic law that allowed the feud to get going in the first place.
When the state Supreme Court ruled in favor of Ames in 1991, it noted that Virginia was out of step with the common-law rule that a landowner’s boundary line is a lawful fence and that a cattle owner is liable for trespass by his animals. Virginia, however, does not impose such liability on livestock owners and allows them to force neighbors to pay toward “fencing out” livestock. Despite the feud and requests for the law to be changed, the legislature did not act. Only after Brooks was dead and Ames was facing a murder charge did it change the law — and then only to exempt landowners without livestock, which would not have protected Brooks.
The common law and most states impose costs on livestock owners for any damage that their animals cause to a neighbor. This sensible “fence-in” approach recognizes that a livestock owner should not be able to impose the cost of his or her enterprise on neighbors.
A fundamental purpose of the law is to reduce conflicts among neighbors by maintaining clear, consistent and fair rules. The Virginia legislature clearly failed in that duty. It may be true that good fences make good neighbors, but the Brooks killing shows that bad laws, like bad fences, make for bad neighbors.
UPDATE: It appears Donald Trump uses the same questionable means to harass home owners.
February 19, 2006 Sunday
HEADLINE: The Buck (Fever) Stops Here;
Bankety Bankety Bankety Bankety Bankety Bankety
When Vice President Cheney bagged a Republican donor during a quail hunt, he became the first U.S. vice president to shoot someone while in office since 1804 when Aaron Burr shot Alexander Hamilton. But from a legal point of view, the precedent that matters here may not be our third vice president, but rather a hapless Maine hunter named Donald Rogerson.
Whereas Burr pulled the trigger in a duel over honor and politics, Rogerson, like Cheney, shot someone while in search of game. Mistaking a 37-year-old housewife for a white-tailed deer, Rogerson shot and killed her. Locals insisted that the victim (who had recently moved from Iowa) was to blame because she was wearing white mittens during deer season. And a Bangor, Maine, jury cleared him of manslaughter.
No one in authority is talking about charging Cheney with a crime. But Cheney and Rogerson share the ignoble distinction of succumbing to what hunters (and lawyers) call “buck fever.” It is a phenomenon as old as hunting, defined by the Random House dictionary as the “nervous excitement of an inexperienced hunter upon the approach of game.” Yet experienced hunters have also been known to cut down neighbors they have mistaken for bucks, ducks and other quarry.
Buck fever is a recognized defense for negligent hunters, particularly youths. When a teenager shot a local businessman dressed in orange during deer season, he was excused from civil liability because of buck fever, despite the absence of any known species of orange-colored deer.
The law governing hunting accidents has long been controversial. This is the one area where citizens routinely shoot and kill other citizens without civil or criminal penalty — or even the loss of a hunting license. Indeed, most cases of accidental shootings are viewed as reasonable mistakes by hunters and often it is the victim who is blamed for failing to give a hunter a wide berth. Even in the few cases where criminal and civil charges are brought against hunters such as Cheney, they are often tried by a jury of their peers: jurors from communities where hunting and hunting accidents are a way of life.
That’s what saved Rogerson from prison. Karen Wood had only been out in her backyard for a minute, leaving her year-old twin girls in her house, when Rogerson shot her in the chest with a .30-06 rifle. Despite a 4X power scope and a distance of only 188 feet, Rogerson insisted that he mistook Wood for a deer he had seen — though a game warden found no tracks or other evidence.
Putting aside the question of how many biped deer Rogerson had previously encountered, the jury seemed to ignore the fact that Rogerson violated state law, which required him to identify a buck with antlers and to avoid shooting within 300 feet of a house. The case exemplifies the unique deference shown to hunters who maim or kill neighbors. When a hunter in Pennsylvania shot and killed a relative, he was cleared because the victim was making “animal-like movements.”
Hunting accidents stand in sharp contrast to other types of lethal negligence. In areas ranging from vehicular accidents to corporate misconduct, individuals routinely face criminal charges for reckless conduct. In hunting, however, gross negligence is often refashioned as mere “excitement.” Indeed, criminal charges can be downgraded when the killing was done in sport. In Illinois, a judge, while standing in front of his garage, was shot through the throat and shoulder and police treated the matter as “an attempted assassination.” A man finally came forward to admit that he shot the judge while firing at a hawk. His most serious charge? Shooting a bird of prey. He was put under supervision and given a $200 fine.
Hundreds of people are shot each year in “mistaken for game” cases. According to the International Hunting Education Association, in 2004, 41 people were killed and 250 wounded in hunting accidents in the United States. (Down from 91 people killed and 835 wounded in 2000). Unlike Harry Whittington, whom Cheney sprayed with as many as 200 shotgun pellets, the victims are often not even fellow hunters. Judy Moilanen was merely walking her dog in Ontonagon, Mich., when she was killed. Debra Kelly of Osseo, Wis., had her eye shot out by her 13-year-old nephew while she stood in front of her house.
Based on the public accounts of last weekend’s shooting, there’d be a good case to be made that Cheney was negligent. A person is negligent per se when he violates a statutory standard of care, such as the requirement to establish a clear line of fire and confirm a defined game. (This puts aside the fact that Cheney was hunting without a proper state stamp.)
Cheney’s is a classic case of buck fever. There was nothing particularly confusing or unexpected about an individual rejoining a hunting line, as Whittington reportedly did. Rather, it was likely the euphoria of seeking and shooting game that blinded Cheney to the fact that he was aiming at a 78-year-old attorney rather than a six-ounce bird. Medical studies show that hunters often experience a type of physiological frenzy in the presence of game — or its illusion. When shooting a deer, a male’s heart can reach 118 percent of the maximum heart rate. Given Cheney’s heart condition, hunting would seem a poor recreational choice for the vice president.
Cheney’s case reflects a troubling de facto immunity given to negligent hunters. Because of our tradition of hunting, we view people who make lethal use of a firearm as less culpable than those who make lethal use of objects like cars. Texas probably won’t require that Cheney take safety classes or suspend his license. The local county sheriff’s office has already declared the case closed. For his part, Cheney feels no compulsion to promise that the “buck (fever) stops here” and give up hunting.
At least Whittington knows who shot him. Frequently, the culprits in hunting manslaughter cases are never identified. With the expansion of suburbia, it is increasingly common for people to unwittingly enter a line of fire. In 1992, in Leeds, Ala., 22-month-old Ashley Ramage was shot and killed while simply riding between her parents in their truck.
Even in the Washington area, hunters are permitted to hunt game and fowl. Joan Manley, a federal lawyer, was shocked during a morning walk with her two golden retrievers around Jones Point in Alexandria. Alongside the heavily traveled path that runs next to the Potomac, two hunters sat with loaded shotguns in a boat resting on the shoreline; they were after ducks. Two Alexandria police officers confirmed that the men had a proper license and were expected to avoid joggers and bird watchers.
If they had failed, they could have expected no worse punishment than Cheney has received. As long as we continue to treat buck fever as a defense rather than an offense under civil and criminal laws, it’s best to leave the white mittens i
September 17, 2006 Sunday
Elvis Presley was a pedophile. Queen Victoria, a lesbian. Abraham Lincoln, a gay adulterer. Winston Churchill, a murderous conspirator.
These are all “facts” published in recent years about famous people, and in each case such claims would normally bring charges of libel per se — a legal term signifying defamation so serious that damages are presumed. However, these statements also share one other important element: They were all published after the subjects had died. As a result, the publishers are protected by the longstanding rule that you cannot defame the dead (which, in practical terms, means you can). Once Elvis has left the living, you can say anything you want about him. No matter how malicious, untrue or vile.
Indeed, while most people are raised not to speak ill of the dead, the law fully supports those who do. Under the common-law rules governing defamation, a reputation is as perishable as the person who earned it. It is a rule first expressed in the Latin doctrine actio personalis moritur cum persona (“a personal right of action dies with the person”). The English jurist Sir James Stephen put it more simply in 1887, “The dead have no rights and can suffer no wrongs.” In other words, you’re fair game as soon as you die — even if writers say viciously untrue things about you and your life.
The question of whether the dead can be defamed came up recently in a most unlikely way: The family of John Dillinger sued over a depiction of the famous bank robber at the John Dillinger Museum in Hammond, Ind. The museum describes Dillinger as a cop killer, but his relatives note (correctly) that Dillinger was only charged with killing a police officer during his robbery of the First National Bank and Trust in East Chicago, Ind., on Jan. 15, 1934. He died before standing trial.
Disputes such as that over Dillinger — his family, unable to sue for defamation, had to rely instead on a state law that protects public figures from the commercial use of their images — serve mostly to remind us of the grossly unfair and unnecessary rule that allows people to savage the reputations of the dead.
Dillinger’s is only the latest, and far from the greatest, of such post-mortem injuries. Filmmakers and writers in past years have reinvented figures as varied as turn-of-the-century populist William Jennings Bryan, mid-century heartthrob Gary Cooper and President Richard M. Nixon to better fit a storyline — putting out false images that often become “fact” in the popular imagination. Without legal protection, such figures are subject to all matter of creative revisionism, and their families must live with whatever name and reputation they have left once the scriptwriters and biographers are done.
Through the years, many states have considered changing this rule, but have not acted. In New York, the issue came to a head in 1987, when Tawana Brawley, a black teenager, falsely accused a prosecutor, a New York police officer and a state trooper of a racist attack and rape. With people such as Al Sharpton calling the accused men racists and rapists, their reputations were utterly destroyed. The innocent police officer, Harry Crist Jr., was implicated after committing suicide. When a grand jury rejected Brawley’s claims, it took the highly unusual step of recommending that the state pass a law protecting the dead from such knowingly false statements. New York never did.
Allowing some protection for the deceased would not end historical critiques and articles. Many countries protect the reputations of the dead but have not seen a flood of defamation cases in court.
Without such protections, the dead are readily converted into madmen or murderers. Consider the character assassination of First Officer William McMaster Murdoch in the 1997 movie “Titanic.” The movie portrays Murdoch as a nut who shoots a passenger and then himself. However, not only was no one known to have been shot that night, but survivors identified Murdoch as one of the great heroes of the tragedy — giving his lifejacket to a passenger and then remaining on board to drown. (After historians and relatives objected, the studio sent a $5,000 check to Murdoch’s town of Dalbeattie, Scotland, for a scholarship fund.)
The family of the former heavyweight boxing champion Max Baer has a similarly legitimate complaint against director Ron Howard and the makers of the 2005 blockbuster movie “Cinderella Man.” It demonized Baer as the killer of two men in the boxing ring (he killed one man) and claimed he committed such notorious acts as bragging to opponent Jim Braddock’s wife, Mae, that he would kill her husband and then sleep with her.
There was no such outrageous encounter with Mae Braddock, and many have insisted that rather than boasting about killing Frankie Campbell as portrayed in the movie, Baer was haunted for the rest of his life by the death. Baer’s son, Max Baer Jr. (who played Jethro on “The Beverly Hillbillies”) told me that his father had nightmares about it and that he raised considerable money for Campbell’s family. Jeremy Schaap, who wrote the book “Cinderella Man,” told me that Baer went into an emotional “tailspin” after killing Campbell and lost a couple of fights because he refused to finish off opponents out of fear of another fatality. As for the scene with Mae Braddock, Schaap says adamantly, “It is totally made up.” (Baer, who was one-quarter Jewish, was probably best known for fighting with a Star of David on his shorts to protest rising anti-Semitism — a particular slap at Adolf Hitler when Baer defeated Germany’s Max Schmeling in 1933.)
If there were any threat of a defamation lawsuit, the studio lawyers would never have allowed such false portrayals. Indeed, ABC recently edited out material from its docudrama “The Path to 9/11” after attorneys for Clinton administration officials objected to inaccurate portrayals, including fabricated scenes. The problem was not that ABC falsely portrayed former national security adviser Samuel R. “Sandy” Berger as hanging up on CIA agents who were poised to kill Osama bin Laden. The problem was that Berger is still alive. (The scene was dropped.)
But Murdoch and Baer were long dead, so their reputations rested entirely on the self-imposed decency of the writers and directors — and in Hollywood, that means they were cinematic chum.
Publishers are often no better. Books purporting to tell all are often held until after the subject dies — leaving the family without legal recourse. Thus, the widow and children of Gary Cooper could only complain about the book “Cary Grant: The Lonely Heart,” in which authors Charles Higham and Roy Moseley claimed that Cooper was a Nazi sympathizer who “in 1938 would go to Berlin and be entertained by Hitler” — suggesting that Cooper partied with a genocidal killer. There is no evidence of any such meeting, and Cooper’s family insists that he neither met Hitler nor harbored any Nazi sympathies. Errol Flynn’s relatives sued Higham over his claim that Flynn was a Nazi spy. They lost under the common-law rule.
It would be relatively simple to draft a law to add protections for writers and publishers. States could extend the high standard for defamation of public figures to any deceased person — limiting actions to the most egregious violations in which the writer knowingly engaged in a falsehood or showed reckless disregard for the truth. The law could also limit any recovery to a declaratory judgment that corrects the public record and injunctive relief with no monetary damages.
There is an obvious precedent in the protections that most states offer for newspapers that print retractions — laws that could be extended to cases involving the deceased. For example, the New York Times reported in a 2003 obituary that the famous Harlem photographer Marvin Smith had his testicles removed after his twin brother, Morgan, died of testicular cancer in 1993. It was untrue and the Times voluntarily printed a correction.
None of this means that Hollywood should suddenly become the History Channel. The Hollywood view of history has always been more Cecil B. DeMille than Barbara Tuchman. Even a much-acclaimed movie such as “Inherit the Wind” invented scenes and so mutated the character based on William Jennings Bryan that many Americans wrongly believe that he was a bumbling, prejudiced clown. Bryan never testified that he knew the precise day and time that Earth was created — nor did he collapse in a delusional fit in court after the famous evolution verdict.
Yet in most cases, such revisionism involves distorting historical events rather than destroying historical figures. There was no reputation lost when Mel Gibson inaccurately portrayed the Scottish warrior William Wallace fighting to avenge the death of his wife at the hands of the English in “Braveheart.” (The only known account states that Wallace was pushed over the edge after a dispute with English soldiers over fish.) The wildly inaccurate movie, however, crossed the line of decency by suggesting that Princess Isabelle, based on Isabella of France, was an adulterer and that her son, Edward III, may have been fathered by Wallace. The real princess was 9 when Wallace died, she never met him and she bore Edward III seven years after Wallace died.
Just the mention of Oliver Stone pushes most historians into an open rant over films such as “JFK” and “Nixon.” Stone has insisted that he wasn’t doing anything that Shakespeare didn’t do. Yet it seems unlikely that the Bard would have falsely portrayed Pat Nixon demanding a divorce or misrepresenting President Nixon as a stumbling drunk who led a CIA operation to try to kill Cuban dictator Fidel Castro.
After all, it is Shakespeare’s Iago in “Othello” who observes that:
“Who steals my purse steals trash; ’tis something, nothing; . . .
But he that filches from me my good name robs me of that which enriches him
And makes me poor indeed.”
We are all made poorer when good people are trashed after they can no longer defend themselves. With the end of the debate over the permanent repeal of the death tax, perhaps it is time to protect more than just the assets of the deceased. Perhaps it is time to give the dead their due.
June 7, 2007 Thursday
SECTION: GUEST OBSERVER
LENGTH: 1188 words
HEADLINE: Jefferson Deserves Presumption Of Innocence
BYLINE: Jonathan Turley
BODY:
The 16-count indictment of Rep. William Jefferson (D-La.) this week has produced a spasm of legislative proposals and speeches calling for his expulsion from the House. Frankly, as a longtime critic of Congressional ethics rules, I never thought I would be arguing against an effort to purge or punish an unethical member. However, expelling Jefferson would violate core constitutional principles and likely trigger an intense legal fight. Even Members of Congress deserve a presumption of innocence and their “jury of peers” must remain fellow citizens, not fellow politicians.
Many of us have remarked on the strength of the evidence against Jefferson, including his famous frozen asset problem of the $90,000 found in his freezer. The 95-page indictment details 11 alleged bribery and fraud conspiracies that stretch across Africa.
Yet the merits of the Jefferson indictment are irrelevant to this debate. Expelling a Member before a conviction puts politicians in the role of a jury – meting out punishment in a politically charged environment. With the exception of the carefully structured impeachment proceedings, the framers did not foresee such a role for Members. It would be a dangerous precedent if a majority could declare a colleague presumptively guilty and toss him or her from Congress.
Expulsion before trial also is grossly unfair for a Member who is forced to defend his name in simultaneous proceedings before the courts and Congress. Putting aside the heavy financial burden, Congressional hearings could compromise privileged information or force a Member to waive constitutional rights to make a compelling case against expulsion.
Congress has long recognized those dangers and waited for the judicial system to reach its own conclusions. For that reason, the House waited until 2002 to expel then-Rep. James Traficant (Ohio), who was convicted on corruption charges. The only prior expulsions concerned two Members who were expelled at the beginning of the Civil War in 1861 as traitors.
Ironically, some of the loudest calls are now coming from Republicans who fought efforts of expulsion or punishment in the previous Congress after the indictments of former Majority Leader Tom DeLay (R-Texas) and former Rep. Bob Ney (R-Ohio). Yet, they are not alone. Many embarrassed Democrats supported stripping Jefferson of his powerful committee positions before his indictment and now support an expedited process that could lead to expulsion.
History has shown that public assumptions of guilt often fall short in an actual court of law. Various Members have been unsuccessfully investigated or even prosecuted. Rep. Alcee Hastings (D-Fla.) was acquitted of charges of corruption as a federal judge. While some denounced that verdict, Hastings has now served in the House for 15 years and is viewed by many as someone who has served with distinction.
The Hastings case is a useful point of comparison. Congress waited to impeach Hastings until after his trial. It did impeach despite his acquittal. However, there is a great difference between removing a judge and removing a Representative. Under Article III, federal judges “hold their Offices during good Behaviour.” While the Hastings impeachment was controversial because of his acquittal, it generally was accepted that Congress could impeach him under this authority.
Conversely, it would have been shocking for Congress to try to bar Hastings from service in the legislative branch based on the same evidence.
To expel a Member is to negate the votes of citizens who have a right to select their own representative, regardless of the views of other politicians. In Jefferson’s case, his constituents returned him to office after the details of the investigation were made public. Despite national calls for his ouster, he won 57 percent of the vote in his re-election in November.
The framers were adamant in restricting the authority of Congress to engage in selective pruning of its ranks. During the Constitutional Convention, the framers made reference to a contemporary controversy over the expulsion of John Wilkes from Parliament. Wilkes had publicly attacked the peace treaty with France and, in doing so, earned the ire of Crown and Parliament. After he was convicted and jailed for sedition, Parliament moved to declare him ineligible for service in the legislature. He served anyway, and eventually Parliament rescinded the legislative effort to disqualify him.
The framers feared that, unless Congress was prevented from manipulating its membership, history would repeat itself. Citing the Wilkes case as “worthy of our attention,” James Madison warned that if Congress could engage in such manipulation it would “subvert the Constitution.”
Likewise, Alexander Hamilton noted that “[t]he qualifications of the persons who may choose or be chosen … are defined and fixed in the Constitution, and are unalterable by the legislature.”
This history has helped courts understand the meaning of the Qualifications Clause of Article I, Section 2, which references state laws as setting qualifications for Members. Despite this language and the authority of Congress to punish its own Members, the Supreme Court has stressed that neither the states nor Congress can manipulate qualifications to exclude politicians. As the court noted in U.S. Term Limits v. Thornton, the framers feared that, if the membership of Congress could be manipulated, Congress could become “a self perpetuating body to the detriment of the new Republic.”
At least Wilkes had the benefit of a trial and had served time for his alleged crime. Expelling a Member before conviction would allow such manipulation by majority vote based on popular sentiment or political convenience – an obvious danger when our Congress is divided so closely between the parties. These dangers are magnified in a Congress that is now claiming the unprecedented right to create new voting Members. The House recently passed legislation that would, for the first time in history, create a new type of voting Member in the House – giving the District of Columbia a voting representative despite the fact that it is not a state. With the expulsion effort, Congress would not only be asserting the right to create new voting Members for federal enclaves but also the right to expel other Members suspected of crimes.
Politics ultimately may trump principle on this question. In a Congress under intense public criticism for its failure to pass meaningful ethics reforms, Jefferson has become a useful object lesson for Members to demonstrate their commitment to good government. Suddenly, the House looks like a Claude Rains convention with 435 Members practicing their “shocked, shocked” sound bites.
Jefferson recently resigned his only remaining committee position on the Small Business panel. He has been marginalized and vilified – for good reason. However, the House would do far greater damage to its institution if it yields to the temptation to pronounce guilt before a colleague has had his day in court.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
June 7, 2007 Thursday
SECTION: GUEST OBSERVER
LENGTH: 1188 words
HEADLINE: Jefferson Deserves Presumption Of Innocence
BYLINE: Jonathan Turley
BODY:
The 16-count indictment of Rep. William Jefferson (D-La.) this week has produced a spasm of legislative proposals and speeches calling for his expulsion from the House. Frankly, as a longtime critic of Congressional ethics rules, I never thought I would be arguing against an effort to purge or punish an unethical member. However, expelling Jefferson would violate core constitutional principles and likely trigger an intense legal fight. Even Members of Congress deserve a presumption of innocence and their “jury of peers” must remain fellow citizens, not fellow politicians.
Many of us have remarked on the strength of the evidence against Jefferson, including his famous frozen asset problem of the $90,000 found in his freezer. The 95-page indictment details 11 alleged bribery and fraud conspiracies that stretch across Africa.
Yet the merits of the Jefferson indictment are irrelevant to this debate. Expelling a Member before a conviction puts politicians in the role of a jury – meting out punishment in a politically charged environment. With the exception of the carefully structured impeachment proceedings, the framers did not foresee such a role for Members. It would be a dangerous precedent if a majority could declare a colleague presumptively guilty and toss him or her from Congress.
Expulsion before trial also is grossly unfair for a Member who is forced to defend his name in simultaneous proceedings before the courts and Congress. Putting aside the heavy financial burden, Congressional hearings could compromise privileged information or force a Member to waive constitutional rights to make a compelling case against expulsion.
Congress has long recognized those dangers and waited for the judicial system to reach its own conclusions. For that reason, the House waited until 2002 to expel then-Rep. James Traficant (Ohio), who was convicted on corruption charges. The only prior expulsions concerned two Members who were expelled at the beginning of the Civil War in 1861 as traitors.
Ironically, some of the loudest calls are now coming from Republicans who fought efforts of expulsion or punishment in the previous Congress after the indictments of former Majority Leader Tom DeLay (R-Texas) and former Rep. Bob Ney (R-Ohio). Yet, they are not alone. Many embarrassed Democrats supported stripping Jefferson of his powerful committee positions before his indictment and now support an expedited process that could lead to expulsion.
History has shown that public assumptions of guilt often fall short in an actual court of law. Various Members have been unsuccessfully investigated or even prosecuted. Rep. Alcee Hastings (D-Fla.) was acquitted of charges of corruption as a federal judge. While some denounced that verdict, Hastings has now served in the House for 15 years and is viewed by many as someone who has served with distinction.
The Hastings case is a useful point of comparison. Congress waited to impeach Hastings until after his trial. It did impeach despite his acquittal. However, there is a great difference between removing a judge and removing a Representative. Under Article III, federal judges “hold their Offices during good Behaviour.” While the Hastings impeachment was controversial because of his acquittal, it generally was accepted that Congress could impeach him under this authority.
Conversely, it would have been shocking for Congress to try to bar Hastings from service in the legislative branch based on the same evidence.
To expel a Member is to negate the votes of citizens who have a right to select their own representative, regardless of the views of other politicians. In Jefferson’s case, his constituents returned him to office after the details of the investigation were made public. Despite national calls for his ouster, he won 57 percent of the vote in his re-election in November.
The framers were adamant in restricting the authority of Congress to engage in selective pruning of its ranks. During the Constitutional Convention, the framers made reference to a contemporary controversy over the expulsion of John Wilkes from Parliament. Wilkes had publicly attacked the peace treaty with France and, in doing so, earned the ire of Crown and Parliament. After he was convicted and jailed for sedition, Parliament moved to declare him ineligible for service in the legislature. He served anyway, and eventually Parliament rescinded the legislative effort to disqualify him.
The framers feared that, unless Congress was prevented from manipulating its membership, history would repeat itself. Citing the Wilkes case as “worthy of our attention,” James Madison warned that if Congress could engage in such manipulation it would “subvert the Constitution.”
Likewise, Alexander Hamilton noted that “[t]he qualifications of the persons who may choose or be chosen … are defined and fixed in the Constitution, and are unalterable by the legislature.”
This history has helped courts understand the meaning of the Qualifications Clause of Article I, Section 2, which references state laws as setting qualifications for Members. Despite this language and the authority of Congress to punish its own Members, the Supreme Court has stressed that neither the states nor Congress can manipulate qualifications to exclude politicians. As the court noted in U.S. Term Limits v. Thornton, the framers feared that, if the membership of Congress could be manipulated, Congress could become “a self perpetuating body to the detriment of the new Republic.”
At least Wilkes had the benefit of a trial and had served time for his alleged crime. Expelling a Member before conviction would allow such manipulation by majority vote based on popular sentiment or political convenience – an obvious danger when our Congress is divided so closely between the parties. These dangers are magnified in a Congress that is now claiming the unprecedented right to create new voting Members. The House recently passed legislation that would, for the first time in history, create a new type of voting Member in the House – giving the District of Columbia a voting representative despite the fact that it is not a state. With the expulsion effort, Congress would not only be asserting the right to create new voting Members for federal enclaves but also the right to expel other Members suspected of crimes.
Politics ultimately may trump principle on this question. In a Congress under intense public criticism for its failure to pass meaningful ethics reforms, Jefferson has become a useful object lesson for Members to demonstrate their commitment to good government. Suddenly, the House looks like a Claude Rains convention with 435 Members practicing their “shocked, shocked” sound bites.
Jefferson recently resigned his only remaining committee position on the Small Business panel. He has been marginalized and vilified – for good reason. However, the House would do far greater damage to its institution if it yields to the temptation to pronounce guilt before a colleague has had his day in court.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
February 25, 2007 Sunday
HEADLINE: My Boys Like Shootouts. What’s Wrong With That?
As the father of four kids younger than 9, I confess to being an overly obsessive and doting parent. I secretly follow my 8-year-old son, Benjamin, when he goes out on his bike, to make sure that he doesn’t ride in the middle of the street. I hover inches over my 18-month-old daughter, Madie, at the playground to make sure that she doesn’t eat sand. I am the very model of the risk-averse parent. Yet for some parents in my neighborhood, my kids and I are the risk to be avoided, even if it means removing their children when we show up at the park. The reason: toy guns.
I first noticed the “shunning” at the most unlikely of events. Each year on Labor Day, my Alexandria community has a “Wheel Day” parade in which hundreds of kids convert their bikes, scooters and wagons into different fantasy vehicles. Last year, we turned our red wagon into a replica Conestoga wagon with real sewn canvas over wooden ribs, wooden water barrels, quarter horse — and, yes, plastic rifles. It was a big hit and the kids won first prize for their age group. The celebration, however, was short lived. As soon as one mother spotted the toy rifles inside the wagon, she pulled her screaming children out of the event, announcing that she would not “expose them” to guns.
I must confess to feeling a mix of deep guilt and even deeper rage at that moment. It was not as though my kids were reenacting the massacre of a Cherokee village; they were simply living out innocent fantasies of the Old West. After some grumbling, my friends and I eventually dismissed the matter as some earth mother gone berserk.
But then it happened again.
My 4-year-old son, Aidan, brought his orange Buzz Lightyear plastic ray gun to “the pit,” as our neighborhood playground is known. As he began pursuing an evildoer — his 6-year-old brother, Jack — around the playground, a mother froze with an expression of utter revulsion. Glaring alternately from Aidan to me, she waited for a few minutes before grabbing her son and proclaiming loudly that he could not play there “if that boy is going to be allowed to play with guns.”
While such “zero-tolerance” parents still seem to be a minority, this is a scene that seems to be repeating itself with increasing regularity. To these parents, my wife and I are “gun-tolerant” and therefore corruptors of children who should be avoided. Not only are such toys viewed as encouraging aggressive behavior and violent attitudes, they are also seen as reinforcing gender stereotypes, with boys playing with guns or swords and girls playing with dolls or cooking sets.
My wife and I are hardly poster parents for the National Rifle Association. We are social liberals who fret over every detail and danger of child rearing. We do not let our kids watch violent TV shows and do not tolerate rough play. Like most of our friends, we tried early on to avoid any gender stereotypes in our selection of games and toys. However, our effort to avoid guns and swords and other similar toys became a Sisyphean battle. Once, in a fit of exasperation, my wife gathered up all of the swords that the boys had acquired as gifts and threw them into the trash. When she returned to the house, she found that the boys had commandeered the celery from the refrigerator to finish their epic battle. Forced to choose between balanced diets and balanced play, my wife returned the swords with strict guidelines about where and when pirate fights, ninja attacks and Jedi rescues could occur.
When I began to research this issue, I found a library of academic studies with such engaging titles as “Longitudinal Stability of Personality Traits: A Multitrait-Multimethod-Multioccasion Analysis.” The thrust was that gender differences do exist in the toys and games that boys and girls tend to choose. The anecdotal evidence in my neighborhood (with more than 60 young kids in a four-block radius) was even clearer: Parents of boys reported endless variations on the celery swords. There seems to be something “hard-wired” with the XY chromosome that leads boys to glance at a small moss-covered branch and immediately see an air-cooled, camouflaged, fully automatic 50-caliber Browning rifle with attachable bayonet.
Many parents can relate to Holley and Warren Lutz, who thought that after their daughter Seeley, they could raise her little brother, Carver, in a weapon-free house. Holley realized her error when she gave 10-month-old Carver a Barbie doll and truck one day. The little boy examined both and then proceeded to run Barbie over repeatedly with the truck. By 2, he was bending his sister’s Barbies into L-shapes and using them as guns.
One of my neighbors, Tracy Miller, a child psychologist and mother of three girls and a boy, found that her son instinctively gravitated toward improvised weaponry from an early age, while her girls, who are temperamentally more assertive, never showed the slightest interest. Miller resolved that it was better to allow this type of channeling of aggression, while keeping tabs on how it manifested itself in her son’s games.
Her view is supported by a recent flurry of studies looking at boys and their development. Michael Thompson, a psychologist and coauthor of “Raising Cain: Protecting the Emotional Life of Boys,” writes that parents often overreact when confronted with toy guns and other games: “Play is play. Violence is violence.” The key is making sure that kids distinguish between the two in their play.
Nancy Carlsson-Paige, co-author of the book “Who’s Calling the Shots?: How to Respond Effectively to Children’s Fascination with War Play and War Toys,” sees it differently. These toys are not the product of natural childhood fantasies, she says, but “really manifest the ideas of adults — of marketing people” who push toys that reflect an adult imagination more than a child’s. Yet Carlsson-Paige, who has long studied the effect of violence in the media on the social development of children, says it is true that guns and war games are a way of helping some children process the plethora of violent images on television, in videos, in the news. When I asked her about my neighborhood toy gun issues, she told me: “If parents ‘ban’ gun play, they run the risk of cutting off a valuable vehicle children need for processing the violence [because] kids use their play to make meaning of what they have experienced in life, and in this case, of the violence they have seen.”
For his part, the late child psychologist Bruno Bettelheim, author of “The Good Enough Parent,” said that there is clearly a gender difference in the toys parents give boys and girls to play with, but he thought that rather than taking guns away from boys, parents should pass them out to girls, who would be served “equally well to be able to discharge their anger through symbolic play, as with toy guns.”
While the zero-tolerance debate about guns and other such toys predated the 1990s, it was greatly accelerated after the 1999 Columbine High School shootings as educators rushed to develop formal policies against weapons (fake or real) in schools. This made obvious sense to most parents — these toys do lend themselves to disruptive games and it can be difficult from a distance to distinguish between real and toy weapons. However, nervous school officials soon began to apply these policies as strict liability offenses where even the most minor violation is treated as a cause for arrest, expulsion or special schooling.
Consider:
{bull} In New Jersey, an 8-year-old boy used an L-shaped piece of paper in a game of cops and robbers during recess. School officials called the police, saying the child had threatened “to kill other students” by saying “pow pow” on the playground. He was held for five hours and forced to make two court appearances before charges were dropped. Two 8-year-old boys were charged with making “terrorist threats” after they were found pointing paper guns at classmates. Charges were later dropped.
{bull} In Texas, a 13-year-old girl was suspended and transferred to a school for problem kids after she brought a butter knife to school with her lunch. Her parents had packed the dull knife so that she could cut her apple to make it easier to eat because she wore braces.
{bull} In Arkansas, an 8-year-old boy was punished for pointing a cooked chicken strip at another student and saying “pow, pow, pow.”
{bull} In Georgia, a 5-year-old student was suspended after he brought a plastic gun the size of a quarter to his kindergarten class.
Even drawing a picture is too close for comfort under these zero-tolerance policies. In Florida, two 10-year-olds were arrested after drawing stick figures considered to be threatening, and in Nevada, teachers tried unsuccessfully to expel a boy for drawing a cartoon of the death of his teacher.
While many people are complaining about such harsh actions and lawmakers are beginning to call for more moderate policies, some parents want zero-tolerance policies extended to playgrounds, parties and other venues. That has put many of us who have a more expansive view of what is acceptable childhood play in the unenviable position of either conforming to a policy that we believe to be excessive or continually triggering confrontations with zero-tolerance parents.
Of course, it is a bit troubling to be seen as a local gun merchant supplying the weaponry of gratuitous violence to our playgrounds. However, we do not believe that play guns and swords are ruining our children. Frankly, after three boys, my wife and I have resolved the nature/nurture debate in our house in favor of nature.
Yet on the playground there seems to be a palpable fear among zero-tolerance parents that boys harbor some deep and dark violent gene that, if awakened, is likely to end years later with some sort of Hannibal Lecter situation. Of course, there are at least 100 million men in this country who probably played with toy guns or swords as children and did not grow up to become serial killers.
As one of five kids (with two older brothers), I grew up in a liberal, no-guns household in Chicago in the 1960s. My mother considered it her duty to smash any squirt gun we brought into the house. In looking back, though, I’m sure that her gun-free policy made us all the more obsessed with the toys. My kids, on the other hand, show no such fixation. They rarely play gun games (sword fights are more common) and are more inclined to hunt for valuable rocks on the playground or convert our best linens into makeshift yurts in the living room.
Still, when their best friend recently invited them to his Army-themed birthday party, it didn’t bother us a bit (though some parents did refuse to let their children attend). In fact, I was struck by how, more than combat fighting, the boys tended to act out scenes involving rescuing comrades or defending the wounded. What I saw was not boys experimenting with carnage and slaughter, but modeling notions of courage and sacrifice. They were trying to experience the emotions at the extremes of human conduct: facing and overcoming fear to remain faithful to their fellow soldiers.
Or, as child psychologist Penny Holland put it in her book, “We Don’t Play with Guns Here,” their make-believe games were “part of . . . making sense of the world [imitating] timeless themes of the struggle between good and evil.” This explanation is probably all the more important in a world filled with violent images of war on television and in the news.
Being a weapons-tolerant parent doesn’t mean I’m thrilled by these games. I would prefer that my sons played nation-builder or rocket scientist. However, before they get to such fantasies, they seem to have to work out more basic emotions in more basic ways. So for a few more years at least, the celery will remain in the fridge and the swords on the playground.
Lots of Prosecutors Go Too Far. Most Get Away With It.
By Jonathan Turley
Sunday, June 24, 2007; Page B03
It was an extraordinary scene when Michael B. Nifong, the district attorney in Durham, N.C., took the stand to defend his law license after his failed crusade to convict innocent Duke University lacrosse players of gang rape. He had no more success with his own defense. After being disbarred for “dishonesty, fraud, deceit and misrepresentation,” he was suspended from his job last week and now faces a possible lawsuit in civil court.
What’s most remarkable about the whole scene, though, is how rare it is. Nifong’s misconduct was hardly unusual: Some of the most high-profile cases in history have involved strikingly similar acts of prosecutorial abuse. But instead of being punished, the worst violators are often lionized for their aggressive styles — maybe even rewarded with a cable television show.
Nifong is a classic example of the corrosive effect of high-profile cases on a prosecutor’s judgment and sense of decency. Even before the players were indicted, the district attorney had played to the passions surrounding a black stripper’s allegations that she had been raped by affluent white college boys. Nifong called the Duke players “a bunch of hooligans” and promised that he would not allow “Durham in the mind of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham.”
But he had a problem. The accuser kept changing her story, and there was no evidence of a gang rape. In addition to his prejudicial comments, Nifong was accused of withholding test results showing that DNA found on the woman’s body and underwear came from at least four unknown males — but none of the 46 lacrosse team members.
Nifong isn’t the first prosecutor who, in his words, “got carried away” in the glare of television lights. In 1921, the silent-film star Roscoe “Fatty” Arbuckle was tried for the alleged rape and murder of a 30-year-old showgirl named Virginia Rappe during a party in a hotel suite. The San Francisco district attorney, Matthew Brady, faced a situation almost identical to Nifong’s: His chief witness was less than credible.
Rappe’s friend Maude Delmont dramatically described how Arbuckle had dragged Rappe into the bedroom, gleefully proclaiming, “I’ve waited five years to get you.” She insisted that she spoke with Rappe three days later, just before the young woman died (of peritonitis caused by a ruptured bladder), and related the too perfect account of how Rappe yelled, “I’m hurt, I’m dying. He did it, Maude.” In reality, rather than staying by her dying friend’s bedside, Delmont had run to send a telegram to friends that read: “We have Roscoe Arbuckle in a hole here. Chance to make some money out of him.”
It didn’t matter. Brady was hooked. Like Nifong’s conflicting DNA report, the coroner’s report in the Arbuckle case found “no marks of violence . . . and absolutely no evidence of a criminal assault, no signs that the girl had been attacked in any way.” Just as Nifong insisted that he had clear evidence against the lacrosse players, Brady released a statement (soon after receiving the coroner’s report) saying that the evidence “shows conclusively that either a rape or an attempt to rape was perpetrated.” Notably, when Arbuckle was finally acquitted in a third trial, the jury issued a written apology for the “great injustice . . . done him.”
The Duke case also has some striking resemblances to the trial of the so-called Scottsboro Boys. This case of prosecutorial abuse stemmed from a fight on the evening of March 25, 1931, in which a group of black youths threw a group of white boys off a freight train in northern Alabama. When police pulled the black boys off the train, they found two white girls dressed in men’s clothing also riding the train. The girls claimed that they had been held against their will, beaten and raped by the black youths.
Like Nifong, the Scottsboro prosecutors ignored the conspicuous absence of forensic and medical evidence supporting the rape charges — particularly the lack of bruises or torn clothing. (One girl later admitted that they had made up the story to avoid getting in trouble with the law themselves.) All nine Scottsboro defendants were convicted in one-day trials and sentenced to death, with the exception of a 13-year-old boy who was spared death by one holdout juror. (After the Supreme Court intervened and after multiple trials and pardons, the accused were released years later.)
This abuse occurred because the critical safeguard of prosecutorial discretion — the decision whether to pursue a case — didn’t protect the suspects. Despite what you see on television, the chances of being convicted in a criminal case are extremely high. Grand juries are said to be willing to “indict a ham sandwich,” and it’s not uncommon for prosecution offices to have conviction rates of 90 percent or higher. Some prosecutors grow callous and cavalier about their role. When told that he had secured the death penalty against an innocent man, a Texas prosecutor once reportedly boasted that “any prosecutor can convict a guilty man; it takes a great prosecutor to convict an innocent man.”
History is rife with such “great prosecutors” convicting the innocent to satisfy the public. In the 1913 Leo Frank trial, Atlanta chief prosecutor Hugh Dorsey pursued a Jewish factory owner for the rape and murder of 13-year-old factory worker Mary Phagan. It was a period of intense anti-Semitism, with crowds chanting “Kill the Jew” outside the courtroom. Prosecutors ignored the fact that all the evidence pointed to a janitor, Jim Conley, as the killer. Instead, they repeatedly rewrote Conley’s conflicting statements to help him manufacture a coherent account for trial. Conley was identified years later as the killer by a witness, but it was too late for Frank. He was kidnapped from prison by vigilantes (including many leading lawyers) and hanged near Mary’s grave.
Prosecutors are sworn to protect the rights of the accused as well as the accuser, to refuse to pursue cases that would not serve the interests of justice. Yet in today’s environment, it appears that prosecutors can never be too tough, the way models can never be too skinny.
Consider the career of Nancy Grace. Before becoming a CNN and Court TV anchor, she was a notorious prosecutor in Alabama. In a blistering 2005 federal appeals opinion, Judge William H. Pryor Jr., a conservative former Alabama attorney general, found that Grace had “played fast and loose” with core ethical rules in a 1990 triple-murder case. Like Nifong, Grace was accused of not disclosing critical evidence (the existence of other suspects) as well as knowingly permitting a detective to testify falsely under oath. The Georgia Supreme Court also reprimanded her for withholding evidence and for making improper statements in a 1997 arson and murder case. The court overturned the conviction in that case and found that Grace’s behavior “demonstrated her disregard of the notions of due process and fairness and was inexcusable.” She faced similar claims in other cases.
You might have expected Grace to suffer the same fate as Nifong. Instead, she has her own show on CNN, and the network celebrates her as “one of television’s most respected legal analysts.” On TV, she displays the same style she had in the courtroom. (In the Duke case, her presumed-guilty approach was evident early on, when she declared: “I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape.”) The Grace effect is not lost on aspiring young prosecutors who struggle to outdo one another as camera-ready, take-no-prisoners avengers of justice. Grace’s controversial career also shows how prosecutors can routinely push the envelope without fear of any professional consequences. Often this does not mean violating an ethics rule, but using legally valid charges toward unjust ends.
Take the case of Genarlow Wilson. An honors student and gifted athlete, he was preparing for college in 2005 when he was charged in Georgia with aggravated child molestation for having consensual oral sex with a 15-year-old girl.
Though Wilson was only 17, Douglas County District Attorney David McDade and Assistant D.A. Eddie Barker secured a 10-year sentence for an act committed by thousands of teenagers every year. It’s not a crime in most states, and Georgia recently reduced it to a misdemeanor. But the prosecutors are now fighting a judge’s efforts to release Wilson. They can’t be charged on ethical grounds, but they’ve used the criminal justice system to brutalize a young man who should have received a stern parental lecture, not a 10-year prison term.
Nifong’s disbarment may deter some prosecutorial abuse, but until less visible cases are subjected to more scrutiny, it may prove to be an isolated event — driven by the same publicity that led to the abuse in the first place. If the case hadn’t been so high-profile, it’s doubtful that Nifong would have been charged, let alone disbarred, for his misconduct. The Duke case should teach us that a truly fair criminal justice system must strive to protect the rights of the accused as vigorously as it does those of the accuser.
Published March 2007
Texas Rep. Wayne Smith is tired of hearing about parents missing meetings with their children’s teachers. His proposed solution is simple: Prosecute such parents as criminals. In Louisiana, state Sen. Derrick Shepherd is tired of seeing teenagers wearing popular low-rider pants that show their undergarments — so he would like to criminally charge future teenagers who are caught “riding low.”
Across the USA, legislators are criminalizing everything from spitting on a school bus to speaking on a cellphone while driving. Criminalizing bad behavior has become the rage among politicians, who view such action as a type of legislative exclamation point demonstrating the seriousness of their cause. As a result, new crimes are proliferating at an alarming rate, and we risk becoming a nation of criminals where carelessness or even rudeness is enough to secure a criminal record.
There was a time when having a criminal record meant something. Indeed, it was the social stigma or shame of such charges that deterred many people from “a life of crime.” In both England and the USA, there was once a sharp distinction between criminal and negligent conduct; the difference between the truly wicked and the merely stupid.
Legislators, however, discovered that criminalization was a wonderful way to outdo one’s opponents on popular issues. Thus, when deadbeat dads became an issue, legislators rushed to make missing child payments a crime rather than rely on civil judgments. When cellphone drivers became a public nuisance, a new crime was born. Unnecessary horn honking, speaking loudly on a cellphone and driving without a seat belt are only a few of the new crimes. If you care enough about child support, littering, or abandoned pets, you are expected to care enough to make their abuse a crime.
High crimes
Consider the budding criminal career of Kay Leibrand. The 61-year-old grandmother lived a deceptively quiet life in Palo Alto, Calif., until the prosecutors outed her as a habitual horticultural offender. It appears that she allowed her hedge bushes to grow more than 2 feet high — a crime in the city. Battling cancer, Leibrand had allowed her shrubbery to grow into a criminal enterprise. (After her arraignment and shortly before her jury trial, she was allowed to cut down her bushes and settle the case.)
Of course, it is better to be a criminal horticulturalist than a serial snacker. In 2000, on her way home from her junior high school in Washington, D.C., 12-year-old Ansche Hedgepeth grabbed some french fries and ate them as she went into the train station. In Washington, it is a crime to “consume food or drink” in a Metrorail facility. An undercover officer arrested her, searched her and confiscated her shoelaces.
Running out of adult targets, many state laws pursue the toddler and preteen criminal element. In Texas, children have been charged for chewing gum or, in one case, simply removing the lid from a fire alarm. Dozens of kids have been charged with everything from terrorism to criminal threats for playing with toy guns or drawing violent doodles in school.
In the federal system, Congress has been in a virtual criminalization frenzy. There are more than 4,000 crimes and roughly 10,000 regulations with criminal penalties in the federal system alone. Just last year, Congress made it a crime to sell horse meat for human consumption — a common practice in Europe where it is considered a delicacy. Congress has also criminalized such things as disruptive conduct by animal activists and using the image of Smokey Bear or Woodsy Owl or the 4-H club insignia without authorization.
The ability to deter negligence with criminal charges has always been questioned by academics. Negligent people are, by definition, acting in a thoughtless, unpremeditated, or careless way. Nevertheless, prosecutors will often stretch laws to make a popular point — even when the perpetrators have suffered greatly and shown complete remorse.
In 2002, Kevin Kelly was charged criminally in Manassas, Va., when his daughter, less than 2 years old, was left in the family van and died of hyperthermia. With his wife in Ireland with another daughter, Kelly watched over their 12 other children. He relied on his teenage daughters to help unload the van and did not realize the mistake until it was too late.
The suggestion that people like Kelly need a criminal conviction to think about the safety of their children is absurd. Kelly was widely viewed as a loving father, who was devastated by the loss. The conviction only magnified the tragedy for this family. (Though the prosecutors sought jail time, Kelly was sentenced to seven years probation, with one day in jail a year to think about his daughter’s death.)
The cost to all of us
The criminalization of America might come as a boon for politicians, but it comes at considerable cost for citizens and society. For citizens, a criminal record can affect everything from employment to voting to child custody — not to mention ruinous legal costs.
Yet, it now takes only a fleeting mistake to cross the line into criminal conduct. In Virginia, when a child accused Dawn McCann of swearing at a bus stop, she was charged criminally — as have been other people accused of the crime of public profanity.
Our insatiable desire to turn everything into a crime is creating a Gulag America with 714 incarcerated persons per 100,000 — the highest rate in the world. Millions of people are charged each year with new criminal acts that can stretch from first-degree murder to failing to shovel their sidewalks.
We can find better ways to deal with runaway bushes, castaway pets, or even potty-mouth problems. Congress and the states should create independent commissions to review their laws in order to decriminalize negligent conduct, limiting criminal charges to true crimes and true criminals. In the end, a crime means nothing if anyone can be a criminal.
The president and Congress have been falling over themselves to pledge better care for our wounded veterans in the wake of the scandal over “squalid” conditions at the Walter Reed Army Medical Center that included mold, rats, cockroaches, rotting walls and callous treatment of patients. The president has empanelled the perfunctory “blue-ribbon commission.” The hospital walls have literally been whitewashed, so politicians can use them again as backdrops for speeches about “nothing being too good” for our troops. Yet no one is talking about the one thing that soldiers and sailors are most desperately lacking: They don’t need another spit and polish; they need lawyers. Continue reading “The Feres Doctrine: What Soldiers Really Need Are Lawyers”
In the collective nightmare of the Virginia Tech massacre, myriad images are seared into our minds. For some, it is the detached and blank expression of the killer, Seung Hui Cho. For others, it is the image of terrified students running past heavily armed police. For me, it is a single door. Indeed, if there is to be a memorial to remember this tragedy, there could be no more poignant or powerful symbol than the bullet-ridden door of Room 204 on the second floor of Norris Hall.
Before April 17, it was the door that led into the classroom of professor Liviu Librescu. For 20 years, students had passed through the doors of Librescu’s classes to learn about engineering from one of the world’s leading aeronautical engineers. Like all academics, his classroom was his special domain, an almost sacred place in the hearts of all academics. It is a place protected from ignorance and intolerance — the enemies of learning. Yet, what makes such rooms special is not the interior but the occupants. The earliest “universities” did not have a conventional campus or building. A university was the collection of faculty and students who’d meet wherever they could find shelter and safety. When a famous teacher such as Plato met with his students, it was often in the open. He and his students would form a circle, and the interior of that circle became a place of learning, a protected space.
Even after universities created the physical protection of campuses, faculty remained the primary protectors of the place of learning. Shutting the school door to ignorance or hatred was an oft-used metaphor. For Librescu, this common metaphor would become a chilling reality.
Saving his students’ lives
About 9 a.m. April 16, when Seung Hui Cho began his shooting spree in Norris Hall, Librescu was in the middle of his solid mechanics class. Panic quickly took hold of the class as students began to scream and turn over desks for shelter. Librescu knew better. He shouted for his students to kick out the window screens and jump for safety as he used his body to block the door. As many as 15 students were saved before the 23-year-old English major was able to overcome the 76-year-old professor by shooting him through the door. Librescu died there in his classroom while most of his students jumped out of the windows to safety.
This was not Librescu’s first encounter with terror. Born in Romania, Librescu was sent to a ghetto holding Jews in World War II and his father was sent to a cruel work camp. He barely escaped the fate of hundreds of thousands of Romanian Jews methodically executed by their government. Now, after surviving the Nazis and later persecution under the dictatorship of Nicolae Ceausescu, he found himself literally holding back a man bent on methodically killing his students. He would die on Holocaust Remembrance Day, ending a life struggle against homicidal rage that began for him as a boy in the work houses of Romania.
The image of Librescu holding back a killer from entering his class is an image that most academics will never forget. Indeed the next day, when I opened the door to my torts class at George Washington University Law School, I felt an immense sense of pride and gratitude to be a member of the teaching academy. Even before we had walls on our classrooms, generations of academics have protected this special place. When I walked into my first class roughly two decades ago, I can remember the overwhelming feeling that this is my classroom and what occurs here is something of my making. It is a notion that is sometimes lost on non-academics. When a painter or a carpenter creates, he has a painting or a chest that is the physical expression of his skills and his vision. It is a manifestation on some level of himself.
For academics, our most important creative enterprise is non-physical. It is a journey of learning that we take every term with our students, a journey that is truly reciprocal in every way. The classroom may be ours for only an hour a day, but during that time, it is entirely ours. For better or worse, it is what we make of it and the truly great teachers, such as Librescu, can make something, while intangible, last a lifetime.
Liviu Librescu was not the only teacher to die in his classroom that day. French teacher Jocelyne Couture-Nowak of Canada; German teacher Jamie Bishop of Georgia; engineering teacher G.V. Loganathan of India and biomechanics teacher Kevin Granata of Ohio also fell where they taught. (Granata died after pulling 20 students into the safety of his locked office and, with another professor, sought to help others.) These five teachers came from three countries but shared a common bound with their students and their classrooms. They died with 27 gifted students who had come to this place of safety to learn about the world and about their role in it.
The gateway. The door.
This brings me back to that bullet-ridden door. The door of Room 204 became a literal barrier for an academic to shield his class and his students from harm. It stands as a reminder of the struggle and sacrifice that so many have made to preserve our places of learning. On one side was a force of unblinking, unthinking hate. On the other side was a force of unbridled loyalty and, yes, love. Cho had to shoot him through the door to gain entry into Librescu’s class. Yet in the end, Librescu won. He prevailed by showing that there are things and people worth dying for. His students were worth dying for. In the midst of unparalleled carnage, he offered a symbol that transcended fear and found meaning in sacrifice. He died as he lived, teaching his students perhaps the most important lesson of his life.
I expect that Virginia Tech will construct a memorial to replace the makeshift memorial outside Norris Hall. Here is my proposal. Place this door where everyone can see it while walking to and from their classes. Under it, simply put the well-chosen Latin motto of Virginia Tech: Ut Prosim— That I May Serve.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
For those who believe that American democracy is at a crisis point, there is no more vivid example than Minnesota, where comedian Al Franken has launched a full-throated effort to unseat Republican Sen. Norm Coleman. It is fast-food politics at its artery-clogging worst: instant gratification and no nutritional value. Yet, Franken has both personal wealth and a host of wealthy donors at his call — pushing out virtually all competitors. While Minnesota has long prided itself on favoring underdogs, the day may have passed when an idea-rich, cash-poor candidate can secure a major office.
Democracy becomes a noble lie when money bars most citizens from elective office. Candidates must now pony up millions to have a chance for statewide office, creating a type of oligarchy where offices are restricted to a small elite. The closing of politics to most citizens has profound implications for the country. There was a time when politics attracted certifiable geniuses such as Thomas Jefferson, James Madison and Daniel Webster.
The threshold barriers to new voices entering our political process were evident during a recent conversation that I had with Nobel Prize winner Peter Agre. A Minnesota native, Agre revealed his interest in running but said he was told by state politicos that, in opposing Franken, he is a day late and a dollar short — well, $9 million to be specific. That was the amount that he would need to be “credible.” Despite a lack of money, Agre still intends to run as either a Democrat or independent.
Money machines
The $9 million could prove a conservative estimate. The average cost of the 10 most expensive Senate campaigns doubled in four years from $17 million in 2002 to almost $35 million in 2006. The 2008 presidential campaigns have already triggered their own records. In the 2000 Senate race in Minnesota, lawyer Mike Ciresi (who is also running in 2008) put up $5 million of his own money in his losing bid.
To win, a candidate needs buzz and bucks, and Franken — who has raised $1.4 million as mere seed money — has an endless supply of both. He thrilled bored voters by calling Coleman “one of the administration’s leading butt boys.”
Conversely, Agre does not have much to put on the table beyond a Nobel Prize for chemistry and global work on behalf of academic freedom. In today’s politics, that gives him about the same odds as Albert Schweitzer running against Arnold Schwarzenegger.
Of course, brilliance is no guarantee that Agre would make a good senator, and he would have to prove that he could appeal to people beyond Minnesota Mensa members. Nonetheless, there is something fundamentally wrong when a man such as Agre is considered political roadkill. Even in a state that once embraced underdog candidates such as professional wrestler Jesse Ventura (who became governor) and college professor Paul Wellstone (the late U.S. senator), money now confines politics to the ranks of rich personalities and robotic functionaries.
Obviously, money has long played a great role in politics. But the exponential rise in campaign costs belies the popular notion that anyone can become president or senator in this country.
Except for his lack of money, Agre would appear the perfect candidate. Besides instantly doubling the IQ of the Senate, Agre would be the first Nobel Prize winner for science to be elected to Congress. While the Senate has been Nobel-free for more than six decades, he would join three prior senators and one vice president (the president of the Senate) who received Nobel Peace Prizes.
Born in Minnesota and a former Eagle Scout to boot, Agre seems to have walked off the set of A Prairie Home Companion: milking cows in the summer and eating lutefisk in the winter — a vile codfish soaked in lye that only a snow-crazed Norwegian can swallow with success. Part of a large farming and working-class family, Agre went to Theodore Roosevelt High School in Minneapolis (with another student named James Janos — later known as Jesse Ventura). His father was the chairman of the chemistry department at St. Olaf College. Growing up, Linus Pauling — two-time Nobel laureate for chemistry and peace — stayed at their home, unaware that the gangly kid running around would inherit his Nobel Prize 49 years later.
Clear contrast
Agre’s announcement would create a wild contrast for Minnesota voters. On one side, there is Franken, whose contributions to humanity include such books as Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right and Rush Limbaugh is a Big Fat Idiot. On the other side is Agre, who has quietly served medicine and human rights for decades around the world. His published works include scientific breakthroughs credited for having “ushered in a golden age of biochemical, physiological and genetic studies … at the molecular level.”
Agre could present an equally sharp contrast with Coleman on issues such as stem cells. Coleman has often discussed his tragic loss of two children to a rare genetic disorder as shaping his opposition to most stem cell research. Agre’s loss of his 3-month-old daughter, Lydia, to cerebral palsy helped shape his views in favor of such research.
The question is whether Agre will have a chance to make his case. The Man from Mensa could be the ultimate test of whether merit still plays a significant role in U.S. politics or whether money alone dictates our choice of leaders.
Of course, the very notion of a Nobel laureate joining the less-than-cerebral ranks of the U.S. Senate is something too much to hope for. It would be a scene reminiscent of when John F. Kennedy welcomed Nobel Prize winners to the White House in 1962 and observed, “Never has there been so much collective intelligence in this room, since Jefferson dined here alone.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
Published in June 2007
Fatherhood is the one job that you can get without the slightest degree of experience, knowledge or talent (despite what you may hear to the contrary on Father’s Day). For that reason, when a friend had his first child recently, I quickly rattled off the most important things that I have learned as the father of three boys and a girl: Don’t wear white shirts while changing boys (they consider it a type of canvas); the easiest way to extract material from noses is a hot bath (except for cheese sticks); always check your briefcase for toy guns before entering a courthouse; and always check the children for captive animals before leaving a forest.
But the most important lesson is that all children are born with an innate sense of the law. Indeed, when the Framers spoke of natural rights, they might have hit on the same discovery in their own children. You can actually track your kids’ development by the legal arguments they make. Take it from me, the best way to prepare for parenting is to take a law course at your community college.
Takings. The Constitution prohibits the taking of property without compensation by the government. Within their first two years, all children embrace this principle with a vengeance. Parents learn they must compensate for any item removed: a toy for the car keys; a cracker for the 12-inch butcher knife.
Contracts. By 3, negotiating with kids is like working with little Teamsters on a labor contract. Bring a sandwich truck to the site; it becomes part of the contract. Likewise, once a parent buys a scone at Starbucks or allows cartoons in the morning, it is part of an unwritten but enforceable contract. This develops into a form of collective bargaining with the addition of another sibling: Any benefit to one is instantly an expected benefit to the other. Break the contract and you’ll face work stoppages, unending protests and even sabotage that ranges from spilled milk to items in the trash can.
Cruel and unusual punishment. By 3, children have defined what they view as cruel and unusual punishment. Denials of favorite foods or toys are considered to be measures that “shock the conscience” and require immediate redress.
Privacy. As soon as a child goes through potty training, privacy becomes an increasingly important right — reaching its apex in the teen years. The same parents who spent two years changing them and bathing them must now sequester themselves in a distant room to avoid the “chilling effect” of surveillance.
Equal protection. By 6, all children put themselves in what the Supreme Court calls “a suspect class” — any different treatment based on their identity as a sibling can be enforced only after parents show a compelling reason that they are using “the least restrictive means.” Otherwise, a difference of only 10 minutes in television time is enough to unleash demonstrations reminiscent of the march on Selma.
Due process. By 6, kids will insist on full due process in adjudicating their claims. Major penalties such as loss of Game Boys require something close to a full trial with two days of arraignment, jury selection and sequestration — and inexhaustible appeals.
Free speech. By 10, children have developed an almost unlimited expectation of free speech. Indeed, since they have now concluded that your views are worthless and out of date, it increases the necessity of your listening to them. Parents are forced to change their content-based regulations from the toddler years to “time, place and manner” restrictions for teens.
Free association. When you object to a boyfriend with more body-pierced metal than a tank, your child will discover the right to association. With the acquisition of a learner’s permit, she will add a claim of free travel (which also involves your car).
The final years of adolescence are filled with conflicts over search-and-seizure rules and the monitoring of electronic communications without probable cause. Of course, by the time your child reaches the late teenage years, you have become the Alberto Gonzales of parents: continual surveillance, spontaneous searches, detention without appeal. You can then wait for your little litigators to become parents in their own right. It is then that you can undermine their authority by plying their children with unlimited sugar-based products and allowing them to live as anarchists under your roof. Your children will then learn the meaning of James Madison’s observation that “if men were angels, no government would be necessary.”
