Prosecutorial Jerk Off

Miami Herald columnist Fred Grimm reports (pasted below) on the prosecution of a 20-year male prisoner for masturbating in his cell in the Broward County Jail. Yep. Terry Lee Alexander was tried by the office of Broward County State Attorney, Michael J. Satz and convicted. Obviously this case will be the source of innumerable jokes and puns. But it demonstrates an all-too-common lack of perspective in prosecutors' offices around the country -- cases that do not warrant prosecution get to court because they can be brought.

Let's look at the Florida Criminal Code to see if the no-nonsense Florida legislature might have thought this kind of case deserves prosecution:

775.012 General purposes.--The general purposes of the provisions of the code are:

(1) To proscribe conduct that improperly causes or threatens substantial harm to individual or public interest.

(2) To give fair warning to the people of the state in understandable language of the nature of the conduct proscribed and of the sentences authorized upon conviction.

(3) To define clearly the material elements constituting an offense and the accompanying state of mind or criminal intent required for that offense.

(4) To differentiate on reasonable grounds between serious and minor offenses and to establish appropriate disposition for each.

(5) To safeguard conduct that is without fault or legitimate state interest from being condemned as criminal.

(6) To ensure the public safety by deterring the commission of offenses and providing for the opportunity for rehabilitation of those convicted and for their confinement when required in the interests of public protection."

Raise your hand if you think this "conduct improperly causes or threatens substantial harm to individual or public interest."
Raise your hand if you think there is a "legitimate state interest" in "condemn[ing] as criminal" a 20 year old who masturbated in his jail cell.

In 1991, The National District Attorneys Association adopted National Prosecution Standards, 2nd Edition. An appropriate general guidance is in standard 1.1, "The primary responsibility of prosecution is to see that justice is accomplished." No room for argument there, is there?

Standard 42.3 (at pp. 125-126) spells out the factors a prosecutor should consider in exercising his or her discretion to screen out a case for non-prosecution -- cases in which the "prosecution is not justified or not in the public interest." Such factors potentially relevant in this case include:

"d. Possible improper motives of a victim or witness;
e. The availability of adequate civil remedies; [like punishment by the jail]
f. The availability of suitable diversion and rehabilitative programs;
k. The attitude and mental status of the accused; [yes, consider being 20 years old in jail]
l. Undue hardship caused to the accused;
m. A history of non-enforcement of the applicable violation;
p. Any mitigating circumstances."

One would think that State Attorney Satz, who took office in 1976, might recognize "a history of non-enforcement of the applicable violation" would apply in this case.

This case did not belong in court.

Update:
The American Bar Association On-line Journal reports that there were eight more cases!

And, upholding the dignity of our justice system (if not to assure a fair trial for the accused), jurors were questioned about the masturbation habits!
This prosecutor is shameless!

* * * *

Miami Herald

Posted on Thu, Jul. 26, 2007
Justice went blind in this jailhouse case

BY FRED GRIMM

First, in the spirit of full disclosure, I attended a military boarding school. If Ken Jenne had been headmaster, my entire senior class would have been up on charges.

Jenne, as sheriff and chief jailer in Broward County, has launched a crackdown on self-abusing miscreants. It's no longer enough to warn hairy-palmed drooling deviants that self-indulgence risks stunted growth, blindness, sallow skin, slackened jaws, amnesia, shrunken testicles, impotence and, for Catholics in particular, eternal damnation. Jenne wants jail time.

And, late Wednesday afternoon, in a triumph of creative law enforcement, masturbation in the county jail became a criminal pleasure. Good for another 60 days behind bars.

Sheriff Jenne, with help from the office of State Attorney Mike Satz, who has taken on additional duties as Broward's dean of boys, notched a law enforcement triumph when a county court jury convicted Terry Lee Alexander, 20, of going at it in his cell last November.

At the time of the offense, Alexander was punished with 30 days without TV, music, exercise time and other jail house perks. But obviously self-abuse demands a criminal charge and a full-blown jury trial, and two prosecutors, and a court-appointed taxpayer-paid defense lawyer and six jurors (and an alternate), and a judge, and a court reporter, and a couple bailiffs, and a pretrial deposition, and a daylong trial.

Not that any of the time and expense of a trial would have any actual effect on the life of the defendant. Alexander was already looking at 10 years for a robbery conviction. But the trial was clearly intended to send a message from the sheriff and state attorney to other sex fiends lurking in their lock-up.

The sheriff's critics, of course, might find the prosecution of a masturbation case curious given the burst of violent crimes that has beset the county lately. They might also point out that Sheriff Jenne, who's feeling the heat of a federal criminal investigation himself, may come to appreciate the sexual needs of a lonely inmate.

And there's also the lingering issue of what seems to be a spectacular case of selective prosecution. The prosecution's only witness, jailer Coryus Veal, testified Wednesday afternoon, ``They had warned me about what goes on there.''

Indeed, ''they'' were right.

Deputy Veal initiated criminal charges against eight inmates (Four, so far, have taken plea deals while three others await trial.) for what may be the most flouted violation in the history of jails, boarding schools, seminaries and military barracks. And who knows what goes on underneath those flowing black judicial robes.

Technically, Alexander faced charges of indecent exposure, with lots of lewd, lascivious, wicked, deviant, etc. tacked on. He also faced the prosecution's tortured contention that his jail cell qualified as a ``public place.''

In the course of the one-day trial, prosecutor Cynthia Lauriston and Veal managed to describe Alexander's offense in startling detail, eight times, once with Lauriston approximating the action with arm motions. It was hard to imagine the original act could have had a much more lascivious effect than the lurid stuff those poor women had to utter, over and over, in Courtroom 417 Wednesday.

''It was very vulgar. Very indecent,'' Veal testified.

She was describing the crime but she could have been characterizing the prosecution, the trial, the verdict and the obscene, indecent, vulgar, lascivious, downright stupid waste of time and money.

Sphere: Related Content

National Medicine Abuse Awareness Month -- August 2007

This is it! August 2007 -- the first National Medicine Abuse Awareness Month!

Senate Resolution 225 passed the Senate on June 26, sponsored by Senators Biden and Grassley.

Let's hear it for education.

The Community Anti-Drug Coalitions of America have teamed with the good folks at the
Consumer Healthcare Products Association (founded in 1881 as The Proprietary Association http://www.chpa-info.org/ChpaPortal/AboutCHPA/History/) to fight cough medicine abuse, http://www.doseofprevention.org/overview.html a worthwhile endeavor.
Note the CHPA history:
"Eighty-four companies were represented at the group's first annual meeting in 1882. Standard therapy of the time included bloodletting, purging, and blistering, along with 'home remedies' concocted from various herbs. The great attraction of this 'green' medicine, as it was often called, was its safety. It didn't always help, but it almost never harmed.
Proprietary medicines flourished in this setting. In 1880, shipments were estimated at $15 million."

Without mentioning specific ingredients, it seems that this old trade association is proud of its role in distributing cannabis products in the 19th century.

Senate Resolution 225

IN THE SENATE OF THE UNITED STATES

June 7, 2007

Mr. BIDEN (for himself and Mr. GRASSLEY) submitted the following resolution; which was referred to the Committee on the Judiciary

June 21, 2007

Reported by Mr. LEAHY, without amendment
http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2007_record&page=S8520&position=all

Passed the Senate on June 26, 2007

---

RESOLUTION

Designating the month of August 2007 as `National Medicine Abuse Awareness Month'.

Whereas over-the-counter and prescription medicines are extremely safe, effective, and potentially lifesaving when used properly, but the abuse and recreational use of these medicines can be extremely dangerous and produce serious side effects;

Whereas 6,400,000 individuals who are age 12 or older reported using prescription medicines non-medically in a recently sampled month, and abuse of prescription medications such as pain relievers, tranquilizers, stimulants, and sedatives is second only to marijuana, the number 1 illegal drug of abuse in the United States;

Whereas, recent studies indicate that 1 in 10 youth ages 12 through 17, or 2,400,000 children, has intentionally abused cough medicine to get high from its dextromethorphan ingredient, and 1 in 5 young adults (4,500,000) has used prescription medicines non-medically;

Whereas, according to research from the Partnership for a Drug-Free America, more than 1/3 of teens mistakenly believe that taking prescription drugs, even if not prescribed by a doctor, is much safer than using street drugs;

Whereas teens' and parents' lack of understanding of the potential harms of these powerful medicines makes it more critical than ever to raise public awareness about the dangers of their misuse;

Whereas, when prescription drugs are misused, they are most often obtained through friends and relatives, but are also obtained through rogue Internet pharmacies;

Whereas parents should be aware that the Internet gives teens access to websites that promote medicine misuse;

Whereas National Medicine Abuse Awareness Month promotes the message that over-the-counter and prescription medicines are to be taken only as labeled or prescribed, and when used recreationally or in large doses can have serious and life-threatening consequences;

Whereas National Medicine Abuse Awareness Month will encourage parents to educate themselves about this problem and talk to their teens about all types of substance abuse ;

Whereas observance of National Medicine Abuse Awareness Month should be encouraged at the national, State, and local levels to increase awareness of the rising misuse of medicines;

Whereas some groups, such as the Consumer Healthcare Products Association and the Community Anti-Drug Coalition of America, have taken important proactive steps like creating educational toolkits, such as `A Dose of Prevention: Stopping Cough Medicine Abuse Before it Starts', which includes guides to educate parents, teachers, law enforcement officials, doctors and healthcare professionals, and retailers about the potential harms of cough and cold medicines and over-the-counter drug abuse ;

Whereas the nonprofit Partnership for a Drug-Free America and its community alliance and affiliate partners have undertaken a nationwide prevention campaign utilizing research-based educational advertisements, public relations and news media, and the Internet to inform parents about the negative teen behavior of intentional abuse of medicines so that parents are empowered to effectively communicate the facts of this dangerous trend with their teens and to take necessary steps to safeguard prescription and over-the-counter medicines in their homes; and

Whereas educating the public on the dangers of medicine abuse and promoting prevention is a critical component of what must be a multi-pronged effort to curb this disturbing rise in over-the-counter and cough medicine misuse: Now, therefore, be it

Resolved, That the Senate--


(1) designates the month of August 2007 as `National Medicine Abuse Awareness Month'; and

(2) urges communities to carry out appropriate programs and activities to educate parents and youth of the potential dangers associated with medicine abuse .

Tags: National Medicine Abuse Awareness Month, cough medicine, DXM, dextromethorphan, Consumer Healthcare Products Association, CADCA

Sphere: Related Content

"Malice" of police and prosecutors -- the drive to convict

This thoughtful op-ed discusses the framing of defendants (guilty as well as the innocent) in homicide cases. Sadly, the crusader mentality that infects our national thinking about drug use and drug users creates a similar dynamic for police and prosecutor "framing" defendants in drug cases. This is a phenomenon that is not as high profile as murder cases, but is much more common.

It would be interesting to try to compile as many such instances as possible -- a subset of the DRCNet corrupt cop weekly report.

August 2, 2007
The New York Times
"The Presence of Malice" By RICHARD MORAN, Op-Ed Contributor

South Hadley, Mass.

LAST week, Judge Nancy Gertner of the Federal District Court in Boston awarded more than $100 million to four men whom the F.B.I. framed for the 1965 murder of Edward Deegan, a local gangster. It was compensation for the 30 years the men spent behind bars while agents withheld evidence that would have cleared them and put the real killer -- a valuable F.B.I. informant, by the name of Vincent Flemmi -- in prison.

Most coverage of the story described it as a bizarre exception in the history of law enforcement. Unfortunately, this kind of behavior by those whose sworn duty it is to uphold the law is all too common. In state courts, where most death sentences are handed down, it occurs regularly.

My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law -- all of which I found in my research -- as merely mistakes or errors.

Mistakes are good-faith errors -- like taking the wrong exit off the highway, or dialing the wrong telephone number. There is no malice behind them. However, when officers of the court conspire to convict a defendant of first-degree murder and send him to death row, they are doing much more than making an innocent mistake or error. They are breaking the law.

Perhaps this explains why, even when a manifestly innocent man is about to be executed, a prosecutor can be dead set against reopening an old case. Since so many wrongful convictions result from official malicious behavior, prosecutors, policemen, witnesses or even jurors and judges could themselves face jail time for breaking the law in obtaining an unlawful conviction.

Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term "wrongfully convicted" is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system -- not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.

In the interest of fairness, it is important to note that those who are exonerated are not necessarily innocent of the crimes that sent them to death row. They have simply had their death sentences set aside because of errors that led to convictions, usually involving the intentional violation of their constitutional right to a fair and impartial trial. Very seldom does the court go the next step and actually declare them innocent.

In addition, some of these unlawful convictions resulted from criminal justice officials trying to do the right thing. (A police officer, say, plants evidence on a defendant he is convinced is guilty, fearing that the defendant will escape punishment otherwise.) In cases like these, officers or prosecutors have been known to "frame a guilty man."

The malicious or even well-intentioned manipulation of murder cases by prosecutors and the police underscores why it's important to discard, once and for all, the nonsense that so-called wrongful convictions can be eliminated by introducing better forensic science into the courtroom.

Even if we limit death sentences to cases in which there is "conclusive scientific evidence" of guilt, as Mitt Romney, the presidential candidate and former governor of Massachusetts has proposed, we will still not eliminate the problem of wrongful convictions. The best trained and most honest forensic scientists can only examine the evidence presented to them; they cannot be expected to determine if that evidence has been planted, switched or withheld from the defense.

The cause of malicious unlawful convictions doesn't rest solely in the imperfect workings of our criminal justice system -- if it did we might be able to remedy most of it. A crucial part of the problem rests in the hearts and souls of those whose job it is to uphold the law. That's why even the most careful strictures on death penalty cases could fail to prevent the execution of innocent people -- and why we would do well to be more vigilant and specific in articulating the causes for overturning an unlawful conviction.

Richard Moran is a professor of sociology and criminology at Mount Holyoke College.

Tags: unlawful convictions, Richard Moran, anti-drug crusade, framing the innocent, framing the guilty

Sphere: Related Content

Commuting Scooter Libby's Sentence

Who deserves to have their sentence commuted? Anyone whose sentence is excessively harsh.

Sometimes the criminal justice system orders harsh sentences in order to "convince" the accused to "flip" on higher-ups. In such cases the harsh sentences are frequently reduced.

President Bush has not created a record that he is generally concerned to use his constitutional power to commute sentences (Article II, section 2) when they are excessive. Having been the president in recent memory who has used this power the least, it really is not believable that his commutation of Scooter Libby's 2 1/2 year prison sentence for lying to the grand jury is motivated exclusively -- or even a little bit -- by a tender feeling that excessively harsh sentences should generally be commuted.

Indeed, looking at his record, that this is the reason that motivates him to commute Scooter Libby's sentence is utterly implausible. He has pending before him (in the office of his Pardon Attorney) about 3000 petitions for commutation of sentence.

Just consider one case, that of Clarence Aaron. His case has been repeatedly brought to President Bush's attention by the valiant effort of Deborah Saunders, conservative columnist for the San Francisco Chronicle. Aaron, pleaded not guility, and a jury found him guilty of being part of a cocaine purchase for a crack dealing organization in Mobile, Alabama. Pursuant to the Sentencing Guidelines for the quantity of cocaine said to have been involved (enough to fill a briefcase), even as a go-between who was never going to receive any of the profit of the drug deal, because the quantity, he was sentenced three terms of life imprisonment. Aaron, whose case was featured on PBS Television's Frontline in 1999, was a college student when he was brought into the case by his buddies from home. The leaders of the organization worked out plea deals and are all out of prison now, but Aaron is destined to die in prison unless a president commutes his sentence.

No, a revulsion for excessively harsh sentences has not been a part of the character of President Bush. Why else might he have pardoned Vice President Cheney's former chief of staff?

If one recalls the case of Watergate burglars of June 1972 who were sentenced to prison of Judge "Maximum" John Sirica in 1973, one of them, James McCord, facing years in prison, broke, and informed Judge Sirica about what McCord said was a wide ranging coverup of the burglary. McCord, it turned out, was telling the truth.

The question that must have troubled the President and his close aides was whether, once sentence to prison, Scooter Libby, with young children, was prepared to "rot in prison" and "take the fall." The President or his advisers must have wondered whether Libby might find irresistible the temptation to use his "get out of jail ticket" -- that is reveal to the prosecutor his knowledge of who directed the leaking of Valerie Plame's name and identity as a secret agent for the CIA.

As a general matter, the President should not be chastised for using his power to grant reprieves and pardons. It is important that the President use his powers appropriately. (In fact, the practice of regularly exercising his actual powers may serve to minimize the drive to claim powers he does not have.) The power to grant reprieves and pardons was seen by the framers of the Constitution as very important. It is in the same sentence that names him Commander in Chief of the Army and Navy!

The justice system would be well served by a more frequent use of the power to commute sentences. But it corrupts the justice system to use such favors only for close cronies, and deny the real reasons behind the selection of beneficiaries of this important power.

It appears that the President is prepared to take the likely considerable political flak for this commutation of sentence in exchange for protecting extremely senior figures in his Administration from the possibility that Scooter Libby might have decided that his imprisonment was unfair.

Tags: commutation, Article II, Scooter Libby, pardon, reprieve, Clarence Aaron, Deborah Saunders, Valerie Plame, Judge Reggie Walton, Cheney, President Bush

Sphere: Related Content

You can't say "BONG HiTS 4 JESUS" in school

Today the Supreme Court whittled away at the speech protection for public school students in Morse v. Frederick, the "BONG HiTS 4 JESUS" banner case from Juneau, Alaska, in an opinion by Chief Justice Roberts. Only Scalia and Thomas were solidly with Roberts.

Justice Alito wrote a very pointed concurring opinion (joined by Kennedy) saying that he viewed the reach of the majority opinion as very narrow. As members of the majority, they read the banner as advocating illegal drug use. Alito stressed that he "join[s] the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.' "(citing Justice Stevens dissent).

On the issue that actually got the case to the Supreme Court -- the Ninth Circuit's holding that the principal was personally liable for damages for suspending student Joseph Frederick -- there was unanimity: no liability. If the Ninth Circuit had not gone that far in its opinion last Spring, it is quite possible this case never would have got to the Supreme Court.

The extreme position taken by the principal and school board (the petitioners in the case, represented by Kenneth Starr, former Whitewater Independent Counsel who investigated President Bill Clinton and found Monica Lewinsky), and supported by the Federal government, that "the First Amendment permits public school officials to censor any student speech that interferes with a school's 'educational mission'" was rejected. (concurring opinion of Justice Alito).

Justice Stevens dissented (joined by Souter and Ginsburg). Stevens would allow advocacy of drug use. "It is also perfectly clear that 'promoting illegal drug use,' comes nowhere close to proscribable 'incitement to imminent lawless action.' Brandenburg, 395 U.S., at 447. Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship..."

Justice Thomas would have overruled the seminal case of Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) that ruled that student may wear armbands to protest the Vietnam War. Thomas conducts an historical analysis of the rights of students in the Eighteenth and Nineteenth Century and finds that at the time of either the First Amendment or the Fourteenth Amendment there was no right of students to speak, and that teachers and schools had very broad powers to discipline and punish students who were disobedient or disorderly.

Justice Breyer would have restricted the ruling to the issue of the principal's liability and not ruled on the First Amendment question.

Tags: Bong Hits 4 Jesus, free speech, student speech, drug-related speech, advocacy of drug use

Sphere: Related Content