Saturday, December 27, 2008

The Exculpatory Evidence Machine

I have often thought of the criminal justice system, that hoary mistress to the prison industrial complex, as a meat grinder. It chews people up and spits them out. As a public defender, I regularly act as the guy who tries to extricate them at the last second or the guy who gets them through it with as little suffering as possible. I often fail.

Lawyers such as me, who defend the least among us in this society, understand that you can't find exculpatory evidence hiding under a rock, and you can't pull it out of the ether. However, you can create it.

One place where a lawyer can create exculpatory evidence is the preliminary hearing room. What is a preliminary hearing room? The preliminary hearing room is the courtroom where arrested persons charged with felonies first see a judge and decide whether to demand a hearing. What is a preliminary hearing? A preliminary hearing is an evidentiary hearing where the city judge determines if there is probable cause to have the matter "bound over" to the county system for felony prosecution.Witnesses who testify at preliminary hearings are doing so at a time most contemporaneous with the matter at hand. They do so under oath. Their statements are recorded and may be produced at a subsequent trial.A defense lawyer's goal in a preliminary hearing is not, merely, to win. It is to lock in a version of events, under oath, so that subsequent muddling will be revealed. That revelation of muddling, during trial, is exculpatory. It negates culpability. It is honest to God exculpatory evidence, created in the preliminary hearing room.

Now, it may not feel like that suppressed DNA evidence report, or the secret witness little old lady across the street who saw the whole thing but doesn't want to get involved. But it is an essential tool for trial: prior sworn testimony.

Case in point: a skittish, racially and sexually confused and paranoid individual is arrested at the car lot where mechanics have given him the runaround for days. As police approach and confine him, he bolts for the door and sprains a cop's wrist. He is charged with a felony and a preliminary hearing is had. The cop's prior sworn testimony revealed that no intent to assault occurred, no consciousness of guilt could be found. At trial, months later (me, appointed, after a string of annoyed private lawyers had fled from the case) the prior sworn testimony revealed that subsequent muddling occurred. He was found not guilty.

The preliminary hearing is not merely a tool for crafty lawyering, though. It's a testament to the integrity of the system. It is fair, on a basic level, to expect that witnesses make their claims early in the process and under oath and under cross-examination when events are fresh in their minds. Any principle-minded individual who aims to make the criminal justice system "just" must agree. It don't take a justice major (lit minor) to figure that one out.

The preliminary hearing is an elusive bird. In our jurisdiction they rarely occur. Why? First, there's another way to initiate felony prosecution; that is, through presentment of evidence to the grand jury for indictment. The presentation of evidence to the grand jury is non-adversarial. It is not subject to cross examination, and its proceedings are hush hush. It's the county prosecutor's dog and pony show. No defense lawyers allowed!

The county prosecutor often takes the simplest route to indictment: presentment to the grand jury before a preliminary hearing occurs. This renders a preliminary hearing as moot because an indictment has already been secured through alternative (secret, non-adversarial, not subject to cross-examination) methods. The city case that would have been bound over has been "nolle: indicted."

This is a shame, because an open, adversarial discussion of the nature of the evidence is exchanged for a secret proceeding. That trade-off seems unjust. It deprives society of the right to see and know accusers. It deprives defendants of fresh, eyewitness testimony.And yet, when assigned to the preliminary hearing room in my role as public defender, I frequently advise that defendants waive their preliminary hearing. It has to do with bond and access to counsel and the particular charges and the dreadful conditions of local incarceration. I am not alone in often advising that preliminary hearings be waived.

There is a happy medium somewhere between having a preliminary hearing on every potential felony and never having them at all. It is the obligation of the public defender assigned to the room to find that happy medium for the benefit of individual defendants, as well as, for the benefit of an open society that is unafraid to question, under oath, the official story.

Lawyers such as me know that anything that doesn't jibe with the official story is exculpatory. Each morning in Courtroom 3-D, the exculpatory evidence machine churns on, slower than one might hope, but at least it's working.

Friday, December 26, 2008

A Trinitarian Notion

Raised a Catholic, I have been taught to split the concept of God into thirds -- Father, Son, Holy Ghost. I have often suspected some smoke and mirrors on this point, as if this trinitarian notion was specifically designed to mislead us, divert our attentions, confuse us into submission. I recall the lion tamer in Errol Morris' Fast, Cheap and Out of Control, who reveals why they seem to provoke their animals with the four legs of a chair: the lions can concentrate on only one leg at a time and will soon get confused and lie down.

Nevertheless, there is something appealling about things trinitarian: disparate concepts synthesized into one. I never expected to find a cinematic trinity that would hold such sway over my views of film, but now that I have, I will run with it. My Cinematic Trinity: Magnolia, Network, Close Encounters of the Third Kind. These films are connected in ways you do not expect; mysterious ways.

I begin with Melinda Dillon. In CE3K, we find her cowering in the corner, clutching her child, terrified and screaming as an unimaginable "supernatural" event occurs outside. In magnolia, we find her cowering in the corner, clutching her child, terrified and screaming as an unimaginable "supernatural" event occurs outside.

Then there's the TV show host collapse. In Network, Mr. Beale endures a disturbing episode or seizure and falls to the ground in front of a live studio audience. In magnolia, Jimmy Gator does the same.

The "look" of the WDKK? set matches that of the Howard Beale Show. While Network has no musical soundtrack to speak of, it does include the stirring drumroll/brassy theme to Beale's Show, echoed in magnolia by Jon Brion's swingy WDKK? theme.

Music is integral to the story telling in both CE3K and Magnolia, and both include a "musical crescendo." The musical note communique recieved by Dreyfuss in CE3K is parodied in magnolia by the musical note quiz questions.

Anderson clearly reached back to the 70's for thematic and visual inspiration. The Magnolia DVD extras actually includes him screening Lumet's film for cast and crew, asking them to look at the cinematography and pay attention to the "old school" television men, like his own father, Ernie "Ghoulardi" Anderson, a late night Cleveland horror show host.

If I have convinced you that these movies are intentionally connected, then pull back your lens a little further and consider this: Network is The Father, CE3K is The Son, and Magnolia is The Holy Ghost. Network, the dark, cruel God of the Old Testament, savage and vengeful, it ends with a "crucifixion." CE3K, the loving, benevolent God of the New Testament, hopeful and joyous, it ends with an "ascension." Magnolia, the kitchen sink God of everything else, the God of the Next Testament, perhaps, it ends with a shocking Exodus 8:2 reminder that "this is something that happens" and we simply can't explain it all away: sometimes, we have to let the mystery be.

One from/for the Archives

[As the De-Bushification of America begins, posterity beckons...]


APR 18, 2004 07:23 AM

Dear Mr. Bush:

I write this as a concerned citizen of democracy. I think you are unfit for public office. I think that you are a scared, unintelligent man who has been led along by handlers your whole life. I do not think you are an evil man, because life is more complex than a comic book, but you are clearly in over your head as commander of the free world.

I base this opinion on what I've read about you over the years, what I've seen on television, and what you have said and done. My suspicions were first aroused when I realized that the son of a president was running for president. It was cemented when your brother (also, the son of the same president) governed the state where much fraud and mismanagement led to a questionable election. Since then, you have not proven me wrong.I even gave you a pass on being a conservative fundamentalist Christian, and a recovering alcoholic or drug addict, whichever you are/were. I've never considered the silly fact that you were a cheerleader at Yale. I could have cared less about dodging Vietnam with your old man's clout. Who wouldn't? None of those things hurt my opinion of you.

It was mostly my belief that your family has been profiteering off of war and military contracts through much of the twentieth Century. Your grandfather had assets frozen for working with the Nazis. Your dad now buys faltering defense contractors, then peddles them off to foreign dignitaries, including Arab dignitaries. He had worked his way up the N.S.A ladder, through those lean Ford years, and met many like-minded people you now surround yourself with. His involvement with oil interests, here and in the Middle East, are well documented. You were groomed to be president, Mr. Bush. And that is what bothers me most. Because, now, we need a real leader, someone we can trust not to screw up the world any worse than it is. You have no credibility with the Arab world, you have no credibility with the European world, you have no credibility with the Jewish world. You don't even have credibility with Republicans.

I am glad that the oil industry gave you Dr. Rice. She did such good work for them, here and abroad, that they named an oil tanker after her. She really was a sharp person, and she helped you through the darkest day in American History. But she's not making sense anymore. I'm glad that she wouldn't take the fall, that she got good advice from former national security advisers, like your dad, on how to avoid responsibility: restate the question in as convoluted and wordy terms as possible, then give "preliminaries" before answering the question, then give a short official answer that defies controversy. If anyone gets testy, just ask to be able to finish the question just asked, and why a more thorough and thoughtful explanation would aid the examiners. She sweated them out without saying much, but she didn't help you at all.

If I could ask you two questions that no one has already asked, I think they'd be these: First, have you ever met Osama bin Laden? I mean, like, in your earlier years, at some fabulous sultan's party or a Republican "freedom fighter" fundraiser. If yes, I'd like to hear about it. If no, I wonder if any would dispute that assertion. Second, why were so many unrevealed members of bin Laden's house ushered out of the country without incident after 9/11? I can't understand that. I understand protecting them if they are friends, but I don't understand allowing them to fly when no one, NO ONE ELSE, except your military, was allowed to get to their flight destinations. I also wonder why no agency questioned those soon to be whisked away members of bin Laden's house before violating the national no-fly that was a consequence of a terrorist attack.

Maybe you'll provide new answers during your testimony before the 9/11 commission, but I'd guess Mr. Cheney will be there to make sure that doesn't happen. He and Rumsfeld and Ashcroft all learned that with your old man in the Nixon years.

I don't want you to resign. I want you to stay in office until the election. You can leave immediately after the election, but you don't have to. You can stick around for inauguration day, as long as your shredding and deletions are prevented. We'd all feel safer with you, the weak and humiliated world leader, than your crazy VP. That guy's really dangerous. From Enron to Halliburton, he's profiteering from war as his moral progenitors did before, and he continues to foster chaos in world matters.

You were never worthy of the stewardship mandated by the Office of the President. You were so intertwined with oil, guns, the military-industrial complex, Yale, etc., that you never had a chance to be the independent leader of a free nation. All decisions were made for you by those who have been enriching themselves off of the misery of others, here and abroad, for generations. You're too enmeshed in the faltering pro-Republican aristocracy of this once great nation to be an honest politician. There are very few honest politicians these days; at least, very few who don't have to cater to special interests, but your special interests trouble me deepest.

Apologize. In your vernacular, repent. You have been misled down a difficult path, and you did not resist it strong enough. You have made bad moral, ethical, fiscal and political decisions. We don't need to go into every one of them, but you could certainly address a few. Put us at ease by shifting your stances toward peace, toward mutual respect for all persons, American or otherwise. Put us at ease by conceding that your priorities have changed, that you want the Muslim world - both peaceful, loving Muslims and those inclined to hate our leadership - to understand that our actions in the Middle East are now unconscionable.I hope you come to terms with your trecherous place in history. Perhaps you could turn things around for yourself after you've left public life, write a book called, "I'm Sorry," or "I Lied To You A Lot Because I Was Told To," or "The Whole Truth: My Family, My Jesus, My Oil." Just sit down and write it. Your computer will automatically check spelling for you.

Finally, a word about Christ. Instead of parroting brainwashed Amway distributors on the topic of "Christ in your heart," why don't you try directly helping the poor, the sick, the forgotten in our society? If you do, you'll have earned my respect for the first time during your otherwise shameful (or should I say shameless?) life.

Here's to our Post-Bush Century.

Sincerely, Bloomsday

Saturday, December 20, 2008

I ring the buzzer of the 19th century Victorian mansion across the alley from the church. A pleasant female voice allows me in. I cross the threshold. “I’m here to see Tim?” I ask.
“Oh, one moment.” The sister turns and murmurs into an intercom, “Father Tim, you have a visitor.” A pause. “He’ll be with you in a moment.”
I gravitate to the veranda. “I’ll be outside, admiring the veranda, if you don’t mind.”
She looks at me in my Atticus suspenders, slightly puzzled. “O.K.”
The door closes behind me and I am on a wide, deep corridor that wraps around the outside of the house. Across the street is Lincoln Park, a civil war encampment turned urban oasis with chess tables. Bums and whores congregate for the daily lunches supplied by the church. I’m pinching the paw of a disinterested cat when Father Tim comes out. He looks more like a Manson worshipper than a priest. I hide my surprise at his dirty Michael Landon mane, his bony, leathery face, and his floods as I stick out my hand to shake his. “Ulysses Bloomsday.”
“Theresa told me you were someone who could answer some questions I have about civil disobedience. Would you like to head to the park and talk?” I agree and we cross the street to the park and find a bench.
“Some friends of mine have this idea to protest the war and the administration. Labor Day. The air show, downtown. I’ll be talking with them about this in days to come and I hoped you could give some advice.”
“First of all, I can’t advise anyone to break the law. I can only advise you of the consequences of your decisions. What to expect. What your rights are. Possibilities and probabilities and potentialities.”
“That sounds rather mathy,” says Father Tim.
“Mathy?” I say.
“Possibilities, probabilities, potentialities: aren’t those calculus terms?”
“Oh, yes. There is a calculus to what I do. There is science in the law. But it is a heretical science, Father. Some call it alchemy.”
“Are you confessing that you are a heretic, Mr. Bloomsday?”
“I don’t have to confess, Father. I am in a state of perpetual absolution.”
“Oh, so you are a heretic.” A broad smile crossed his face.
“I’d rather laugh with the sinners than cry with the saints, Father.” I went on to advise the priest on the laws of civil disobedience, trespass, free speech, aggravated disorderly conduct, resisting arrest, as well as procedural matters relating to court appearances, pleas and bond. “Ultimately, whenever one of your friends winds up in court answering to a charge, I’ll know about it and I’ll be there.”
Father Tim studies me. He hesitates before asking, “Are all these stories about you true, Mr. Bloomsday? There seems to be quite a mythology about you.”
The church bells signal noon. As the dregs shuffle through the summer effluvium towards their free meals, I can’t seem to muster a response.

Friday, December 5, 2008

Rust Belt Epiphany

The pacifists from Pittsburg came into town one day
To stop the bloodshed overseas in their own peaceful way.

They organized a protest to speak their mind on war
on carnage, orphans, amputees and blood and guts and gore.

They set upon the capitol with all its frauds inside
And chanted chants and prayed their prayers that they had memorized.

"Let's burn the king in effigy," one asked, "or would that break the rules?"
Debate ensued, consensus reached: Such ploys were angry tools.

"But are we not so angry that we might not bend tradition
And show these fucks how pissed we are with fiery erudition?"

"No, kind sir. Remember Prague and its defenestrations.
We cannot have an angry mob at peaceful demonstrations.

For, if we are true pacifists, we cannot urge to burn.
Instead, we must, with rhyme and wit, seize willingness to learn.

Humanity has had enough of blood and guts and gore.
To string him up and burn him is no peaceful metaphor.

About burnt books, burnt oil, burned lives, is what folks need to hear
So peace will rain upon the land and soak the war horse gear.

The rain will rust machinery and lubricate discussions
Of profiteers and puppets and their global repercussions."

And so the clan from Pittsburg came into town that day
To stop the bloodshed overseas in their own peaceful way.

The rain came down so hard and fast it caught them by surprise.
It flooded streets with turbid streams before their very eyes.

And when the deluge ceased, the People danced on muddy ground
For word had spread: the king was dead and all his rats had drowned.