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Aileen Cannon Is Stiff-Arming the Press

I’m going to write up what really happened yesterday — as predicted, virtually all outlets I’ve seen simply quoted what Aileen Cannon claimed she had done, rather than describing what she had actually done.

Before I do that, I want to note that Judge Cannon is stiff-arming the same press that is reporting so credulously on her interventions.

Back on August 31, the press coalition that does such things moved to intervene in the case. Most of it was the same boilerplate the coalition uses for all such motions, but they did cite both sides in the matter calling for transparency.

Former President Trump himself has called for greater transparency. See, e.g., ECF No. 1, at pp. 2-3 (noting personal desire for more openness). The Government has stated likewise. See, e.g., ECF No. 1, at pp. 9-10 (detailing Attorney General Merrick Garland’s statements on why the Government sought to unseal certain search warrant records); see also ECF No. 48, at p. 2 n.1 (noting that the Government is “prepared . . . to unseal the more detailed receipt”).

They described that the government did not oppose the motion and Trump took no position on it. They asked to be heard on the matter on September 1.

The next day, Judge Cannon released the detailed inventory the government had submitted (it has since submitted a slightly revised inventory, but didn’t address the press access.

After the government moved to unseal the privilege status report on September 8, the press coalition submitted their own request for unsealing.

Then, after two weeks had elapsed since their initial motion, the press coalition tried again. They pointed out that if anyone wanted to oppose their intervention, the two week deadline to do so had expired. And they noted that the privilege review status report still remained under seal.

The News Media further note that certain records remain under seal in this matter, namely those docketed at ECF No. 40. The News Media understand ECF No. 40 to contain the Government’s submission regarding its Privilege Review Team’s Notice of Status of the Filter Process. The Government filed a motion to unseal that document (less Exhibits A and B to that filing) on September 8, 2022. See ECF No. 71. The News Media filed a further motion to unseal that court record on September 9, 2022. See ECF No. 79.

But Judge Cannon has simply ignored those requests.

There’s an obvious reason she did so: In her September 5 order first appointing a Special Master, she made claims based on that sealed status report. The claims are not only probably false, but she effectively double counted the potentially privileged materials as both potentially privileged and personal. That was the means by which she found that Trump had a possessory interest in the items seized on August 8. So she likely can’t allow that status report to be unsealed, because if it were, her deceit would become evident.

Ironically (or perhaps cynically), Cannon cited the importance of the perception of fairness in that same ruling relying on the status report she won’t let the press see.

A commitment to the appearance of fairness is critical, now more than ever.

[snip]

As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 (“[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system.” (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))).

[snip]

“[E]fficient criminal investigations are certainly desirable,” In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust.

But she only maintains this perception by stiff-arming the press and hiding that status report.

Thus far, she has gotten away with it. Not only isn’t the press calling her out for stiff-arming them, but they continue to quote what she says rather than reporting on what she does.

Update, 10/4: After she ordered the status report unsealed, Judge Cannon granted the motion to intervene prospectively.

Donnie The Wimp And His Impeachment Coffin

There was a pretty astounding report by CNN early this morning depicting the, and I am being kind here, disarray in Trump’s impeachment defense. The gist is this:

Butch Bowers and Deborah Barbier, who were expected to be two of the lead attorneys, are no longer on the team. A source familiar with the changes said it was a mutual decision for both to leave the legal team. As the lead attorney, Bowers assembled the team.
Josh Howard, a North Carolina attorney who was recently added to the team, has also left, according to another source familiar with the changes. Johnny Gasser and Greg Harris, from South Carolina, are no longer involved with the case, either.

No other attorneys have announced they are working on Trump’s impeachment defense.

A person familiar with the departures told CNN that Trump wanted the attorneys to argue there was mass election fraud and that the election was stolen from him rather than focus on the legality of convicting a president after he’s left office. Trump was not receptive to the discussions about how they should proceed in that regard.

That sounds ominous!

But here is the part that even more stuck out to me:

“As the lead attorney, Bowers assembled the team.”

and, most notably,

“The attorneys had not yet been paid any advance fees and a letter of intent was never signed.”

Lol, for the uninitiated, that means Trump never paid a dime as to a retainer, and never signed a fee agreement. That not only is inappropriate, in most jurisdictions it is, in and of itself, unethical. Even when the lawyer is agreeing to do work pro bono, there is a retainer agreement. Always, because real lawyers don’t blithely hang their asses out on the line without specified parameters. That is just how it is.

As I said on Twitter:

A rather large discussion ensued. Go look if you so desire, but I will stand by that for now. No, I do not really know, but it almost makes sense.

Trump is not cash rich. Expending collected campaign funds to perpetrate a fraudulent defense might be a dicey proposition. And no competent attorneys are lining up to pitch that. Trump may literally be down to Rudy and Jenna Ellis. Dershowitz and Jon Turley are squirrely as shit, but even they may not be that stupid.

So, where art thou go Donald?

The Assange Indictment and The Rule of Specialty

Alright, as most of you have discovered, Julian Assange had his asylum status revoked by Ecuador, and officers of the Met (and presumably Scotland Yard too) were allowed into the Ecuadoran Embassy in London to effectuate arrest of Assange. Don’t be fooled by the breathless cable news coverage, the primary arrest warrant was the UK one from Assange’s 2012 jumping of bail conditions, not the extradition request by the US. In short, Assange would still be in custody right now irrespective of the US extradition request.

To flesh out the rest of Assange’s status, to the extent we currently know it, I will pilfer some of the reportage of the excellent Daniel Sandford of the BBC. Assange was presented immediately to Court One at the Westminster Magistrate’s Court where it was made clear that there were two warrants he was arrested on, not just the US request. Assange pled not guilty. He was NOT ordered to present evidence on his failure to surrender (which is appropriate if he declines). The judge presiding, Michael Snow nevertheless, and quite properly, found Assange guilty of the bail offense. Assange will appear in the higher level Southwark Crown Court for sentencing on the bail offense at a future date not yet specified. He will be back in the Westminster Magistrate’s Court, as of now by video link from his detention facility, on May 2nd regarding the extradition matter.

With that background out of the way, let’s look at the more significant US extradition case. First off, here is the EDVA indictment that was unsealed this morning. As you can see, it is for a single count of computer hacking conspiracy. I think most people expected all kinds of different counts, up to and including espionage crimes. Those were not included, nor were the issues from the Vault 7 case, that easily could have been indicted on outside of any real First Amendment issues.

So, while the indictment could have encompassed far many more charges and issues, it does not and is just this one count.

Why is that important?

Because legal commentators like Jeff Toobin on CNN are having a field day noting that there may be more charges forthcoming. And Shimon Prokupecz of CNN reports DOJ is indeed going to seek “additional charges” against Assange. And why is that important? Because of the Rule of Specialty.

I noted this from almost the first second on Twitter, but few other than Ken White (aka Popehat) seem to have caught on to how this doctrine will come into play in the case of Assange. It is a real issue, though we do not know how it will play out at this early stage of the extradition process.

The Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses. Long ago and far away I argued this successfully, but that was in relation to the treaty between the US and Mexico. The Assange case obviously involves a different treaty, the US/UK Extradition treaty of 2003.

So, what does the United States of America and the United Kingdom of Great Britain and Northern Ireland Treaty of 2003 provide? Well, that is contained in Article 18, which reads as follows:

Rule of Specialty

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:
(a) any offense for which extradition was granted, or a differently denominated offense based on the same facts as the offense on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;
(b) any offense committed after the extradition of the person; or
(c) any offense for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person’s detention, trial, or punishment. For the purpose ofthis subparagraph:
(i) the executive authority of the Requested State may require the submission of the documentation called for in Article 8; and
(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request for consent is being processed.

2. A person extradited under this Treaty may not be the subject of onward extradition or surrender for any offense committed prior to extradition to the Requesting State unless the Requested State consents.
3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of the person to a third State, if the person:
(a) leaves the territory ofthe Requesting State after extradition and voluntarily returns to it; or
(b) does not leave the territory ofthe Requesting State within 20 days of the day on which that person is free to leave.
4. I f the person sought waives extradition pursuant to Article 17, the specialty provisions in this Article shall not apply.

It is early, but Assange has specifically NOT waived extradition, and I do not expect that will change. In fact, he would be nuts to waive it. But look out for the US requesting the UK to waive the issue pursuant to Article 18(1)(c). I have no idea how the UK would treat such a request (nor whether it may have already been made). But give the UK credit, they take extradition conditions seriously and will not extradite where the death penalty is in play.

The death penalty could be an issue were Assange to be subsequently charged under 18 USC §794 (Espionage Act), which reads:

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

Now, frankly, I think the US, through the DOJ, would have no problem whatsoever stipulating that the death penalty is off the table for Assange. It is almost a given.

The real question is what becomes of the Assange case in light of the Rule of Specialty. Suppose any superseding indictment does not go into charges outside of the “computer offenses” specified in the current indictment, but seeks to add additional computer offenses in an attempt to increase the sentencing range? Does that violate the spirit of the Rule of Specialty?

There is a lot we simply do not know yet. But this doctrine, and how the US proceeds in light of it, needs to be watched closely as the Assange extradition matter proceeds, both in the UK, and once he is remanded to US custody.

Plus-Delta Analysis: CNN’s New Political Hire Isgur Flores

[NB: Check the byline. /~Rayne]

Let’s make like a cable news management team and assess CNN’s hiring of former GOP operative Sarah Isgur Flores as a Political Editor ahead of the 2020 election using a plus-delta analysis.

Plus:

Education background includes history, political science, and law; she has a JD from Harvard. History and law degree may be very important should the current administration face mounting investigations and the possibility of impeachment.

With a decade of experience in political campaigns, Flores should understand well how media works campaign cycle from a campaign’s perspective.

Her hiring provides assurance to conservatives that CNN will not exercise a liberal bias covering 2020 campaigns.

Flores’ presence as an openly pro-GOP editor may discourage further attacks on CNN after this past year’s bomb threats.

A woman editor may offer some diversity in perspective as 2020’s field of candidates already includes more women than ever.

Delta:

Flores has zero journalism experience yet bypasses political analyst position for political editor.

Worked exclusively for Republican Party candidates, revealing a partiality toward a particular political ideology.

She has been extremely open about her conservative ideology which may be off-putting to a moderate audience, ex. her strident anti-choice beliefs, evident in her Twitter feed, may offend women.

Worked for the Trump administration as Jeff Sessions’ spokesperson, revealing a willingness to work for problematic Republicans.

Made a show of loyalty before accepting roll with DOJ by visiting Trump to assure him she was “on board with his agenda and would be honored to serve him.” Not clear when this loyalty and service ends.

It’s not clear whether a non-disclosure agreement was signed by Flores muzzling her from speaking about the Trump administration.

It’s not clear if her loyalties and ideology pose a threat to confidential and anonymous sources CNN’s reporters have relied upon while covering the Trump administration.

MSNBC had also been approached by Flores; she tried to sell them on her inside knowledge of the Special Counsel’s investigation. CNN says she won’t use this knowledge in her role but it’s difficult to see how she can be firewalled off from matters related to the investigation if they affect Republicans in Congress or running in 2020.

Her ambitions may both outstrip her current role before 2020, stepping on her immediate boss’s toes (David Chalian) and they may interfere with CNN’s intentions:

…“She had a detailed idea of what she wanted to do,” someone with knowledge of the discussions told me. “She wanted to do something on-air combined with some sort of quasi-management, behind-the-scenes planning kind of work. I think she looked at Dave Chalian and said, I wanna do that.”…(source)

CNN staff are not happy with this move (though Brian Stelter puts an awfully good face on it).

While Flores’ hiring could be likened to CNN’s hiring of Corey Lewandowski and Jeffrey Lord in terms of balance, the leap to an editorial position combined with strong ideology makes CNN look partisan — lacking neutrality in the public’s perception.

One more critically important factor gives pause about Flores’ new gig: CNN is owned by Warner Media LLC, which in turn is owned by AT&T. Is hiring Flores an attempt to shape policy to benefit ultimate parent AT&T, heading off pressure from the public for Net Neutrality and any changes in regulations affecting telecommunications and internet service providers?

This just doesn’t look good to me, especially after so many good, seasoned news media people without baggage like Flores’ were cut by outlets over the last two weeks.

This is an open thread.

The Mouse That Roared, The Bigotry Roseanne Perpetrated and Ignorant Racism Of Trump

Tonight, the ABC network, obviously owned and controlled by the Disney Mouse, has fired Roseanne Barr. It is a fine step. The better question is why they ever rebooted her ignorant racist act. The answer is, like the relentless quest of the New York Times to connect with “real America Trump Country voters”, they were more concerned about selling shit and getting eyeballs than they were about morality and truth.

Yeah, it is that simple.

ABC knew exactly what kind of ignorant racist bigot Roseanne Barr was, but they rolled the dice on the crap table of television because they cravenly thought there was a market for low brow bigotry in the age of Donald Trump.

For a bit, it seemed they were right. Heck, maybe they still are, maybe this country has fallen that far.

But when the pet star of ABC and Donald Trump, Roseanne, compared an accomplished woman like Valerie Jarrett to things I will not even cite here, even the Disney Mouse of ABC canceled her on the spot. How heroic.

It is fine to harsh on Roseanne. She has earned it for a long time. A long enough time that ABC and the oh so socially responsible “Disney Mouse” completely understood and, still, signed up to renew the platform for gross bigotry that Roseanne Barr represented in a heartbeat when they though they could catch the wave of Trumpian bigotry and racism.

It was like candy for the media monsters, much like the acceptance of the New York Times and other major media, although to a less obviously crass extent. Make no mistake though, it is all of the same cloth of go along to get along “let’s get maximum eyeballs” theory by major media that feeds the message fed to the United States and world. They know better, and they owe better. And, yes, I am talking to you Maggie Haberman. She is certainly not the only one, just a common and un-rehabiltated symbol at this point. But Mag Habs and the Times “political team” have come to this point the old fashioned way: They have earned it.

But, hey, the Times are not alone, CNN is similarly still sending out Salena Zito to interact with revanchist bigotry in “real America” like that bunk should be celebrated and normalized, not scorned and attempted to be informed.

This country should not celebrate ignorance, bigotry and stupidity. We should fight and overcome that.

ABC and the Disney Mouse may be unconscionably late to this game as to the attempt to ride the ignorance and bigotry of Roseanne Barr, but maybe there is a better day ahead.

Today, Howard Schultz and Starbucks took the step back to rethink and do better. ABC and the Mouse made a late, but needed step.

One step at a time. It is better than the original knee jerk reaction of the ABC network to piggyback on the bigotry of Roseanne Barr.

Belated Update: The title to this post was not meant just to be descriptive of the Disney action as to Roseanne, it was also an homage to the thoroughly wonderful classic movie “The Mouse That Roared”. If you have not seen it, you should. I think it is occasionally on TCM, but not sure. It is a wonderfully subtle early tour de force by the great Peter Sellers.

Can’t Stop/Won’t Stop: CNN Has A New Racist Bigot Apologist

You may remember that CNN recently terminated their go to racist bigot Trumpian apologist asshole, Jeffrey Lord.

As Politico succinctly put it:

CNN on Thursday fired contributor and staunch Trump supporter Jeffrey Lord after he tweeted a Nazi salute.

Well, yes. That is literally the least you could say about Jeff Lord’s “contributions” to CNN. He was, from the start, an unnecessary, and in the face of competent journalism and reportage, complete plant by Jeff Zucker into the CNN family and reportage to do NOTHING but assuage the idiot extremist right wing racist assholes who were watching FoxNews to start with. In short it was insane and counterproductive programming to cater to ignorant racist people that hated, and were not watching, CNN to start with.

The presence of Jeff Lord on CNN was an affront on common intelligence, good journalism and root morality. But there he was. Until Lord actually displayed his inner Trumpian Nazism that was clear under the veneer from moment one, and was the exact reason Zucker and CNN hired and paid the jerk to start with. Jeff Lord was exactly who Zucker and CNN bought and paid for from moment one. He was exactly what they cravenly wanted.

So, did Jeff Zucker, and the worthy geniuses at CNN, learn any lessons by having promoted a clear cut immoral asshole racist Nazi like Lord?

Nope. They have simply found and cultivated a new one.

Today’s version (and seen on CNN!) is Trumpalo Michael Caputo, who had these gems to say on CNN’s The State of the Union show today:

“Our Department of Justice under Obama was the most political Department of Justice in modern times”

Well Mike, that is not quite right. In fact, that would have been the DOJ under George Bush, who your boy Trump is making look good at warp speed. Here is thanks to Senator Sheldon Whitehouse back in 2007, is a graph of political appointee communication of the Clinton White House with the Department of Justice:

Here is, again from Senator Whitehouse, an identical chart of the contacts of the contacts from the Bush/Cheney White House:

Ooof, if you want to talk about root politicization of the DOJ, that is pretty telling, even without going into the Monica Goodling/Karl Rove nonsense.

Caputo goes on to belligerently defend Trump

“…against all this talk of racism”

So, eh, no. For Caputo, in the face of what Trump is doing vis a vis the DOJ, whether firing the Director of the FBI for not covering his ass or asking his Attorney General to kill an investigation of his largest racist supporter Arpaio, is just another hired liar.

But having such an immoral liar to balance actual truth and fair reportage with absolute flat earth level racism horse manure from Trumpland, is what Jeff Zucker and CNN demands. They simply cannot fathom presenting the former without salting it with the latter.

Ted Turner must be beside himself somewhere in Montana. The demand of media, in this case CNN, to “both sides” even in the face of grossly immoral and unconscionable racism and bigotry, is insane. It needs to stop. There is no need to put on an apologist like Michael Caputo just to say you did so. It added nothing, but support for rank ignorance and bigotry. That is not what America’s media should be about.

The Cillizza Bag

Is there a bigger douche in America, much less its media, than Chris?

Everybody hates Chris

Marissa Alexander, Jeff Toobin and Blackledge

Screen Shot 2015-01-28 at 9.15.09 PMBy now, you probably know the story of Marissa Alexander, a charming young woman who tried to defend herself and her children from a criminally abusive ex in Florida. Another soul outrageously and scandalously prosecuted by the, by all appearances, morally and ethically bereft Angela Corey, the state prosecutor in Florida’s 4th Judicial Circuit. Marissa was, finally, released from jail today pursuant to a forced plea agreement. Via Reuters:

A Florida woman who says she fired a warning shot at her abusive husband was released from a Jacksonville jail on Tuesday under a plea deal that capped her sentence to the three years she had already served.

Marissa Alexander, 34, was initially sentenced to 20 years in prison in 2012 but her conviction was later overturned. She faced another trial on charges that could have put her behind bars for 60 years before she agreed to a plea deal in November.
Her case helped to inspire a new state law permitting warning shots in some circumstances.

Leaving the courthouse, Alexander cried as she thanked her supporters, sharing plans to continue her education in order to work as a paralegal.

Ms. Alexander is indeed out of incarceration and home tonight, though she will still, pursuant to the plea she entered, have to serve two years on home confinement, starting from this date going forward. She appeared on Anderson Cooper’s “AC 360” tonight on CNN and looked simply radiant. I don’t normally get into red carpet like descriptions of people in legal cases I comment on, but in this case it really seems appropriate. She is quite a woman, and it is impossible not to be charmed by her, and wish her the very best.

But what I really come to write about is the commentary of Jeffrey Toobin, who was on after Marissa’s appearance to discuss the legal considerations with Cooper. Toobin was strident, unflinching, and spot on in what he said. So much so I nearly stood up and cheered. Instead, I made a transcript:

AC: Why would Angela Corey suddenly say [to Marissa Alexander] okay, if we are going to go to trial you face 60 years, we are going to go for 60 years in jail instead of the 20 years sentence?

JT: Because Angela Corey incompetent, because she is vicious and because she is a disgrace to prosecutors around the country”

AC: Really?

JT: I mean this is one of the most appalling examples of prosecutorial abuse I have ever seen. The harassment, the endless pursuit of this woman [Alexander] is just a blot on Florida, and our whole country.

AC: What makes it particularly, and why it captures so many people’s focus is during the George Zimmerman trial where obviously “stand your ground” was an issue, was raised, it seems it is a completely different interpretation of stand your ground.

JT: Well, that’s right. And I don’t know motive. I can’t tell you why Angela Corey pursued her so obsessively, and I…thinks it’s important to…all I know is what she did. All I know is what the facts are. The facts are that this woman had a very legitimate defense, this guy [Alexander’s ex] was a monster. He had a history of abuse of women, and that she [Alexander] would be pursued this way is just sickening.

AC: It is interesting, because the statute was amended subsequently basically to allow for warning shots and you wouldn’t necessarily be prosecuted for that, but it was not retroactive.

JT: Fortunately, this case has prompted a lot of outrage in Florida and around the country and that change in the law is one effect of this that was too late for her, too late to help her.

AC: It has to be such a gut wrenching decision, to decide to take a plea, to serve another 65 days in jail and then you get out, you have a record then, and you are under house arrest for another two years…or, maintain you innocence and risk another 60 years.

JT: It is a heartbreaking dilemma, but one thing tipped this case. You know, Angela Corey was not even negotiating, as far as I can tell, in good faith, but her lawyers, including Faith Gay of Quinn Emanuel, they were working pro bono on this case, they got a ruling from the trial judge that they could introduce evidence of all the abuse that Gray had imposed on other women…so that’s the trial setting that was going to happen.

Angela Corey is incompetent, vicious and a disgrace. Thank you Mr. Toobin, I could not possibly have said it better. As perfect as the description is, it may still be an understatement.

But, how did this come to be? How did Marissa Alexander face 20 years, get convicted, win an appeal, and come out of the appellate win only to face 60 years if she lost the retrial? Well, that is a subject that goes deeper than Jeff Toobin could really get into in a basic 3-4 minute cable TV hit.

Normally, a defendant such as Marissa Alexander might expect to be protected from such an escalation of sentence by the state’s attorney through the edicts of a case known as Blackledge v. Perry.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to be impermissibly vindictive.

A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a [new trial] in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources. . . . And, if the prosecutor has the means readily at hand to discourage such appeals — by “upping the ante” through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a [new] trial.

. . . A person convicted of an offense is entitled to pursue his statutory right to a trial . . ., without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

So, Angela Corey impermissibly “upped the ante”, in violation of Blackledge, on Marissa Alexander when she sought 60 years imprisonment on Alexander upon retrial even though the sentence from the first trial was “only” 20 years, right? Unfortunately no.

You see, Corey did not up the number or nature of charges when charging the retrial, she alleged the same three counts, it is just that the law in Florida had changed, and Corey cravenly took advantage of it to unconscionably bludgeon Marissa Alexander.

Alexander, 33, was previously convicted in 2012 of three counts of aggravated assault with a deadly weapon and was sentenced to 20 years in prison by Circuit Judge James Daniel under the state’s 10-20-life law. Daniel actually imposed three separate 20-year sentences on Alexander but ordered that they be served concurrently, which meant Alexander would get out in 20 years.

The conviction was thrown out after the 1st District Court of Appeal in Tallahassee ruled that Daniel made a mistake in shifting the burden to Alexander to prove she was acting in self-defense. During jury instructions, Daniel said she must prove beyond a reasonable doubt that she was battered by her husband.
….
But Assistant State Attorney Richard Mantei, the lead prosecutor in the case, told the Times-Union his office was simply following the sentencing laws of the state of Florida.

The same appeals court that ordered Alexander’s retrial separately ruled last year that when a defendant is convicted of multiple counts under 10-20-life that arose from the same crime, judges must make the sentences consecutive and are not allowed to impose them concurrently.

The law has not changed since Alexander was sentenced in 2012, but courts throughout the state have been struggling to interpret what the Legislature meant when it passed sentencing laws regarding 10-20-life.

The Alexander case inspired the so-called “warning-shot” bill that will be part of the Florida legislative session that begins Tuesday. The proposal, which is expected to pass, would create an exception to the 10-20-life law and prohibit those who fire a warning shot from getting 20 years in prison.

So, it is, unfortunately, not really within the ambit of Blackledge. Which leaves us back where we started. Angela Corey. Corey was ridiculously aggressive in not affording Alexander, a victim herself, the benefit of the doubt on self defense, including the much misunderstood, and misdescribed, “stand your ground” provision.

With no protection from Blackledge and its progeny, and the curious ability of Marissa Alexander to be subject to the new “consecutive” provision in Florida’s 10-20-life gun laws, but not the new provisions on warning shots in stand your ground cases, this was the position Marissa Alexander found herself. Take a scandalous plea, the only one being offered by the contemptible Circuit Attorney Corey, or risk her children never seeing her out of custody in her natural lifetime. After seeing what Corey was willing to do, how could Alexander not take the deal?

But, make no mistake, the only reason that this situation got to where it did is out of the sheer evil avarice of a woman not fit to represent the people of Florida, nor the justice system in America. Angela Corey is a walking talking picture of injustice. Thanks again to Jeff Toobin for saying that so clearly. And, best wishes and godspeed to Marissa Alexander.

A Note Of Praise For Jake Tapper

photoYammering on the internet is not hard work, in fact it is blindingly (and sometimes maddeningly when it is pointed in your direction) easy. Getting heard, and functionally interacting in a fashion that can contribute to the real focus and discussion, however, is hard. For my part, I often carp enough about the failings of big media that it is only right to give praise where due.

Today credit is due to CNN’s Jake Tapper. Because he cares.

Two nights ago, rightly or wrongly …. but I think rightly … I laid into CNN for their overbearing focus on repetitive, and somewhat mindless, continuing drivel on celebrity. That was, of course, in relation to Robin Williams’ death. A noteworthy, sad, and tragic event for sure, but there was only so much news, the rest was pure Entertainment Tonight like pathetic drivel.

So I went after CNN, and I tacked Jake Tapper’s twitter handle on the end. I did so not because I thought he was the prime offender producing the overall CNN news product, but because I knew, from prior interaction, that Jake actually gives a damn and and is a contact point at CNN who would care. And maybe…maybe…be a change point. That was both fair, and unfair to him personally, at the same time.

I am pretty sure both CNN and Jake were bombarded by by an untold number of missives of the same variety. I don’t how how other inflection points at CNN dealt with what was surely a lot of feedback, but the fact Mr. Tapper took the time to take umbrage, and discuss…and think…seems significant and admirable to me. And I admire that.

I thought about writing this post long before I saw the following, but I was off with clients and court appearances, and could have easily shined it on, as I do with so many posts I want to write but don’t get to.

Until I saw something from Mr. Jake Tapper today that was just awesome.

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Well, yes!

But then, not long later, came this:

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Well, to be sure, this is the stuff even a critic of journalism can love and applaud. You know why? Because not only is solidarity with journalists under grand jury and governmental oppression admirable (I have some experience in GJ targeting), it is the only, and only proper, thing that can be done.

There are not many out there to be so applauded. Maybe tomorrow there will be an issue, and moment of difference, on a different case. So it goes, and so be it.

But, now, James Risen stands exposed and on his own. As a man, and as a journalist, Tapper stood up and gave public square to his voice. Good on him.

Tonight, I am glad Jake Tapper is out there and is willing to engage. Tonight he did one hell of a report from Ferguson Missouri. Even if a big part was consumed by press conference feed. But, before and after, he made his voice clear. That is not exactly a common thing. It is to be commended.

Give the man credit, he was there, and he cares. And I will buy him a drink.

Rehman: Drones in Pakistan “Radicalize Footsoldiers, Tribes and Entire Villages”

I had missed Christiane Amanpour’s Monday evening interview with Pakistan’s Ambassador Sherry Rehman, but an article in today’s Express Tribune alerted me to it. Video from the interview is embedded above. Putting aside the ridiculous crap added by CNN producers (I’m assuming Amanpour has better journalistic sense than to clutter news with this crap) alluding to “the marriage from hell” and the god-awful Elton John reference, the key revelation in the interview is that Rehman maintains that even though the US apologized and Pakistan reopened supply routes, that does not mean that Pakistan has agreed to more drone strikes. Further, Rehman emphasized how the strikes produce more insurgents.

From the Express Tribune article:

In an exclusive interview with CNN’s Christiane Amanpour, Ambassador Rehman said America’s drone war “radicalises foot soldiers, tribes and entire villages in our region. And what we see, really, is that increasingly Pakistan is feared as a predatory footprint.”

In response to a question, she denied the assertions that apology over the Salala incident meant that Pakistan had allowed the drone programme to continue. However, she said that the apology over the incident that killed 24 Pakistani soldiers has “opened the space for an opportunity where we can have constructive conversations that might be to the satisfaction of both sides. Right now, we have not given a go-ahead at all”.

But she categorically emphasised that Pakistan’s concerns over the drone strikes could not be ‘brushed aside’.

Ambassador Rehman said that CIA’s covert drone war ‘tests’ the relationship between Pakistan and the US at every juncture. “We honestly feel that there are better ways of eliminating al Qaeda now, which can be done with our help. And we have been doing that consistently. We’re the heavy lifters in this relationship.”

CNN chose not to include in the video this bit of the interview which the Express Tribune found significant:

When questioned about whether Pakistan accepted the accounting of how the Obama administration identified militants, Rehman said it was worrisome “because this leads to what you call signature strikes, if I’m not mistaken, where a certain level of suspected activity generates or motivates the trigger for – I really don’t know what motivates the trigger for X level or Y level of drone strikes.”

I guess CNN doesn’t want us worrying about how the Obama administration might be killing people who don’t deserve it. That would upset the bullshit story they are trying to reinforce. They probably should add a note warning us not to read Glenn Greenwald on this question, either.

At least Rehman understands that when you take the signature strike concept to its extreme and send in follow-on strikes to hit people who are digging through the rubble of the first strike in a search for possible survivors, you are going to radicalize those most closely affected by these actions: the tribes and villages who lose members in these horrific strikes. The CIA’s choice to kill in this manner is clearly assuring the CIA of an even larger group of targets in the future, because for each victim killed in this manner, many new insurgents take up arms.