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From the Los Angeles Times

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Supreme Court shields prosecutors in wrongful convictions

Though new DNA testing has shown hundreds of convicts to be innocent, the court has protected prosecutors from lawsuits and balked at letting prisoners reopen cases.

by David G. Savage, Washington Bureau

April 3, 2011

Reporting from Washington

One innocent man, from Arizona, was sent back to prison for raping a child when the Supreme Court ruled he had no right to evidence that would later set him free.

Another innocent man, from Louisiana, was convicted of murder and came within weeks of being executed because prosecutors had hidden a blood test that later freed him.

The two men were linked at the Supreme Court last week by Justice Antonin Scalia, who argued that criminal defendants have no right to "potentially useful evidence" that "might" show they were innocent.

Since the 1990s, the advent of DNA evidence has swept across the American criminal justice system and revealed that hundreds of convicted prisoners were innocent. Yet, throughout that time, the Supreme Court has shielded prosecutors from claims that they hid evidence that could have revealed the truth and has been reluctant to give prisoners a right to reopen old cases.

By a 5-4 vote Tuesday, the high court threw out a jury verdict won by John Thompson, the Louisiana man who had sued the New Orleans district attorney after he spent 14 years on death row for crimes he did not commit. In the past, the court has shielded individual prosecutors from being sued, even if they deliberately framed an innocent person. Last week's decision protects a district attorney's office from being sued for a series of errors that sent an innocent man to prison.

Advocates for the wrongly convicted denounced the decision. Prosecutors have "enormous power over all of our lives," said Keith Findley, president of the Innocence Network, yet "no other profession is shielded from this complete lack of accountability."

In Thompson's case, at least four prosecutors knew of the blood test, eyewitness reports and other evidence that, once revealed, showed they had charged the wrong man.

"When this kind of conduct happens and it goes unpunished, it sends a devastating message throughout the system," said Sherrilyn Ifill, a University of Maryland law professor. "It means more of these incidents will happen."

Lawyers who represented the wrongly convicted also said they were shocked that Scalia would cite the 1988 case of Arizona vs. Larry Youngblood to bolster his opinion. More than a decade ago, after Scalia and the other justices sent Youngblood back to prison, new DNA tests revealed he was innocent.

Carol Wittels, the Tucson lawyer who fought to free Youngblood, said she found it "astounding" that the court would still cite the case as a precedent. "It was a horrible decision then, and I can't believe they are still citing it, since so many people have been cleared with DNA evidence since then," Wittels said in a telephone interview.

Justice Clarence Thomas delivered last week's decision reversing the $14-million jury verdict for Thompson. Scalia wrote a separate opinion citing the Youngblood case, which came to the court in Scalia's second year on the bench.

The case began when a young boy was abducted outside a church carnival and brutally raped. He said his assailant was a black man with a bad right eye. Youngblood was a black man from the Tucson area who had a bad left eye. The boy picked him from a photo lineup.

But in a crucial mistake, the police failed to refrigerate the boy's clothing and several swabs. Though Youngblood protested his innocence, forensic testing in the early 1980s could not determine whether he was or was not the perpetrator.

After two trials, he was convicted, but a state appeals court ordered him freed because the police had "permitted the destruction of the evidence" he needed to prove he was not guilty.

But the Supreme Court ruled the police and prosecutors had no duty to "preserve potentially useful evidence" for a defendant. The vote was 6 to 3, with Scalia in the majority.

Youngblood was sent back to prison in 1993, served his full term until 1998, and was later arrested because he had failed to register as a sex offender.

In 2000, the Tucson Police Department agreed to conduct DNA tests that were more sophisticated than what had been available earlier. They pointed to the true perpetrator, Walter Cruise, a black man with a bad right eye who was then in a Texas prison serving time for two sex assaults against children. He pleaded guilty to the Arizona rape.

In last week's opinion, Scalia cited the Youngblood case in arguing that prosecutors are not required to offer all the evidence that might free a defendant. "We have decided a case that appears to say just the opposite," he wrote. "In Arizona v. Youngblood, we held that unless a criminal defendant can show bad faith on the part of the police," the defendant does not have a right to obtain all "potentially useful evidence."

There is no duty under the Constitution for prosecutors to turn over test results "which might have exonerated the defendant," Scalia said, quoting the Youngblood decision. Only Justice Samuel A. Alito Jr. joined his separate opinion.

University of Virginia law professor Brandon Garrett, who has studied hundreds of cases of wrongly convicted people, said he found it astonishing that Scalia would assert that prosecutors were allowed to conceal the results of the lab test.

"That's a ridiculous suggestion. They knew the lab results were powerful evidence that could be exculpatory," said Garrett, meaning it could prove innocence. "It's ironic he would say such a thing by citing the Youngblood case, where the defendant was innocent."

Youngblood died in 2007 without receiving any compensation for his years in prison, Wittels said. "I think he would be outraged to know they are still citing his case," she said.

http://www.latimes.com/news/nationworld/nation/la-na-court-innocence-20110403,0,4330097,print.story

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From the New York Times

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Koran-Burning Pastor Unrepentant in Face of Furor

GAINESVILLE, Fla. — His church's membership is down to just a few of the faithful. He is basically broke. Some of his neighbors wish him ill. And his head, he said, carries a bounty.

Yet Terry Jones, the pastor who organized a mock trial that ended with the burning of a Koran and led to violence in Afghanistan, remained unrepentant on Saturday. He said that he was “saddened” and “moved” by the deaths, but that given the chance he would do it all over again.

“It was intended to stir the pot; if you don't shake the boat, everyone will stay in their complacency,” Mr. Jones said in an interview at his office in the Dove World Outreach Center. “Emotionally, it's not all that easy. People have tried to make us responsible for the people who are killed. It's unfair and somewhat damaging.”

Violent protests against the burning continued on Saturday in Kandahar, Afghanistan, where 9 people were killed and 81 injured. The previous day, 12 people were killed when a mob stormed a United Nations building in Mazar-i-Sharif, though on Saturday the top United Nations official in Afghanistan blamed Taliban infiltrators for the killings. He said the victims had been deliberately murdered rather than killed by an out-of-control mob.

“Did our action provoke them?” the pastor asked. “Of course. Is it a provocation that can be justified? Is it a provocation that should lead to death? When lawyers provoke me, when banks provoke me, when reporters provoke me, I can't kill them. That would not fly.”

Mr. Jones, 59, with his white walrus moustache, craggy face and basso profundo voice, seems like a man from a different time. Sitting at his desk in his mostly unadorned office, he keeps a Bible in a worn brown leather cover by his side and a “Braveheart” poster within sight. Both, he said, provide spiritual sustenance for the mission at hand: Spreading the word that Islam and the Koran are instruments of “violence, death and terrorism.”

In recent weeks, Mr. Jones said, he had received 300 death threats, mostly via e-mail and telephone, and had been told by the F.B.I. that there was a $2.4 million contract on his life.

For protection, his followers — the 20 to 30 who are left — openly carry guns (they have licenses, he said) and have become more rigorous about checking their cars and visitors' bags. Police protection is sometimes required when members travel, he said.

Mr. Jones's rustic church sits on 20 acres of land, up a long driveway that is dotted with Australian pines. There is a small aboveground pool, and three police cars idled nearby on Saturday.

“I don't right now feel personally afraid,” he said. “But we are armed.”

Mr. Jones said the decision to hold the mock trial of the Koran on March 20 was not made lightly. “We were worried,” he said. “We knew it was possible. We knew they might act with violence.”

There were similar predictions last year when Mr. Jones threatened to burn the Islamic holy book on Sept. 11. While that decision was being discussed, throngs of reporters descended on the church, and Defense Secretary Robert M. Gates personally called and asked Mr. Jones not to do it. President Obama appealed to him over the airwaves.

This time would be different — and not just because the event would be held in relative obscurity, before only a small group of sympathizers. This time, Mr. Jones said, there would be a trial, a fact that he said added heft to his decision.

He teamed up with The Truth TV, a satellite channel out of California that is led by Ahmed Abaza, a former Muslim who converted to Christianity and who, Mr. Jones said, sympathizes with the church's message.

The pastor said The Truth TV reached out to him last year after he canceled his plan to burn the Koran, and a partnership of sorts has since flourished. Mr. Abaza helped provide him with most of the witnesses and lawyers for the mock trial, Mr. Jones said.

“I was not the judge,” said Mr. Jones, who also said he had read only portions of the Koran and not the entire text.

There was a prosecutor and a defense lawyer for the Koran, an imam from Texas. There were witnesses — although the defense did not call any — and a jury.

Yes, he said, he knew some of the jurors, and others came to the event after learning about it through his group's Facebook page. (“People were afraid, so not many volunteered,” he said.) And yes, perhaps, his Facebook followers made up the majority who sentenced the Koran to burning in an online poll.

Still, he said, “it was as fair a trial as we could have.”

The Truth TV streamed the mock trial live in Arabic but chose not to broadcast the actual burning. Video of the trial can be found at the church Web site.

Mr. Jones's mission is not a popular one in these parts. The Dove World Outreach Center's membership evaporated after his preaching began to focus on what Mr. Jones said are the dangers of Islam. “We don't have any members,” he said. “It's not something your average person wants to do.

“People want to hear the good news. But the church has a responsibility to speak about the word of God. But it also has to speak out about what is right — be it abortion or Islam. Churches and pastors are afraid.”

He said he was no longer welcome in Gainesville — which he considers too small and unenlightened to understand his message — and is seeking to move.

First, though, he has to sell the church's property, which is not easy in Florida, which is one of the nation's foreclosure capitals. And as his personal stake in his mission grows deeper, his bank account is running dry. (One source of income comes from his eBay sales of antique furniture, some of which he stores in the church.)

“Things are not easy at this particular time,” said Mr. Jones, a Missouri native whose first career was as a hotel manager. “This has not been a moneymaking venture.”

Residents in this city, home to the University of Florida, are also less than thrilled.

Out in front of the church, signs that read “Islam Is of the Devil” have been edited by outsiders to say “Love All Men.” In a housing complex across the street, some of the residents said they could not wait for Mr. Jones to leave.

“Why are they trying to incite hatred and anger?” asked Shawnna Kochman. “They are mean. God is meant to have loved everyone. It's a cult.”

http://www.nytimes.com/2011/04/03/us/03burn.html?ref=us&pagewanted=print

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From Google News

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Giffords is now talking on phone

He declined to say specifically what Giffords has said "out of respect for her privacy."

But, he said, "pretty soon you will be able to ask her yourself because she's just doing extremely well and recovering very quickly."

Giffords was critically wounded 12 weeks ago Saturday, when a gunman opened fire at a constituent event north of Tucson. Six people died and 12 other people were wounded in the Jan. 8 massacre.

Giffords' recovery has been the subject of national interest. Her doctors at Memorial Hermann Hospital in Houston, where she is undergoing rehabilitation, have said she is making significant advances in speech, motor skills and life skills. She began speaking two months ago, asking for more toast with her breakfast.

C.J. Karamargin, a spokesman for Giffords who was in Houston two weeks ago, declined to say whether the congresswoman is having regular phone conversations, citing her husband's wish for privacy. But he did point to multiple reports of visitors to Giffords' hospital room from friends, family and other members of Congress.

Hernandez, who was in the fifth day of his internship the morning of the shooting, rushed to Gifford almost as soon as she fell. He cradled her head in his lap, covered the wound in her head with his hand and comforted her in the ambulance on the way to the hospital.

He said he most recently talked to Giffords and her mother, Gloria Giffords, by phone Wednesday while at work in the congresswoman's Tucson office.

"Gloria passed the phone over to Gabby," Hernandez said.

"It's great hearing her voice," the 21-year-old said.

http://www.usatoday.com/news/nation/2011-04-02-giffords-recovery_N.htm

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Is U.S.-Mexico border secure enough?

by Elizabeth Aguilera

April 2, 2011

The ranks of Border Patrol agents top 17,600. Nearly 650 miles of additional fencing is up. Four unmanned drones patrol from California to the Gulf of Mexico. Twelve hundred National Guard soldiers are on the ground. Camera systems numbering 467 sweep the perimeter and 10,800 ground sensors lie in wait.

Given this unprecedented expansion in resources during the past decade, U.S. government officials said the southwest border is the tightest it has ever been.

Skeptics and “border security first” supporters are convinced it is still not enough, while advocates for comprehensive immigration reform believe it is more than adequate and the nation should push forward on other issues, such as restructuring the visa system and creating a process for illegal immigrants living in the U.S. to gain legal status.

Last week, congressional Republicans announced that they're drafting legislation to further bolster border security — add more customs officers, anti-narcotics teams and surveillance equipment. Janet Napolitano, head of the Homeland Security department, said Friday that her agency has and will continue to strengthen enforcement of the southwest border.

“No one has described what a secure border looks like. We have no baseline and we have no target,” said David Shirk, director of the Trans-Border Institute at the University of San Diego. “It's a great example of a moving standard and for the last 20 years, that standard has been moving up with no targets in sight.”

Customs and Border Protection Commissioner Alan Bersin credits the cascade of money, staffing and technology flowing into the southwest border region for causing a drop in apprehensions and leading to the lowest rates of illegal entry from Mexico into the U.S.

“Secured borders are not sealed borders,” Bersin said. “This is about satisfactory control. The facts on the ground are that the border is not out of control.”

The number of apprehensions fell 62 percent from 2005 through last year — to a total of 447,731 in 2010. It's unclear how much the Great Recession, which dried up many jobs north of the border, deterred would-be illegal migrants.

Bersin said a good portion of people who try to cross the border illegally are detained. He cited a rate of 90 percent for the San Diego sector and nearly 100 percent for El Paso. But neither he nor his staff could explain how those rates are calculated.

Among those challenging the government's claims of security is Janice Kephart, director of national security policy at the Center for Immigration Studies and former counsel to the 9/11 Commission.

“There are so many indicators of insecurity out there,” said Kephart, who used hidden cameras to make a series of documentaries about undocumented migrants and drug mules entering Arizona undetected. “If you are down to the point of single digit percentage of illegal entry, then you are at the point where you are doing pretty well.”

Efforts to buttress the U.S.-Mexico boundary began in earnest in 1993 with Operation Blockade/Hold the Line and Operation Gatekeeper the year after. Attention to the region spiked after 9/11, eventually leading to creation of the Department of Homeland Security in 2003.

The agency comprises the three arms of immigration:

•?Customs and Border Protection — handles borders and ports of entry, including airports.

•?Immigration and Customs Enforcement — oversees interior security.

•?U.S. Citizenship and Immigration Services — manages naturalization and related processes.

Border statistics from before 2003 are not as complete as those now kept by Homeland Security. For example, Customs and Border Protection said it has comprehensive figures for apprehensions and Border Patrol agents from the 1990s, but not for rescues or technological devices.

In the past decade, billions of dollars have gone into beefing up enforcement along the southwest border. Authorities knew the result would be a funnel effect that pushes illegal immigrants and drug smugglers into the rough topography of Arizona, which is harder to patrol, according to government reports at the time.

The pattern materialized more quickly than they expected. Today, Arizona remains the focal point for much of the illegal trafficking along the U.S.-Mexico boundary.

Bersin's goal is to keep the number of illegal border crossers low enough, and to communicate that achievement to the public so border security no longer becomes fodder for political rhetoric.

“There is a disconnect because you can exploit this (issue),” he said.

Advocates of comprehensive immigration reform consider the “border security first” mantra a stall tactic by conservatives. But those conservatives and others, including most researchers, said it is nearly impossible to know how many people are slipping into the U.S. The number of illegal immigrants in the country, they contend, is not a good barometer because 40 percent of those residents entered legally through ports of entry on visas that have since expired.

“The public perception is misguided,” said B. Lindsay Lowell, director of policy studies at the Institute for the Study of International Migration at Georgetown University. “One should never expect the border to be fully effective in cutting the number of unauthorized immigrants.”

Border security must be combined with interior enforcement, he said. “There has to be that double whammy. The ultimate magnet is the job.”

The focus must expand beyond the border perimeter, said Rep. Brian Bilbray, R-Solana Beach, chairman of the House Immigration Reform Caucus.

“The border is not the problem, the border is the symptom,” said Bilbray, who did not define what successful border security would be. “Interior enforcement has to be the key. ... Requiring everyone to prove that they are not hiring illegal, quit subsidizing illegal employers, things like that are what the public is really going to judge us by.”

A holistic approach that includes boosting worksite enforcement is best, said Frank Sharry, executive director of America's Voice, an immigration reform group based in Washington, D.C.

“I'm asserting that we are doing everything that can possibly be done at the border,” Sharry said. “The three additional elements are cracking down on illegal hiring, finding a way for the current undocumented workers to become legal and modernizing the legal immigration system.”

http://www.signonsandiego.com/news/2011/apr/02/us-mexico-border-secure-enough/

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