The Erickson Report, Page 4: A Longer Look at Our Criminal Law System

The Erickson Report, Page 4: A Longer Look at Our Criminal Law System

And that brings us to A Longer Look at that profound failing at the heart of our legal system, because these cases are linked by more than the fact that they're both about convictions for murder.

Larry Swearingen was legally murdered because there was no error in the procedures, there was no misstep in applying the rules of the courts, and there is no requirement for a court to consider newly-discovered evidence or to believe it if it's produced. Johnson is still in prison because the court system was more interested in "the integrity of the legal process" than the fact of a wrongful conviction.

The court system, that is, the courts as part of what we call the criminal justice system, is more interested in the technicalities of legal procedure than it is with truth or with justice. It has been said before that "The law is not about justice. The law is about the law." And despite what we call it, we do not have a criminal justice system; we have a criminal law system.

So what happened in these cases is not the fault of Judge Edwards. It is not the fault of Judge Hogan. It is the way the system is designed: The original trial court is the place, the only place, where facts are to be determined, where truth or falsehood are to be found out. After that, at any higher court, it's all about procedure, about rules and regulations, and the truth of the original charge, indeed the very personhood of the convicted person, fades to insignificance.

Oh, certainly if you can show corruption on the part of the police or prosecution you can get a conviction overturned, but that's because they broke the rules; it has nothing to do with the truth or falseness of the charge.

Larry Swearingen

The profound flaw at the heart of our criminal justice - properly criminal law - system is that it equates justice with the process, not with truth or fairness or decency or even the accuracy of a criminal charge and sees nothing wrong with innocent people being imprisoned or even executed as long as they got "a fair trial."

To be convicted, the evidence has to show guilt beyond a reasonable doubt. But once you are convicted, the system is designed to assume that result was correct, so in the absence of some demonstration of official misconduct, of clear and undeniable rule-breaking, getting reconsideration on the basis of new evidence of innocence is like changing the mind of someone who already has firmly made theirs up - particularly because if a case is sent back to consider new evidence, it usually goes back to the original trial judge, who is now in the position of being asked, in effect, to confess that they were partly responsible for sending an innocent person to prison or even to Death Row. Such a change of mind happens, but it's rare. The system that claimed a bias in favor of the defendant at trial now has a far stronger bias in favor of the prosecution.

Lamar Johnson

It goes so far that the Supreme Court has never actually found that it is unconstitutional to execute a person known to be innocent of a capital crime, not so long as all the correct procedures were followed.

For example, in the 1993 case Herrera v. Collins, the Supreme Court denied habeas relief to a Texas death row inmate, ruling that in the absence of other constitutional grounds, newly discovered evidence of actual innocence would have to meet an "extraordinarily high" threshold - a threshold far higher than that required for conviction - to be grounds for a new trial. The court said he didn't meet that requirement. He was later executed.

The only sliver of hope on this particular front is found in the case of Troy Davis, another possibly innocent man executed by the state, in this case the state of Georgia in 2011. Responding to a 2009 petition from Davis, the Supreme Court ruled that "the District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence."

Troy Davis

That is indeed an "extraordinarily high" threshold, requiring evidence that could not - not was not, could not - have been obtained at time of the trial and which "clearly establishes innocence" - not "creates reasonable doubt about guilt" and note again that it's not necessary to "clearly establish" guilt in order to convict. But it at least suggests - but again does not say - that it would be unconstitutional to officially murder an innocent person even if all the legalities were seen to.

And in any event the failing - the devotion to procedure rather than justice - remains. I don't have an answer for this, I don't have a grand proposal for thoroughgoing change. I admit in fairness that a lot of the incantation-encrusted structure that has grown up around the law arose from attempts to prevent personal biases and cruel arbitrariness from determining outcomes of legal proceedings, but in so doing is has also for the most part locked out concepts such as compassion and completely rejected the concept that sometimes it's necessary to slip outside the rules in order to do what is right.

Meanwhile, as our legal system has become a nearly impenetrable, self-referential, high priesthood where most of us can find ourselves blocked from the courthouse for not knowing which official form to file or missing a deadline of which we were never informed because it was up to us to know, that failing continues to eat away at the justice we foolishly believed the system was about and the names like Larry Swearingen, like Lamar Johnson, like Troy Davis, like all the others wrongly convicted, even wrongly executed, will continue to haunt us.

Again, I don't know the answer. But I do know this: At his legal murder, Larry Swearingen said "Lord forgive them. They don't know what they are doing." I think he was wrong. They know exactly what they are doing. They are serving the system.

The Erickson Report, Page 3: Two Weeks of Stupid: Clowns and Outrages [the Outrages]

The Erickson Report, Page 3: Two Weeks of Stupid: Clowns and Outrages [the Outrages]

Now the Outrages, and there are two of them, linked by the way they demonstrate a profound flaw, a profound failing, at the heart of our criminal justice system. And I'm not talking about racism or classism - the advantages the rich have over others - or anything like that, I am talking about the philosophy that undergirds the system itself.

The first involves one Larry Swearingen, who on August 21 was legally murdered by the state of Texas.

Swearingen had been convicted in 2000 of the 1998 rape and murder of 19-year-old Melissa Trotter. The evidence was strictly circumstantial, consisting largely of the fact that he was the last person seen with her before she disappeared and some signs of what could have been a struggle in his home. No physical evidence connected him to the crime; the closest thing to actual hard evidence was that a cell phone tower noted his phone signal that evening, meaning he was in the vicinity of a certain road potentially relevant to the case at the time.

Swearingen never denied knowing Trotter and maintained his innocence literally to his last breath. His attorneys had mounted a major effort through the legal system to defend him, fending off four previous dates for execution over the years, arguing that the prosecution relied on "junk science."

So what's the deal? It's that a number of influential Texas pathologists, together responsible for thousands of death investigations every year, say that the evidence proves that Trotter had not been dead very long when her body was found more than three weeks after she disappeared. In which case, Swearingen could not have killed her, since - the ultimate alibi - he was in prison on an outstanding warrant and had been there since a couple of days after Trotter vanished. Even the medical examiner who conducted the autopsy, Dr. Joye Carter, recanted her trial testimony in 2007, admitting that the ease with which she was able to weigh and dissect Trotter’s organs, which would have been seriously deteriorated had she been killed in the time before Swearingen was arrested, made the state’s timeline impossible.

Larry Swearingen

Here's the crucial point: The courts didn't care. As an example, a nine-day hearing was held in 2012, laying out expert testimony on why Trotter had to have been killed not long before her body was found, thus long after Swearingen was in prison. Even before the final transcripts were filed, Judge Fred Edwards, who presided over the original trial, dismissed the science presented by the defense as "junk."

And so it went: The rulings were issued, the procedures were followed, there was no error in the operation of the machinery of the law, all the i's were dotted and the t's crossed according to formula, and so finally Swearingen was officially killed and the law was satisfied - as a quite likely innocent man lay dead.

Our second Outrage involves Lamar Johnson, who has been in prison in Missouri for 24 years, having been sentenced to life without parole for a murder even prosecutors now say he did not commit.

Johnson was convicted of murdering Marcus Boyd in 1994, in a case that even at the time should have left everyone scratching their heads. Prosecutors claimed that in the space of just five minutes, Johnson left a friend's apartment, traveled 3 miles to Boyd's home, killed Boyd, and then traveled by foot back to his friend's apartment.

But what's brought renewed attention is the fact that St. Louis Circuit Attorney Kimberly Gardner's Conviction Integrity Unit has filed a 67-page motion seeking a new trial for Johnson, based on having uncovered a staggering amount of misconduct on the part of homicide detectives and prosecutors, including inventing witness statements, paying the single eyewitness, and pressuring that person into making a false identification. Then there was the fact that two other men confessed in 1996 and 2002 that they were the ones who killed Boyd in a botched robbery.

Lamar Johnson

But Circuit Judge Elizabeth Hogan rejected the motion on August 23, saying in effect it was 24 years too late, citing a provision of Missouri law that, believe it or not, requires a motion for a new trial to be made within 25 days of trial's end. Hogan's decision gives no evidence of there being an exception for evidence discovered after that time.

In fact, in her ruling, Judge Hogan seemed much more concerned with a question of if prosecutors and Johnson’s lawyers had violated some rules of court procedure in pressing for his freedom. She wrote that she was "concerned about the integrity of the legal process in this case" even as she could not spare a word for what one of Johnson's lawyers called "the clear, convincing, and overwhelming evidence" that Johnson is innocent.

She did, however, for some reason find it relevant to include in laying out the background to the case that the same day that Gardner filed her motion, she "also released a copy of its motion and exhibits to the national media," an irrelevant observation which bluntly doesn't say much for Hogan's impartiality.

And so Johnson still sits in prison, hoping against hope for a successful appeal although it's hard to see on what basis if Judge Hogan cited that law about filing for a new trial correctly, since there is then no visible error, even if the aside about releasing the motion to the media could be taken as an indication of personal bias against Gardner or her office.

The Erickson Report, Page 2: Two Weeks of Stupid: Clowns and Outrages [the Clowns]

The Erickson Report, Page 2: Two Weeks of Stupid: Clowns and Outrages [the Clowns]

Okay, we turn now to a popular feature, Two Weeks of Stupid: Clowns and Outrages. We start, as usual, with the Clowns and oh do we have a carful this time.

Our first Clown is conservative radio host and poster boy for privilege Ben Shapiro, who said on his show a couple of weeks ago that people who have to work two jobs are actually just, well, stupid:

If you had to work more than one job to have a roof over your head or food on the table, you probably shouldn’t have taken the job that’s not paying you enough. That’d be a you problem.

Put another way, if you have to take a second - or a third, or a fourth, or whatever - job in order to provide for your family, it's your own damn fault because you should have refused to take any job at all until one that paid enough came along.

He got scorched on Twitter, provoking him to shift into damage control mode, claiming - I shouldn't even have to tell you this - claiming he was taken out of context, the context being, it seems, that the government should take no steps at all toward establishing a living wage because The Market (pbui) "knows more than you do."

Ben Shapiro

How that affects his blaming struggling people for their problems goes unexplained. Which is pretty typical for a Clown.

=

Next up, and we're sort of taking these chronologically, is the Hasbro company, which has come out with a variation on the board game Monopoly, this one called "Monopoly Socialism." You immediately can get a flavor of the game by noting the tagline is "Winning is for capitalists."

Historian Nick Kapur described the game in a lengthy Twitter thread, including noting the lame jokes about vegetarianism - how that got to be about socialism is beyond me - and the "We Are All Winners" school as well as pointing out the mockery aimed at environmentalism and, get this, voting.

the game

The whole idea seems to be that no one in the game gets anywhere, the "community fund" that finances projects which individual players can't afford is designed to be constantly going broke, and from time to time any wealth that the community has actually accumulated is simply destroyed.

I could have done without Kapur's suggesting the target audience is "hate-filled baby boomers who grew up during the cold war and are triggered by anything done by anyone under 40," but the fact remains that the whole thing is so thoroughly lame it is hard to imagine just who it is for and it is clearly the product of the minds of Clowns.

=

We move on to the fact that last week, in response to a report that bedbugs had been found in the New York Times newsroom, a George Washington University professor named named David Karpf tweeted that "The bedbugs are a metaphor. The bedbugs are Bret Stephens," Stephens being a right-wing Times op-Ed columnist.

Bret Stephens

His tweet got, Karpf later said, nine likes and zero retweets and was not sent to Stephens.

Now personally, I think the joke is not funny and in fact a bit creepy but Stephens, who somehow heard about it, went out of his little mind. He wrote to Karpf complaining about his tweet and essentially daring Karpf to come to his house and say it to his face - a letter which he copied to the the university provost, that is, Karpf's boss. Oh, not to threaten his job of course, not to get him in trouble at work, oh no perish the thought, rather it was merely that he thought the provost should be aware of his underling's behavior. He then wrote a whole column about about attacks on Jews in World War II referencing insect comparisons and saying "the rhetoric of infestation is back."

To top is off, he then took advantage of his place as a contributor on MSNBC to get face time to bloviate about his side of his by-then-viral tiff with Karpf, who of course was afforded no such opportunity.

And if all that doesn't add up to Clown status (with the Times and MSNBC as enablers), then how about this:

James Inhofe

Despite cc'ing Karpf's boss, when it came to the case of Tucks Carlson saying Iraqis are "semi-literate primitive monkeys," Stephens defended him, saying threatening someone's career is an assault on free speech - in addition to which, insect and "infestation" references are not new to him, as he once compared Palestinians to a giant mosquito.

=

Okay, an old favorite Clown is Sen. James Inhofe. He has introduced an amendment to the National Defense Authorization Act to limit the authority of the Federal Energy Regulatory Commission to regulate lake levels and flood control related to a dam on Grand Lake in northeastern Oklahoma.

Folks upstream of the damn, including local Native American tribes and officials in the high-poverty town of Miami, say that maintaining high water levels on the lake has contributed to repeated floods as water backs up from the dam. Two dozen floods in less than 30 years, in fact, with 150 homes torn down and more abandoned as a result. This spring’s floods forced the Eastern Shawnee tribe to evacuate, its ceremonial grounds covered in three feet of water.

LeBron James

Inhofe wants higher water levels at Grand Lake on the grounds that it "makes the lake a better place for recreation and commerce." We're all sure here that the facts that he has a vacation home there and a company in his wife’s name holds $1 million in property around the lake has nothing to do with his enthusiasm for deregulation.

Inhofe's middle name, no joke, is Mountain. Which seems entirely appropriate for a Clown who has rocks in his head.

=

And the Clowns keep on coming. LeBron James has reportedly filed for a trademark for the phrase "Taco Tuesday," apparently based on his popular series of social media posts on the theme.

According to the application, James wants to trademark the phrase for "advertising and marketing services" through "indirect methods" that include social media and blogging.

So be careful: If you ever want to have tacos on a Tuesday, you may have to pay a fee to LeBron James, professional Clown.

the shirt

As a footnote to that, of course the phrase "Taco Tuesday" has been around a long time, long before LeBron James became a fabulously rich man who wants to be a fabulously richer one. You're not supposed to be able to trademark a common phrase or expression, but in a world where money speaks louder than law and the patent office is hopelessly overburdened, that principle did not keep Paris Hilton from trademarking "That's hot!" or Rachel Zoe from getting a trademark on the word "bananas" referring to something crazy, even though that's an expression that dates back to at least 1935.

=

Then there are the Clowns of the administration of the Highland Hills Middle School in Highland Hills, Indiana, where a 13-year-old girl got in trouble over a t-shirt.

What was wrong with it? Well, it had a slogan that read "Why be racist, sexist, homophobic, or transphobic when you can just be quiet?" which the principal declared inappropriate and disrespectful, along with claiming the words “Sex” and “Homo” were too eye-catching. As you can see in the picture, yeah, they really do just pop out at you, don't they.

The school's dress code bans shirts that are "suggestive, obscene or promote alcohol or drug products or use" or are sheer. It seems that "oppose bigotry" needs to be added to that list - unless doing so is already considered obscene by the Clowns at Highland Hills Middle School.

Dan Rehill

=

Finally for this time, we have the Rev. Dan Reehil, a Clown pastor at the St. Edward School, a Roman Catholic grammar school in Nashville, Tennessee. He just sent an email to parents of students telling them that the Harry Potter books have been removed from the school library because they "risk conjuring evil spirits." Seriously.

Quoting the email:

These books present magic as both good and evil, which is not true, but in fact a clever deception. The curses and spells used in the books are actual curses and spells; which when read by a human being risk conjuring evil spirits into the presence of the person reading the text.

Personally, I think that's just Riddikulus.

Clowns to the right of me, Clowns to the left of me, Clowns in front of me, volleyed and thundered....

The Erickson Report, Page 1: Following Up on Three Items

The Erickson Report, Page 1: Following Up on Three Items

We start this time by Following Up on three things previously discussed.

On the very first episode of The Erickson Report, we took A Longer Look at Venezuela and its disappearance as a news story after the US-backed attempt to overthrow Venezuelan President Nicolás Maduro in favor of self-declared president Juan Guaidó fizzled out.

As part of that, I noted how the Tweetie-pie White House had imposed two rounds of damaging economic sanctions against Venezuela, the first in 2017 and the second in January of this year.

Following Up: On August 5, there came a third round of sanctions, these intended to be economically crippling.

The executive order blocks all property and assets of the Venezuelan government and its officials, and prohibits any transactions with them, including the country's Central Bank and the state oil company, essentially creating an economic wall between the US and Venezuela. What's more, it threatens that any non-US company that does any business of any sort with Venezuela may itself be subject to US sanctions.

In April, a study published by the Center for Economic and Policy Research found that US sanctions against Venezuela had already resulted in 40,000 deaths between 2017 and 2018.

Now, referring to the latest round of this economic terrorism, Michelle Bachelet, the United Nations' High Commissioner for Human Rights warned of the severe impact on the human rights of the people of Venezuela, saying the new sanctions could deny food, medicine, and other necessities to millions of people.

The story may have disappeared from the US media, but it remains real for the people of Venezuela, who are being told by the US "give us the government we tell you to - or starve."

=

Next: A couple of weeks ago I took A Longer Look at the Boycott-Divest-Sanctions (BDS) movement and Israel, in the course of which I discussed the reports that between the end of March and the end of December 2018, Israeli snipers had killed 180 unarmed Palestinian protesters in the Gaza Strip and wounded over 6100 more - both numbers higher now - and referred to the fact that Gaza has been rightly called "the biggest outdoor prison in the world."

Here's indication of what I meant.

COGAT stands for Coordination of Government Activities in the Territories. It is the Israeli government agency that scrutinizes every package entering Gaza in search of banned items, including allegedly deadly "dual-use" items that could, Israel insists, be used for "military purposes." Such "dual-use" items go well beyond what you would think as a norm. The label can be arbitrarily put on items such as drones, cameras, and radios, for which you can at least imagine a military use, to microscopes, medical equipment, construction material, and spare parts for assembly lines.

And now COGAT has attained a real coup: The beginning of August, the agency breathlessly tweeted that it had uncovered "dozens of pairs of military shoes that were hidden in a shipment of civilian goods, in an attempt to smuggle them into Gaza for terrorist purposes," adding that "This is another miserable and failed attempt by terrorist groups in Gaza to hide behind the civilian population."

The tweets were illustrated with pictures of the military shoes, terrorist contraband. Yes, those shoes. The picture is from the tweet COGAT sent out. Pictures of ordinary, everyday, lace-up hiking boots.

It was so absurd, at least some people thought the tweet was a joke. But it wasn't. Instead it is testimony to the deeply paranoid, deeply cruel, and deeply destructive blockade Israel has placed around Gaza. It needs to stop.

=

Finally for this time, around the end of July, I noted the argument being raised against Medicare for All that polls say that people love their private insurance plans, so anything that suggests getting rid of those is doomed to failure.

Here's the thing[, I asked at the time], are those people really happy with their insurance? Are they happy with the premiums, the co-pays, the deductibles, the medically-necessary procedures put on hold until you find out if "insurance will cover it," the not being able to choose your doctor because they are "out of network?" Or are they just happy that they have insurance?

A recent Business Insider poll seems to answer that question.

It showed that 59 percent of respondents who have employer-provided insurance "said they would support switching their employer-based health insurance to a government plan under Medicare for All" as long as quality of coverage would remain the same or improve - which bluntly it would or there is no point in doing single-payer in the first place.

As Business Insider put it,

[t]he results highlight the fact that ... mainly people just like being covered, bearing little loyalty to a specific insurer.

Incidentally, the poll also found that among those Americans on government-run healthcare plans - Medicare, Medicaid, and military coverage - 57% love their plan, which is 16 percentage points higher than those on employer-provided plans and 18 points higher than those with privately-purchased insurance.

The Erickson Report for September 4 to 17

The Erickson Report for September 4 to 17

This episode:

- Following Up on Venezuela
https://whoviating.blogspot.com/2019/05/the-erickson-report-page-3-deeper-look.html
https://www.commondreams.org/news/2019/08/06/economic-terrorism-after-failed-military-coup-attempt-trump-imposes-total-embargo
https://www.commondreams.org/news/2019/08/09/warning-severe-harm-millions-people-un-human-rights-chief-condemns-trump-embargo

- Following Up on BDS and Israel
https://whoviating.blogspot.com/2019/08/the-erickson-report-page-5-longer-look.html
https://www.commondreams.org/further/2019/08/07/banning-terrorist-boots-what-occupation-looks
https://electronicintifada.net/blogs/maureen-clare-murphy/terror-boot-claim-kicks-twitter-scorn

- Following Up on Medicare for All
https://www.commondreams.org/news/2019/08/09/undermining-right-wing-attack-poll-shows-most-americans-employer-provided-insurance
https://www.businessinsider.com/most-americans-employer-based-plans-healthcare-medicare-for-all-2019-8

- Two Weeks of Stupid: Clowns and Outrages [the Clowns]
https://splinternews.com/ben-shapiros-advice-for-poor-people-have-you-ever-cons-1837248752
https://www.mediaite.com/online/ben-shapiro-roasted-over-blaming-poor-people-for-having-to-take-a-second-job-thats-what-a-spoiled-rich-kid-says/
=
https://splinternews.com/new-edition-of-monopoly-is-all-about-the-horrors-of-soc-1837475885
https://twitter.com/nick_kapur/status/1164233656799506433
=
https://twitter.com/davekarpf/status/1166094950024515584
https://twitter.com/davekarpf/status/1166159027589570566?s=20
https://www.nytimes.com/2019/08/30/opinion/world-war-ii-anniversary.html
https://www.nbcnews.com/politics/politics-news/professor-labeled-bret-stephens-bedbug-here-s-what-nyt-columnist-n1046736
https://splinternews.com/gw-professor-officially-throws-bret-stephens-in-the-tra-1837640830
=
https://www.dailykos.com/stories/2019/8/27/1881779/-Powerful-Republican-senator-puts-his-lake-house-over-flood-prevention-for-a-nearby-town
=
https://twitter.com/JoshGerben/status/1167771202397626368/video/1
https://www.theroot.com/lebron-james-vying-to-trademark-taco-tuesday-1837795463
=
https://www.yahoo.com/lifestyle/teen-dress-coded-for-wearing-shirt-that-reads-why-be-racist-sexist-homophobic-or-transphobic-when-you-can-just-be-quiet-223631447.html
=
https://www.aol.com/article/news/2019/09/02/catholic-school-reportedly-removes-harry-potter-books-from-library-because-they-risk-conjuring-evil-spirits/23805519/

- Two Weeks of Stupid: Clowns and Outrages [the Outrages]
https://www.chron.com/news/houston-texas/houston/article/Lord-forgive-em-Larry-Swearingen-14369155.php
https://splinternews.com/texas-executes-man-for-murder-conviction-whose-alibi-wa-1837459947
https://www.thenation.com/article/death-row-prisoner-larry-swearingen-may-be-innocent-do-texas-courts-care/
=
https://www.theroot.com/late-charge-judge-says-prosecutors-demand-to-free-in-1837596264
https://bloximages.newyork1.vip.townnews.com/stltoday.com/content/tncms/assets/v3/editorial/7/5c/75c4e19c-9220-5b21-acae-14d9aad821d0/5d6032524f933.pdf.pdf
https://www.stltoday.com/news/local/crime-and-courts/st-louis-judge-denies-lamar-johnson-s-motion-for-new/article_add3e1eb-2d62-518b-8ed8-5b56b9af8f94.html

- A Longer Look at the flaw at the heart of our criminal law system
https://supreme.findlaw.com/legal-commentary/did-the-supreme-court-recognize-an-innocent-persons-right-not-to-be-executed.html
https://deathpenaltyinfo.org/news/u-s-supreme-court-orders-historic-hearing-on-innocence-claim-in-troy-davis-case
https://www.innocenceproject.org/
http://www.criminaljusticedegreesguide.com/features/10-infamous-cases-of-wrongful-execution.html