A U.S. district court judge has denied an attempt to overturn the convictions of Dritan, Shain, and Eljvir Duka, three brothers who were sentenced to life in prison on dubious charges that they conspired to attack a military base in Fort Dix, New Jersey.
The Duka brothers had sought to reverse their convictions on grounds of attorney ineffectiveness at their original trial. This January, they told a court that their original lawyers coerced them into not testifying at trial, saying they were unprepared to put the brothers on the stand, despite the brothers’ desire to do so.
In his ruling Tuesday, Judge Robert Kugler said that those assertions were not credible, pointing, in the case of each brother, to statements they made under direct questioning by the court in the original trial as to whether they had been advised they had a right to testify and whether they understood their attorneys could not stop them from testifying. All answered in the affirmative, in two instances explicitly stating they chose not to testify, and in the third, confirming a statement their attorney had just made to that effect. The brothers have said they were told this portion of the trial was a mere “formality.”
Kugler, the same judge who sentenced the Dukas to life imprisonment in the case, also said in his ruling that the Dukas’ “sole remaining claim” for relief was being denied.
In a statement yesterday, Robert Boyle, the lawyer for Shain Duka, said the judge’s decision was “disappointing [but] not entirely unexpected.” Boyle added that he would be taking the case to the United States Court of Appeals for the 3rd Circuit.
“The major struggle, however, must be in the public arena,” Boyle added. “In this case, the government used highly paid informants that manipulated the Dukas into making theoretical statements that the government then used to charge them with terrorism. No act was ever committed by them. No act was ever planned by them. Nor did they agree to commit any illegal acts.”
“The result is that hard-working young men with devoted families are serving sentences of life without parole,” he said. “This case was not about fighting terrorism. It was about feeding fear.”
The Fort Dix Five case has long been cited by legal advocates as an example of particularly egregious excess in counterterrorism policing. An investigation published by The Intercept last year determined that the Duka brothers were not involved in any alleged plot against Fort Dix, nor were they even aware of such a plan. An informant used by the government in the case stated his belief that the brothers were innocent, describing them as “good people” who had nothing to do with the alleged Fort Dix plot.
Questions were raised about Kugler’s own impartiality after he told one of the defendants during sentencing that the lack of “explicit evidence does not concern me and obviously didn’t concern the jury either,” adding that the individual in question could not be deterred from crime “because of his belief system.”
Despite glaring deficiencies in the case, the prosecution of the Fort Dix Five has been trumpeted by New Jersey Gov. Chris Christie as a signal achievement of his career in public service. Christie prosecuted the Duka brothers while working as a U.S. attorney, and the case helped turn him from an obscure New Jersey official into a national political figure. Christie repeatedly cited the Fort Dix case during his unsuccessful presidential run as proof of his national security credentials. Since dropping out of the race, he has primarily earned notice for his bizarre public appearances alongside presumptive GOP nominee Donald Trump, appearances that have fed rumors of a future role for Christie in a Trump administration.
Legal advocates say they will not give up their fight to win a new trial for the Dukas, who they say were victims of entrapment by the government. “The Duka brothers were convicted of a conspiracy they did not know about; this is un-American,” says Lynne Jackson, a lawyer with the advocacy organization Project SALAM. “The supporters of the Fort Dix Five will continue to advocate for them and will continue to seek justice for the brothers. We will never give up until they are free.”
Mani! What a pain the my ARSE you’re words are! Boring! What a dick!
Conspiracy prosecutions such as the one described in the article above, are the result of a modern corruption of the common law doctrine of conspiracy. First with the war on drugs, and now vis-a-vis terorrism, American courts have generally abandoned the Constitution to permit the state to do as it pleases, including entrapment and attacks on free speech.
For a professional analysis of this issue, this 2014 article (pdf) in Catholic University Law Review is helpful.
Thanks so much for this…and may I say to you…you are doing the greatest service here to those of us who don’t know the Law. You may get many agitators coming after you…but I am consistently amazed at your ability to tackle them with conviction. Again…thanks, and I hope for a true justice system that has been perverted for far too long.
Below one Peter writes:
Based upon his knowledge base and manner of writing, I’m inclined to think “Peter” is a lawyer and likely one who’s been party to some of these heinous FBI-led terrorist prosecutions in which the FBI itself induced the crime. (Entrapment doctrine has become all but useless to defendants since 9/11. Law enforcement can now pretty much do as they please to whomever — if they are not a WASP — and then convict them.)
He’s been unwilling to straighforwardly address these aspects of the case:
Especially in light of:
All of this, which has become routine for targets who are Muslims, is hunky dory with Peter.
He asked you very simple questions that you continuously dodged.
“And again I ask, what else could be done? Would you have them be forced to testify? Questioned as to their lawyers advice or the reason for their refusal to testify? Or what?”
Whether Peter is a lawyer conspiring to send all Muslims to jail is completely irrelevant to the questions he asked you. Either you cannot answer, which would suggest that you are not really a “lawyer” or you are just a poor commentator in distress incapable for presenting a coherent argument.
Based upon your inclination to babble whenever your lack of knowledge is exposed, it is beyond doubt that you are merely one of those Intercept’s puppets clapping for the authors regardless of the veracity of their articles. This is coming for me, a lawyer who believes our judicial system is inequitable and shameless. But I am aware your defense as a “lawyer” will be to call me a troll or a Zionist. I am shocked you have not describe Peter as such so far.
Idk about Peter, but what do you make of Judge Kugler’s sentencing statement that the individual in question could not be deterred from crime “because of his belief system.”?
I assumed Judge Kugler meant Muslim?
That you and Peter dislike my answer does not mean I didn’t answer it.
Oh, it’s you again.
Now, I made an argument about the proceedings in this case and quoted two excerpts from the article to showcase my objections to them (and other prosecutions like it.) You have nothing to say to that. How telling.
“That you and Peter dislike my answer does not mean I didn’t answer it.”
Again, more babble that proves my point. Your gabble works perfectly among the intellectually deficient commentators here, but is worthless even among first year students in law schools.
In the US judicial system the defendants have the right to reject their lawyers’ advice. Fact Check This!
The individuals were informed of their rights to testify. They refused that right.
So again, answer the simple questions
“And again I ask, what else could be done? Would you have them be forced to testify? Questioned as to their lawyers advice or the reason for their refusal to testify? Or what?” Peter
“Oh, it’s you again.”
Yes, I know. This is how your pathetic defense starts. “You” means somebody who has been “following” you, a “troll”, a “Zionist” that must be banned. That is your unending argument whenever I open these pages. Do not worry, I have no interest in wasting time on a site where foolish arguments are praised. You can be the queen of your sect continuously removing others as you believe that your fatuous discourse reflects any intellect at all.
Pleased to hear it. No one in this thread has brought up Zionist except you. But you are apparently leaving us now, so I trust this non sequitur will go with you.
Mani! What a pain the my ARSE you’re words are! Boring! What a dick!
As a lawyer, I can tell you you are not learning anything from Mona’s point of view. There are probably hundreds of law professors where you live. You should ask them about that case and stop relying on the Internet comment sections specially on this site. That is if you are really interested about this case and you are not just a name created for the sole purpose of supporting the Intercept.
Lol. It wouldn’t surprise me if ‘Peter’ is Harvard Law, cum sum lawd, based on his manner of writing, Mona. note ‘cum sum lawd’ is Latin = Head of the class (h/t Mabel Minkoff.)
*imho, only a Harvard trained lawyer would have the legal skills necessary to compare the Dukas with “Tim McVeigh. Ted Kaczynski. James Ellison.” and ask so innocently: “Please explain to me how each of them are innocent.”
Off topic, but I wanted to share this article by Dr. Juan Cole on Muhammad Ali before I take a break for the month of reflection and spiritual retreat:
“Sufi Boxer Muhammad Ali’s last fight was against Extremism & Politicians’ Islamophobia”, at http://www.juancole.com/2016/06/extremism-politicians-islamophobia.html
Islamophobia is not the problem. The problem is Islamophilia. Too many muslim people love the wrong variety of Islam. That is what is causing problem.
There is a bigger problem that you cannot solve. That is greed. Take the case of Hillary Clinton asking for half a million dollars for a single speech. This is plain greed. Nothing that she can ever say is worth even a small fraction of that amount, yet she takes this huge sum knowing she can repay them later in some other way. And Goldman Sachs pays up knowing it’s a profitable investment in a future potential POTUS. Greedy people are the ones that spread fear – now it’s about Islamists, at other times it’s different entities – to further their own agenda.
Western Greed has brought unending war to the Muslim war on unprecedented levels making the wrong brand of Islam more appealing to many.
In the end,the real problem for USzion is that Arabs and Muslims don’t take shite lying down,and will resist forever.
Yankee come home,leave the Zionists to deal with their self made disaster.
I didn’t know that Sufi … and I thought I knew most everything about the Greatest champion of all time!
*you see, there were lots of dirt poor, barefoot, hard-scrabble, half-breed hillbilly kids growing up Appalachia (Ky.) who identified with and admired the Goodest (if not the Greatest.) fighter of all time … and I was one of them.
(A local poet calls such black men Afrolachians.)
I will definitely remember him this way … http://media.juancole.com/images/2016/06/6d4878dd7e3f6e02a511c98c1c1debb2.jpg
That part of his story is not being told in the media. Dr. Cole did a huge thing by bringing it out, and I’m so glad that I shared it here. Hopefully, a lot more people now have become aware of it.
I’m certain that he was awakened to the inner essence of all the paths: Love, and that led him to Sufism, which enabled him to reconcile his commitment to Islam with his universalism.
No wonder his public funeral service will be inter-faith.
———————————————–
My heart has become capable of every form:
It is a pasture for gazelles,
And a monastery for Christian monks,
And a temple for idols,
And the pilgrim to Ka`bah,
And the tablets of the Torah,
And the Book of the Qur’an.
I follow the religion of Love:
Whatever way Love’s camel takes,
That is my religion and my faith.
— ibn Arabi
These folks got the justice they deserved. If they want American Justice then they need to look more American. If they look and talk and walk Talibanese then they deserve Taliban style Sharia injustice.
Justice is only for white people, apparently. Get back to your cousin, General Herpules.
“The Duka brothers were convicted of a conspiracy they did not know about, this in (sic) un-American,”…”
This is, unfortunately, very much American, as is torture, post- 911.
They knew about the purchase of weapons. The weapons were to be used in the attack. The weapons purchase, which they certainly knew about, was a predicate act of the conspiracy. There is no requirement that every participant know every detail of the conspiracy to be guilty. And that’s been true since long before 9/11 — back to English Common Law. This whole argument is either a red-herring or from someone who doesn’t know what conspiracy is.
Right! And torture is honorable, civilized and proper as long as it has a feel-good label.
That’s an odd response, since I said literally nothing about torture, since it has nothing to do with this case. I guess you couldn’t think of a response to what I actually said, so you made something up and then attacked that. Straw men come from people with nothing useful to say.
The government has not prosecuted one actual terrorist — just innocent people.
Tim McVeigh. Ted Kaczynski. James Ellison.
Please explain to me how each of them are innocent.
These three fellows look very foreign with their long beards, so it is incumbent on us to deliver them the Al Queda and ISIL type of justice that they deserve. Agreed that they got a crappy verdict, but I don’t think Jihadi folks can complain, wedded as they are to the Sharia system of injustice.
[“The major struggle, however, must be in the public arena,” Boyle added. “In this case, the government used highly paid informants that manipulated the Dukas into making theoretical statements that the government then used to charge them with terrorism. No act was ever committed by them. No act was ever planned by them. Nor did they agree to commit any illegal acts.”]
Highly paid informants = murder for hire. This is an affront to fair trial and innocent until proven guilty. “Proven” is not a paid informant who “works” for the government. It should be THROWN OUT as an obstruction to Justice. This is Lawlessness that has become a norm in a Justice System that has become an abomination to the expense of human life. A good lawyer or one who is holding up true Law needs to fight this on this ground in itself.
No one claims that these informants murdered anyone. The defendants were given a fair trial and were proven guilty, to the satisfaction of a duly-constituted jury. So, what ground is there for throwing out the verdict? There is no evidence that the informants entrapped or coerced the defendants. You seem to just want to spew against this particular case. Most major cases involved either paid informants or co-conspirators who testify to limit their culpable exposure. Should we not prosecute conspiracy cases at all? That would be the result of throwing out the system of informants.
Just because you are on the defense with every poster here says a lot for me.
[“Should we not prosecute conspiracy cases at all? That would be the result of throwing out the system of informants.”]
In answer to that I say “NO”. The whole system of paid government informants =
entrapment which = injustice of a fair trial. They are taking the testimony of a probable liar to further their case…probable liar = paid informant. I ask you how is that fair?
you: [“No one claims that these informants murdered anyone.”]
[“A U.S. district court judge has denied an attempt to overturn the convictions of Dritan, Shain and Eljvir Duka, three brothers who were sentenced to life in prison on dubious charges that they conspired to attack a military base in Fort Dix, New Jersey.”]
Denied an attempt to overturn the SENTENCED TO LIFE in prison convictions absolutely = a murder charge. To deny a retrial on probable grounds of paid perjury according to the bribes received on said accusers IS the typical SOP in DC…is it not? So with your argument…we the people on the grounds of truth can put every last liar in the US Government on trial and put in prison for life. (and deny every attempt to overturn it.) In that way the scales would be balanced with the same injustice meted out.
Nice rant. Not a word of sense or a fact in sight.
I particularly like “injustice of a fair trial” Perhaps, since you like these folks, we should just let them go. They are such assets to society. Career criminals, although on the pettiest of scale. A huge loss that they are in prison.
And their defense, if they had testified? “We weren’t going to commit a terrorist act with the guns and explosives we tried to buy. We were going to sell them.” Wow, how can we let these paragons rot in prison.
You’re funny — you sound just like Donald Trump.
Hey now…
racist much?
You just proved my point.
Thank you
I’m racist because I disagreed with you? Or pointed out that these brothers were convicted of dozens of crimes before this. Or suggested that you sound like Donald Trump?
Please identify the racism — cause otherwise it’s just another rant because you can’t string four consecutive words into a cogent sentence.
You seem all knowing and moral…
Answer your own questions.
Your demeaning attitude gives sway and gives complete witness to the objectionable and outright lawlessness of the corrupt system, its racism and its dishonorable gain. I did not mention Trump so why did you?
[“Perhaps, since you like these folks, we should just let them go. They are such assets to society.”]
You leave out FAIR TRIAL…that’s what you entrapped yourself with “racism”.
Have a nice day.
Sorry, I’ll quit now. It was cruel of me to continue having a battle of wits with a totally unarmed opponent.
What’s wrong here is the same thing wrong in the other article for that kid with life without parole for getting in a car — this notion that everyone involved in a conspiracy should be fully liable for everything it does. It is a cruel and unreasonable policy that denies there is any difference between pulling the trigger and not pulling the trigger. A just law should see there is a moral difference between choosing to make a robbery a murder and simply being present for the robbery, or in this case, between getting weapons illegally with a terroristic intent and actually being down for the whole attack. And I don’t care if King George III or Longshanks himself wrote those other principles of law you like personally, they’re still wrong. It is also in all of our interests to recognize the difference between the map and the territory, the plan and the battle. There is still a moral boundary, a place to turn back, even after a crew of would-be terrorists get together their maps and guns. All it takes is somebody to stand up and say wait, I can’t do this – or preferably, go to police – and it might never happen. Now I doubt the Dukas are innocent entirely, but sensible law recognizes there is a difference between them and the guy who shot up Fort Hood. That difference is that that guy shoot up Fort Hood. Ought to matter.
That is in fact the case here. One of the men, whose name I have lost in bad memory, was charged simply with gun offenses and sentenced to, I think, five years.
There is a reason for holding all participants in a conspiracy liable for the acts of any conspirator. If I buy guns for you, knowing you are planning to rob a bank and, in the course of robbing that bank you shoot someone, I am liable for that murder. It is a foreseeable result of what I agreed to participate in — if I gave you a gun, I had to know that you might use it.
If, on the other hand, I stole a car for you, and knew you were going to use it to pick up some drugs from a friend, but believed you when you said you had no gun, and you then went, picked up the drugs and shot your friend, I would have a defense that your action — shooting your friend — was not foreseeable by me because I believed you didn’t have a gun. Ther is some nuance in the law.
If, as you say, a crew gets together, plans to attack a military base, and then one of them leaves and refuses to participate, he is generally not liable for the ongoing events of the conspiracy. Renunciation ends liability for future acts; however, if he had already built a bomb, he may still be liable for that.
Conspiracy covers the planning and preparations for the Fort Hood attack; the actual killing is murder, or other charges. There is that difference in law. One can be guilty of conspiracy, or murder, or both in that case.
There are some distinctions, but they’re assed. To start with, consider the defendant with the five-year sentence. What you omit is that this was a plea bargain. Not only did he have to give up his right to a trial or appeal to get it – he got it only because prosecutors, before the case was tried and the facts fully known, decided to make a deal with him. Which is as backwards a way to deliver leniency as can be imagined! Then there’s your case of letting someone off because the guy said he didn’t have a gun. What the hell does that prove? To start with, it could be Texas, where everybody has guns. Since when did the right to bear arms mean you were a future murderer? And isn’t it reasonably foreseeable the guy would like about having a gun, or some other weapon? It’s all so very subjective guesswork, and yet the system makes hard-edged either/or decisions about it, and the highest virtue seems to be to do so with minimal information.
Prosecutors chose not to indict him for conspiracy in exchange for testimony and because of his limited involvement, yes. The facts were fully known at the time, in this case.
But yes, laws are blunt objects, hammers not scalpels. When they work it’s usually because people exercised judgment in charging and dealing. Almost all cases are settled by agreement, with no trial. If every case went to trial, they wouldn’t be adjudicated in this century. Nobody, as far as I know, thinks it’s a great system. It is, however, what we have. If you have a better idea, an awful lot of people would be very happy. I’m not being sarcastic, I’m serious.
Well why can’t people figure out if a defendant is a juvenile *after the case is done*? It’s not even particularly relevant to the trial! Get all the facts out, hear all the witnesses, then let the judge make that call. And give him a couple of intermediate categories to work with, juvenile but canny, adult but a gullible dipshit, whatever that translates to in Latin, to allow intermediate sentence modifiers and more limited restrictions on what prisons are used. It doesn’t seem like rocket science.
In this case, simply make the charge about what the charge is about. If you conspired to get illegal guns to dangerous terrorists, that is what the charge is. If you helped plan a terrorist attack, that should be a lesser charge than doing one. What’s odd is that The Intercept has run a lot of articles about people convicted who I didn’t feel sorry for, because as far as anyone can tell they made the actual decision to kill people. I mean, when the FBI gives you a fake bomb and you put it under a car and press the button to set it off, to me that’s a very different thing than if they talk to you about a hypothetical attack on a base and you say rah rah go for it. The one is real (well, a real fake anyway) and the other is just talk to me.
Pretty much everyone thinks the juvenile system sucks. In most cases, anyone tried as a juvenile cannot be sentenced past their 21st birthday. So, if a 15 year old kills 5 people, they try him as an adult. If you simply allowed unconditional sentencing, he could be tried in a juvenile proceeding, which affords him more protections and, if he is in fact found guilty of a heinous crime, he can be sentenced accordingly.
Many times prosecutors will charge a particular crime in order for the sentence to be appropriate. Charge with conspiracy to commit if you want to be sure they’ll get life, rather than gun dealing charges. You may have evidence enough to make out the charge, as in this case, but it doesn’t seem to fit for a lot of people. There’s not any debate that these men were trying to buy guns and explosives which they knew were illegal — the only debate is whether they intended to use them or sell them. So if I was in charge ….. but I’m not.
Hmmm… I thought we were arguing and now we’re both agreeing, which kind of takes the wind out of my sails. But I’ll add that one problem with having prosecutors make all the calls is that they do it before the facts of the case are known. Plus, there is little concealment of the fact that they make a lot of calls based not on the defendant, but on whether they want to “send a message”, look good for voters etc. They are not even as insulated from politics as a judge. There’s also the issue of prejudice, of course; but above that, the pressure for them to try successful cases. That pressure means that they want to pick on the weak to get an easy win, and give wide berth to the powerful to avoid humiliating loss, even before the bills hit the table.
Sorry, but it’s hard to argue when I basically agree.
Besides all the things you’ve said, there is a constant lack of money, and a parceling out of money for areas that are not necessarily most important. In 2014, over 11,000 people were murdered with guns in the US. In the last 20 years, terrorists have killed less than 3500 people in the US. But we spend inordinate amounts of money on terrorism, and nowhere near enough on simple street level gun dealing. The public wants this, the politicians do it,and the police/prosecutors are left to do the best they can. When California was forced to release prisoners due to overcrowding, they released convicted arsonists rather than non-violent drug offenders and polls showed public support at 70+%. Of course our justice system is screwed up, and I think mostly prosecutors are doing the best they can. Hard to captain a sinking ship effectively.
Correction”
“we the people on the grounds of truth can put every last liar, THIEF, MURDER, OCCUPIER, SNIPER, AND ASSASSIN, in the US Government on trial and put in prison for life. (and deny every attempt to overturn it.) In that way the scales would be balanced with the same injustice meted out.
I’m not a lawyer, and I could be wrong, but AFAIK the formality here is that their attorneys can’t stop them from testifying. True, the attorneys can’t – but the joke is that, insomuch as I understand it, a defense lawyer tells the sucker he represents that he can’t put him on the stand if what he will say is “suborning perjury”. So the person thinks the lawyer is his friend, tells him something, then the lawyer tells him no, he’s really just an officer of the court, and if he tells the court something other than the ‘private’ confidence he just gave to the lawyer, he’ll be called on it. And remember, the defendant could get asked anything! So I think if the sap told his lawyer that his brother knew about something he said, and he goes on the stand, then if the prosecutor asks him if his brother knew about it, and he says no, the defense rat might go “ahem” and makes a show of saying he can’t represent this client or something in such a way as to make it blatantly obvious to all present that the brother knew something, and then that guy is up for a prosecution. AFAIK nobody in the law is really on your side any longer than it takes for you to turn your back, at least, not unless you’re a mafioso or a celebrity or something (is there a difference?)
The ABA Rules of Professional Conduct state:
Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
An attorney may counsel his client not to testify if he knows that the client intends to offer perjurious testimony. If the client chooses to testify anyway, the lawyer can avoid violating the canons by, in the simplest way, allowing his client to testify in narrative. The client presents his testimony without the lawyer asking him questions. The lawyer is not adducing false testimony, and the client can say whatever he chooses.
But to bring this up makes me wonder why you believe these men would offer perjurious testimony, especially if you believe they committed no crime. If they intended to testify truthfully, this has no bearing whatsoever.
Well, to begin with, I’m not particularly confident they didn’t in some way intend a crime; I’m not the guy who wrote this article. The philosophy of “intent” is slippery business (explaining just how slippery would quickly cross every line of logic and decency and alienate even the most charitable listener, as this is actually not entrapment but witchcraft…). But even assuming their innocence, there are things – such as implication of third parties – that even an innocent person would reasonably lie about, in order to prevent others from being dragged into the affair. (This all dates back to McCarthy, and probably further)
If you make an argument that someone should lie under oath for a greater good reason (in your case to prevent others from being implicated), then you can have no objection when others lie under oath for other greater goods, like making sure terrorists are caught, or state secrets not revealed. How can you make an argument that sometimes lying under oath is ok and sometimes not? By what standard — yours, mine, whoever is testifying?
There’s a traditional standard, which I think some have misinterpreted badly, though I don’t necessarily understand every detail myself:
My sense is that breaking an oath is not necessarily a bad thing, but not necessarily a good one either; rather, it is better for people to reject oaths as a way of controlling society, because it they are indeed, just as scripture would tell us, a misleading practice. We know how often people, even police, lie under oath in courtrooms, and venerating “testimony under oath” as if that were foolproof is misleading. And there are times when someone makes a misstatement, or is accused of making a misstatement, and is unfairly punished simply because “an oath was broken”, as if the oath were the living thing we are here to protect, rather than the human being. The victims run the gamut from Mark Fuhrman to that girl who tried to get her rapist prosecuted in the infamous Franklin child abuse case. I don’t think it is harmful to take away the mystique of oaths.
The ABA Rules of Professional Conduct state:
Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
NOW try to look up the prosecutor’s duty to honestly represent the facts to the court – there aren’t any…….
ABA rules?? Justice Sotomayer (as an appellant judge) refused to hear the appeal of an innocent man because it was filed too late (later re-filed on other grounds – he was released)…..TRUTH – JUSTICE -the American Way….NO LONGER VALID.. Attorney General Holder refused to charge Wall Street executives then went back to work for Wall Street……Honest? or dishonest? ( OH, it was a complicated case)
Yes, sorry, you have to file an appeal within the time limit, unless you can show some reasonable cause why the time limit should not apply. So, she was appropriately applying the rules (not ABA rules, but the regulations of the court) – why is that a problem for you?
And what does AG Holder’s ethics have to do with this case? Nothing. It’s called a straw man.
I’m really sure – the definition of JUSTICE doesn’t have a time limit – –
JUSTICE DELAYED IS JUSTICE DENIED…….and excuses don’t cut the mustard……unless you want B.S. because that’s all they are. Next you can tell me how over-worked they are
as per Holder – you like excuses – and it raises questions of morality
I disagree with you, therefore I am immoral. Perhaps you could unstick your caplock key and try presenting some facts, rather than just firing off ad hominem attacks.
Are you proposing that there be no time limit whatsoever on appeals? And no statute of limitations on crimes?
And how can you claim that justice is delayed when it is the defendant who delayed filing the appeal? Isn’t that a little, I don’t know, ridiculous?
Of course there should be no time limit on appeals. If proof of innocence exists, there is no sophistry that can excuse keeping an innocent man in jail. There is no fancy piece of laminated metallated slick-sided cotton paper that can be signed by the right Governors and Presidents to say that you have the right to harm someone, such as by keeping him in jail, when you know full well there is no exceptional risk that he will harm others to a greater degree if you release him.
The statute of limit on charges is justifiable, however. There exists little evidence to begin with that putting a person in prison actually has a beneficial effect, either by reforming him or by deterring others. It is clear that not every criminal will go to prison, so the deterrent effect (if any) is not greatly decreased by losing a few more to time restrictions. And if the defendant has lived his life for a decade or more without other apparent crimes sealing his fate, then there is likely no urgent need at least to track him down and punish him either. Though of course the statute of limitations depends on the crime! All these things add up to make it very logical to set a maximum limit to prosecution, knowing that the risk of railroading an innocent defendant steadily increases even as any possible benefit steadily decreases with time.
You do understand that the outcome of most successful appeals is a new trial, right? So, if you can have appeals years after conviction, then you would necessarily have to have trials years after conviction, which you object to in your second paragraph. The time limit for appeals that you cited is not ironclad, as I said. If there are reasonable grounds for a late appeal, it can be granted. A simple example is newly discovered evidence. The ruling you objected to wasn’t in this category; there was no new evidence and the appeal was filed late simply because the defense didn’t bother to file on time. It simply allows an orderly progression and certainty for all parties: if there is to be an appeal, it must be filed by a particular date. If you had no limits of this type, there would be utter chaos.
By the way, the risk of conviction steadily diminishes the longer the trial is delayed. That’s easily provable with statistics from any venue in the US.
If there is a deadline for making an appeal, and the defendant fails to make it, then logically one of two things is true: a) he is not appropriately represented by counsel, or b) his counsel is not competent. Either way, he deserves to be able to make the appeal anyway. I don’t see what “chaos” is produced by having N+1 years to make an appeal rather than N, for any N.
There is a time limit because there needs to be, excuse me for using the word, closure on the case. Once the time for appeal has run out, evidence can be disposed of, paperwork can be put in inactive storage, and all the people involved can go about their current duties. If you had no limits, a defendant could claim a procedural error 50 years later. Where would you find the transcript, the court reporter, the presiding judge, and other paperwork and people that are required? There is no jurisdiction anywhere with open-ended appeals like you suggest.
And, if the attorney fails to timely file an appropriate appeal, that is an exception which can be waived through the time limits. There are very few cases where any appeal is warranted, you know; post-conviction appeals, even when filed, are rarely granted. The time limit just isn’t a problem, except in the rarest of cases. Ask someone familiar with criminal procedure and they’ll tell you all of this.
I don’t buy it. It’s not easy for an appeal to prevail, and I don’t think that you need to be able to track down every court reporter to adjudicate most of them. There should be common sense ways of making the appeal procedure recognize that a lot of time will have passed and things lost, which are better approximations to justice than simply saying no. And I don’t believe we can’t find room to put evidence in cold storage, I just don’t. If people think they can store all the nuclear waste in the country under Yucca Mountain for the next hundred thousand years, there has to be someplace to stuff old rape kits that won’t get wet or overheated.
It’s not the appeal, per se. You could change the rules and allow signed transcripts instead of having a reporter appear. You could simply say that if a mandatory participant is unavailable, you go on as if they were there, with any onus being on the appellant.
The problem comes if a new trial is ordered. If there is a procedural problem in the original trial, in 1970, and you have a retrial ordered, how do you round up witnesses, experts, prior counsel if needed? And how do you preserve all of that evidence. If you keep evidence forever, you would need many city blocks of storage in NYC alone. Evidence for active cases is housed in several million square feet of storage — just active cases. Multiply that by 75 years worth.
And you can’t store nuclear waste under Yucca Mountain. Not safely. That’s just a bad fairy tale.
I don’t see any reason why you have to either have a full retrial with evidence you don’t have, or else refuse to let a person who is clearly innocent go. An obvious answer is to have a “partial retrial”, i.e. the judge and jury go through all the transcripts and available evidence from the last case, then the defense gets to give its exculpatory data, the prosecution gets to rebut, give a couple more rounds of rebuttals, then have a verdict. No, it’s not perfect, but it’s a lot better than refusing to hear a case at all over a formality.
That might be sensible, but it’s not what the law requires. There are certainly ways to make retrials simpler and less costly in time and effort, but that hasn’t been done.
If you think things might be a little screwed up, remember: in a 6 to 3 majority opinion, the US Supreme Court held that actual innocence was not a bar to conviction. Read Herrera v Collins (1993). I couldn’t make that up; I’m neither that creative nor that crazy. Also, the same court believes WalMart is a person.
WHY is there a time limit if you are innocent?? Peter, sit in prison and tell them you are innocent….File an appeal that says you are innocent….. Then be told you are too late……
Sorry but you literally could not be more wrong. The Rules of Professional Conduct apply to EVERY attorney admitted to the bar in the US. Except for trivial cases, like minor traffic offenses, all prosecutors are attorneys; therefore, those exact rules apply to prosecutor, defense attorney, or an attorney appearing for a non-indicted party. So, nice smart remark, but completely wrong. Thanks for demonstrating your bias, though.
So, stating under oath in open court that they choose not to testify isn’t good enough? What exactly would satisfy to indicate that they had waived their right to testify? Help me out here, because I can’t figure out what else could be done. This is a shining example of frivolous appeal, without the least shred of basis in fact or law.
You clearly have not practiced criminal law, or been a defendant. When the defendants said this:
I can state with a high degree of confidence, based on both professional experience and knowledge of how criminal cases go, that this happened.
But far more important, is this:
Especially in light of:
An enlightened nation that holds itself out as a liberal Western democracy behaves other than that when all of the above occurs.
Regardless of whether they were, in fact, told by their attorneys that this was a mere formality, they were directly and explicitly informed that they had a right to testify and declined. The question I posed was, what more could be done. They were competent, both in intellect and sanity. They were presented with the opportunity to testify and they stated, under oath, that they chose not to. would you have the judge force them to testify? Explain again that they had that right? What more could be done? The answer, for any reasonable person, is: nothing. They had an unfettered and ample opportunity to testify and freely and deliberately chose not to . That’s why the appeal was denied. If you don’t understand that, you must have flunked CrimPro.
As for the rest of your argument, it has absolutely nothing to do with this appeal, which was on narrow grounds. Furthermore, none of what you said is legally compelling to reverse a verdict. If you are an attorney with any criminal experience, you know this.
You are asserting as fact — which I placed in italics — that which is disputed. You have not explored what the lawyer’ told their clients to utterly vitiate any formalities that went in the the courtroom.
As for this:
The article is not only about the appeal. It is also about the monstrous law enforcement behavior, and legal deference to it, that allows cases like these to continue and lead to convictions.
I can dispute the laws of gravity, but that would make no more sense than this.
In open court, these men were individually informed that they had a right to testify in their own behalf and they declined to exercise that right. Unless you have a different transcript, that is beyond dispute. Unless you can show that they were incompetent, or under duress not to testify, in our judicial system, that constitutes free and deliberate choice. They were free to accept or reject their lawyers’ advice not to testify.
And again I ask, what else could be done? Would you have them be forced to testify? Questioned as to their lawyers advice or the reason for their refusal to testify? Or what?
As for more factless whining about the horrible police and the evil court, that got no traction in the trial, or on appeal, or with the public. And there seems no further avenue of appeal, as the attorney plans to continue “mainly in the public arena.” If you have no facts, just yell louder.