Enough!

March 12, 2012

On March 1st, Tom Engelhardt (TomDispatch) published an interview at MyFDL on Firedoglake of journalist Jonathan Schell by Andy Kroll. Nonviolent revolution was the subject matter of the interview. The article passed off the conveyor belt without comment, which I find remarkable. I do not believe it even made the recommended list, let alone being front-paged at MyFDL.

You can read the article here.

During the interview, Schell reviewed successful revolutions that defeated and in some cases toppled empires and totalitarian governments. In each case, beginning with our war for independence against Great Britain, he described how the outcome was assured by first winning the hearts and minds of the people through a variety of nonviolent means, including the power of the pen and nonviolent public demonstrations against authority. In many cases, for example the French Revolution and the Bolshevik Revolution, the majority of the violence and killing happened during the scramble for power after the governments fell.

JS: . . . Usually the cliché is that the stage of overthrow is the violent part, and the stage of consolidation or of setting up a new government is post-violent or nonviolent. I discovered it to be just the other way around.

AK: On this subject, as your book makes clear, some re-teaching is in order. We’re so conditioned to think of overthrow as a physical act: knocking down the gates, storming the castle, killing the king, declaring the country yours.

JS: In a certain sense, overthrow is the wrong word. If you overthrow something, you pick it up and smash it down. In these cases, however, the government has lost legitimacy with the people and is spontaneously disintegrating from within.

AK: As you note [in your book, The Unconquerable World], the Hungarian writer György Konrád used the image of an iceberg melting from the inside to describe the process.

JS: He and actually the whole Solidarity movement had already noticed how Franco’s cryptofascist regime in Spain sort of melted away from within and finally handed over power in a formal process to democratic forces. That was one of their models.

Schell’s point is that in order to win a revolution, one must first win the hearts and minds of the people and one cannot accomplish that task at the point of a gun. He calls Ghandi the Einstein of Revolution because Ghandi was the first person to realize and intentionally use nonviolence as a strategy to bring down an empire. Ghandi used that tactic, in effect paralyzing the British, on September 11, 1906, at The Empire Theater in Johannesberg, South Africa. Here is Ben Kingsley as Ghandi recreating one of the greatest moments in people power and the history of revolution.

Spring is the time for new beginnings.

The American Empire is rotten to the core and cannot be saved.

Revolution is an idea whose time has come

Spread it

Demonstrate

And melt it from within.


Does A Seven-Year-Wait Behind Bars Violate The Sixth Amendment Right To A Speedy Trial?

March 9, 2012

What were you doing in March, 2005?

On February 27, the Georgia Supreme Court denied Khanhn Dinh Phan’s request to dismiss the death penalty case pending against him. Such an order under ordinary circumstances would not merit comment, but these are not ordinary circumstances. Khanh Dinh Phan has been locked up in the Gwinnett County Jail in Georgia for seven years without a trial.

In addition to rejecting his argument that the State of Georgia has violated his Sixth Amendment right to a speedy trial (See: Barker v. Wingo, 407 U.S. 514 (1972); Strunk v. U.S., 412 U.S. 434 (1973)), the Court removed his court-appointed counsel and appointed new counsel over his objections, even though his lawyers did not cause the delay in bringing him to trial and did nothing wrong. In fact, they did what they were required to do and what I would have done if I had been representing Mr. Phan in order to provide him with effective assistance of counsel, which is what the Sixth Amendment requires (See Gideon v. Wainwright, 372 U.S. 335 (1963); Strickland v. Washington, 466 U.S. 668 (1984)).

The Facts

Mr. Phan is charged with intentionally killing Hung Thai and his two-year-old son by shooting them in the head execution-style, allegedly as punishment for Hung Thai’s failure to pay a gambling debt. Mr. Thai’s wife, Hoangganh Ta, was also shot in the head, but she survived and returned to live in Vietnam after emerging from a coma seven months after the shooting. She has identified Mr. Phan as the shooter and she also provided law enforcement with information regarding the alleged motive.

The trial court appointed two lawyers to represent Mr. Phan, which is standard operating procedure in a death penalty case. The two lawyers were Chris Adams, who was the Director of the Georgia Capital Defender’s Office at that time, and Bruce Harvey, a lawyer in private practice.

The Pretrial and Mitigation Investigation

Adams and Harvey did what any qualified and experienced death-penalty lawyers would have done in this case. After establishing a relationship of confidence and trust with their indigent client, they asked the trial court to authorize the expenditure of reasonable funds to travel with an investigator to Vietnam to interview Hoangganh Ta about the homicides and to interview members of Mr. Phan’s family, friends, and others who knew him in Vietnam such as neighbors, teachers, employers, counselors, and doctors who might have provided him with medical treatment. The former is routine pretrial investigation that should be conducted in any case and the latter, which we call mitigation investigation, is required in all capital cases so that no stone is left unturned in the effort to discover evidence about the defendant, or the circumstances of the crime, that might in fairness or mercy potentially cause a juror to vote for a sentence of less than death (See Porter v. McCollum, 130 S.Ct. 447 (2009)).

The mitigation investigation must be conducted prior to trial, which is necessarily before the defendant has been acquitted or convicted, because, if the defendant is convicted, the case would proceed to a sentencing phase immediately after the jury returned the guilty verdict, or within a few days, not allowing sufficient time to conduct the investigation. Clients rarely understand the necessity to pry deeply into their past history and relationships searching for clues to explain seemingly unexplainable homicidal behavior that they are adamantly denying. They regard the investigation as a form of rape and it is very difficult for the lawyers to establish a relationship of trust and confidence when the client wants to hear the lawyer say, “I believe you when you say you are innocent and I will do everything that I possibly can to win this case.”

This tension explains why a death-penalty case is much easier to handle, if the client admits guilt. Most clients, however, deny guilt inevitably generating conflict in the attorney-client relationship over the necessity for and wide ranging scope of the mitigation evidence. From the results of post-conviction DNA testing and reinvestigation, we now know for certain that a significant percentage of death-penalty defendants are innocent (approximately 20%). The attorney-client conflict generated by the mitigation investigation is an additional, but no less valid reason to abolish the death penalty.

In this case, Mr. Phan’s lawyers appear to have navigated successfully through the minefield.

Gwinnett County Cannot Afford To Pay For What The Law Requires

Mr. Phan’s case went off the rails when Gwinnett County could not afford to pay for the trip to Vietnam. Defense counsel could not agree to forego the necessary trip and they could not reasonably or legally be expected to finance the trip themselves.

Contrary to long established United State Supreme Court precedent, Gwinnett County also refused to pay for a defense expert regarding the effect of gunshot injuries to the brain on memory (Cf Ake v. Oklahoma, 470 U.S. 68 (1985)).

Since defense counsel could not adequately prepare for trial, the trial could not go forward. And so, Mr. Phan languished and continues to languish in jail waiting for his day in court, a day that may never come.

The Georgia Supreme Court’s Decision

Notwithstanding the passage of seven years without a trial, due to the trial court’s failure to pay for reasonably necessary defense costs to prepare for trial that it is required to compensate (Cf, Ake v. Oklahoma, 470 U.S. 68 (1985) and its progeny), the Georgia Supreme Court not only refused to dismiss the case for violation of Mr. Phan’s right to a speedy trial, it aggravated the situation by dismissing his lawyers replacing them with public defenders who will cost less because they are already paid a salary, regardless of how many hours they work, rather than an hourly wage.

Rather than requiring the Gwinnett County Circuit Court to pay the necessary and reasonable expenses for counsel to defend Mr. Phan, an obligation imposed by long-standing United States Supreme Court precedent, the Georgia Supreme Court fashioned a ‘solution’ to save money by destroying an existing attorney-client relationship by appointing new lawyers. Presumably, the Court believes that the financial savings can free-up sufficient funds to pay for the reasonably necessary expenses that must be paid for the trial to go forward.

Whether and when that will happen is anybody’s guess.

Conclusion

The prosecuting attorney in Gwinnett County should not be seeking the death penalty in a case when the circuit court cannot afford to pay for the reasonably necessary expenses to defend the case.

Ultimately, of course, it is the State of Georgia’s responsibility to budget and pay for the reasonable and necessary expenses that the county circuit courts must pay to fund indigent defense. Death penalty cases are expensive and, if Georgia wants to kill people, then Georgia must bear the cost of prosecuting, defending, and killing them.

Savaging and scavenging a successful seven-year attorney-client relationship to free-up money to pay for reasonably necessary defense expenses is a willful and intentional destruction of Mr. Phan’s right to counsel and a gross denial of his right to a speedy trial — all of which has been done to fund a robbing-Peter-to-pay-Paul scheme.

The Georgia Supreme Court’s decision is little more than a variation of the Ponzi Scheme. That it would employ such a tactic to kill someone speaks volumes as to its regard for the United States Constitution, the Sixth Amendment, and the Rule of Law.

If the right to a speedy trial means anything, it means that no one should be forced to rot in jail for seven years without going to trial. After all this time, he is no closer to trial than he was after he was arrested in 2005.

Shameful and disgusting.

For additional information, see John Rudolph’s article at the Huffington Post.


Obama’s Vile Assassination Doctrine

March 7, 2012

President Obama’s assassination doctrine is a blatant violation of the Fifth Amendment and an insult to everyone who believes in due process of law, the rule of law, and the Constitution. No one is above the law, especially the President. That he would think and proclaim otherwise, says volumes about his arrogance and ignorance.

Attorney General Eric Holder delivered a speech at the Northwestern University School of Law purporting to justify the assassination doctrine as an acceptable form of non-judicial process that has never been reviewed, much less approved, by a court of law. Worse, the administration refuses to share and discuss the legal memorandum upon which Mr. Holder and Mr. Obama rely in claiming the assassination power.

As with everything else in this secretive administration, we are supposed to shut-up and trust them. I refuse to do so.

Support for the death penalty in this country has declined substantially due to the hundreds of innocent people wrongfully convicted and sentenced to death. Why would anyone think that the President should be trusted to get it right when he targets someone for assassination, if our criminal justice system and its vaunted trial by jury so often gets it wrong? What is to stop a president from targeting a political rival or a Reverend Martin Luther King, Jr. for assassination?

Nothing. The person is assassinated and we the people are never provided with an explanation. Absent a whistleblower, and we all know how much this president loves and welcomes whistleblowers, we would never know the president ordered the hit, much less why. Indeed, one might reasonably suppose that he or she would be next, if they asked too many questions.

I am truly disgusted and alarmed beyond words by this development. Under no circumstances will I vote for Barack Obama or any other candidate who supports his assassination doctrine.


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