Saturday, April 14, 2007

History lessons

Boys and girls, if Spotty and MNO's little offerings about the law ever leave you thirsting for more—well, it could happen—Spot has just the place for you. There is a blog authored by several law professors that —

[hysterical laughter] What are we gonna read about, Spotty? The rule against perpetuities? The modern exceptions to the hearsay rule? Or maybe learn how to plead a case in replevin, so that we can get the lawn mower back from the neighbor? Be serious.

You're so smart, aren't you grasshopper. Well, here's part of a post from Scott Horton at Balkinization, the blog that Spot was trying to tell you about:

So much of what has happened over the last six years seems a repetition of events drawn from English history, from the turbulent years from the Civil War to the Glorious Revolution - this could be said of the struggle over habeas corpus, which was right at the center of the conflict between Parliament and king, as seen in the Five Knights case of 1627 or the Shipmaster's tax case of 1637. But the notion of secret legal proceedings, closed courts and the use of secret evidence also characterize that period of history. Before the English Civil War, court proceedings were frequently closed, and one of the principles of fair process introduced in the Commonwealth - it seems to have been an initiative of the solicitor general, John Cooke - was the notion that no court should conduct its hearings behind closed doors, and neither should any evidence be taken which could not be shared with the public and presented to the defendant and the jury.

The key case for this notion involved a man commonly called "Freeborn John," or John Lilburne. He was a person of little formal education who became a firebrand pamphleteer among the Puritans in the years of the Civil War. He had republican sentiments, but more to the point he was a sharp critic of the king's justice - writing constantly of the aspects which were, well, unjust. He was particularly outraged by the use of the king's courts to persecute dissenters, as the Anglicans called them – though at the time this would be a changing blend of Puritans, Calvinists, Baptists and Quakers; not to mention the "terrorists" of the day, the Catholics. Lilburne had been convicted in the Star Chamber in 1638 on a charge of importation and dissemination of unregistered religious tracts. He wrote a compelling account of his treatment – he had been imprisoned for refusing to answer questions and then flogged, pilloried and gagged – but he also described the use of coercive interrogation techniques to extract a confession, the denial of rights of confrontation, the fact that his judges were all political figures placed there to do their king's bidding – the Star Chamber, you see, was to Lilburne's age what the Military Commission is to ours.

His account was an instant bestseller and provided much of the impetus for the abolition of the Star Chamber by the Long Parliament in 1641. As Uncle Tom's Cabin was to abolition, Liburne's book was to habeas corpus and the Star Chamber. Lilburne served with distinction as an officer during the Civil War, and afterwards his advocacy of Republican virtues caused Oliver Cromwell a bit of discomfort, and at length Cromwell decided to silence Lilburne by charging him with treason. The trial convened in October 1649, which is to say just months after the second Civil War had been successfully concluded for the Parliamentary forces.

Here's what Professor Horton says about that treason trial:

This was in effect the second significant trial for the Commonwealth after the trial of King Charles himself in January. Lilburne was a popular figure in London and was well aware of that fact. When the court proceedings commenced behind closed doors in the Painted Chamber of Westminster, Lilburne opened his answer to the charges read in court with these famous words: "The first fundamental liberty of an Englishman is that all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred." Lilburne was raising a direct challenge to the reputation of the Commonwealth courts – asking whether one of the most abusive of the practices of justice under the Stuart monarchs would be continued. The court fully understood this and directed that the doors be opened, in order that "all the world may know with what candour and justice the court does proceed against you." [italics are Spot's]

In the balance of that remarkable case, Lilburne established a number of other principles. The prisoner in the dock was to be treated with dignity and respect, not dragged before the court in manacles and an orange jumpsuit. There were to be no ex parte communications between the counsel and the court. He was to have a right to confront all evidence against him (that is, there could be no secret evidence), and the public also was to be allowed to hear it, to form its own opinion of the quality of justice dispensed by the court. He was guaranteed the right of counsel, and for the first time, counsel were permitted to participate in the presentation of evidence for the defense as well.

Liburne was acquitted, in spite of some genuinely unhelpful instructions from the judge.

Professor Horton goes on to say that secrecy and torture go hand in hand. He then produces excerpts from transcripts of hearings involving Guantanamo detainees to illustrate his point. It's well worth your attention, boys and girls.

But not only does torture go with secrecy, boys and girls, so does more prosaic knavery, which brings us back to the installation of political operative Rachel Paulose as U.S. Attorney in Minneapolis. You all remember the trial and conviction of Dean Zimmerman, a former Minneapolis Councilman, for bribery, don't you? There were some videotapes shown at the trial, tapes that were critical in Zimmerman's conviction. Ken Avidor, who saw the tapes at the trial, wants them released, but the government doesn't want to give them up. Why? Ken will tell us:

I tried to get information about the release of the FBI tapes from the Gary Dean Zimmermann bribery trial, but my most recent phone call was not returned.

I saw the FBI tapes at the trial. I believe that the portions of those tapes shown at the trial should be released to the media. There are still quite a few people who believe the FBI "persecuted" Zimmermann and that Zimmermann was somehow "entrapped" by the FBI.

The tapes would also reveal a side of Zimmermann that few people could imagine.... Zimmermann's comfortable relationship with a Hummer-driving Republican who raised considerable cash for Senator Norm Coleman.

Zimmermann was caught on tape accepting and receiving bribes from Republican Gary Carlson who raised thousands of dollars for Senator Norm Coleman. At one point in the tapes, Zimmermann told Gary Carlson that he would have like to have been invited to Carlson's fundraiser for Norm Coleman:

In May 2005 Azzam invited Carlson to a Shriner's function for African-American businesses (Azzam had told him it was the Sierra Club on Park Avenue). Carlson had a private conversation with Zimmermann outside when Carlson took a cigarette break. Carlson mentioned he had recently had a fundraiser for Norm Coleman at his house; Zimmermann chided Carlson for not inviting him. Carlson replied by saying he didn't think Zimmermann [as a Green] would want to attend a Republican fundraiser.

Zimmermann responded by saying, "Liberals, Greens, Democrats, Republicans…it's all money." [italics are Spot's]

There have been questions raised for years about the extent to which Republicans were funneling money to Green Party candidates to siphon off votes from the DFL. Distribution of this evidence—produced in open court—on, say, YouTube might be expected to shine an unfavorable light not only on Zimmerman, but also the Coleman fundraiser. The videotapes are clearly subject to production under the FOIA, but don't you think that Rachel Paulose has a motive for sequestering them?

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