Category Archives: Major Print Outlets

Stuart Taylor, Jr.’s media appearances in print publications.

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The Sentencing Tail Wagging the Guilt Dog

by Stuart Taylor, Jr.

For the jury, it was a close call whether to find Rene Rodriguez guilty of selling any marijuana at all.

On the third day of deliberations, the jurors told the judge that they were unable to reach a unanimous verdict. But finally, after being given an Allen charge, they brought in a conspiracy conviction. It was apparently based on prosecution evidence implicating Rodriguez in a 10-ounce marijuana sale, together with the judge’s instruction that all the jury had to find to convict was that Rodriguez had conspired to sell a "measurable" amount.

The sentence: life without parole.

How’s that? Rodriguez would have faced only 18 months in prison, increased to 4 1/2 years by his two prior drug convictions, if his sentence had been based on the 10-ounce sale that was proven beyond a reasonable doubt at trial.

What jacked his sentence up to life without parole, under as-early "three strikes and-you’re out" statute enacted by Congress, was a finding by the judge, at the post-verdict sentencing hearing, that Rodriguez had probably conspired to sell more than 1,000 kilograms of marijuana, not just 10 ounces.

He probably had. But the judge, Thomas Curran of the U.S. District Court in Milwaukee, did not suggest that this had been proven beyond a reasonable doubt, or even by clear and convincing evidence. Nor did the prosecution claim to have that kind of proof.

Rather, under the current federal sentencing regime, the prosecution had to prove only that it was more probable than not that Rodriguez had sold 1,000 kilograms, in order to condemn him to die in prison.

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When Separate and Equal Makes Sense

by Stuart Taylor, Jr.

The Supreme Court seems likely to rule this year that the Virginia Military Institute’s long-standing exclusion of women denies them the equal protection of the law. Maybe the Court should.

But the most important thing about the case (United States v. Virginia, set for oral arguments on Jan. 17) is not the future of VMI. It is, rather, the threat to the future of all public single-sex education-and even private single-sex education-posed by the unwise legal doctrines now being urged upon the Court by VMI’s main adversaries.

The Clinton Justice Department and some liberal feminist and civil rights groups are seeking an unprecedented holding that all gender classifications are subject to the same "strict scrutiny" under the equal protection clause as racial classifications.

Such a ruling would (among other things) allow single-sex educational programs only if "narrowly tailored" to serve a "compelling governmental objective." In practice, it would erect a virtually insuperable constitutional barrier to any form of public single-sex education, for men or for women.

And this at a time when evidence is rapidly accumulating that single-sex schools, colleges, and classes within coed institutions bring out the best in many students-especially adolescent girls and college-age women, many of whom flourish in women’s colleges and in all-female math and science classes in coed schools.

Although the Clinton administration feebly denies any agenda to prohibit public (or private) single-sex education, it suggests in the same breath that any single-sex program can be justified only by a "compensatory purpose." That’s code language for an affirmative action, redress-for-past-discrimination, double standard that might allow some single-sex programs for females, but not for males.

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Probably Innocent, Almost Executed

by Stuart Taylor, Jr.

Now and then a case comes along that tells us a lot about how close we are coming to executing innocent people in this country, and in substantial numbers-and about what will happen if Congress completes the evisceration of the writ of habeas corpus that is already under way in the Supreme Court.

One such case is that of Missouri death row inmate Lloyd Schlup. It took a revealing turn on Dec. 8, when a federal district judge found Schlup to be probably innocent-in the sense that "no reasonable juror would have convicted [Schlup] in light of the new evidence" now in the records-of the 1984 prison murder of which he was convicted. (Schlup was already in prison for two other crimes of (nonfatal) violence.) The judge found credible the recent testimony of 11 eyewitnesses and two alibi witnesses that Schlup was not even present during the murder.

This holding, by Judge Jean Hamilton of St. Louis (a George Bush appointee), is remarkable in several ways:

• The same Judge Hamilton had previously pushed Schlup down the track toward the death chamber without bothering to hold an evidentiary hearing in an August 1993 decision spurning his habeas appeal and vacating his stay of execution.

• Schlup would probably have been executed years ago if the habeas corpus "reforms" that were passed last year by both the Senate and the House (in somewhat different forms) had been in effect.

• Schlup would surely have been executed by now but for the efforts of his first good lawyer, Sean O’Brien of Kansas City, Mo., who did not get the case until six years after Schlup’s December 1985 conviction-and whom Congress is trying to put out of business.

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Why This District Should Be Upheld

by Stuart Taylor, Jr.

The ridiculous-looking, 50-percent black congressional district in Dallas County, Texas, depicted on this page, was drawn in 1991 for the explicit purpose of creating a safe black seat (for one Eddie Bernice Johnson) in Congress.

Its geometry makes it one of the most irregularly shaped congressional districts in the nation, as was pointed out on Dec. 5, when the Supreme Court heard oral arguments in this term’s two big racial-gerrymandering cases.

(They are Bush v. Vera, in which a lower court struck down the Dallas district, along with one majority-black and one majority-Hispanic district in the Houston area, and Shaw v. Hunt, in which a lower court upheld two majority-black districts in North Carolina.)

Justice Sandra Day O’Connor-the swing voter who will almost surely determine the outcome of both cases-sounded like she was itching to strike down most or all of these five districts. But in the case of the Dallas district pictured here (District 30), that would be a mistake.

I don’t like uncouthly shaped, race-based districts either. Nor do I like it when (as here) the weirdness of the shape is largely attributable to the self-serving efforts of politicians to draw safe districts for themselves. But the Dallas district should nonetheless stand.

This is not to say that the Court should give states carte blanche to engage in unrestrained racial gerrymandering to increase minority representation. Nor is it to fault the Court’s June 29,1995, decision (in Miller v. Johnson) striking down as a racial gerrymander a majority-black district that had been improperly forced on the state of Georgia by the Justice Department, in the department’s headlong pursuit of proportional representation at all costs.

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Fixing Criminal Justice: Adversary Excess

by Stuart Taylor, Jr.

American legal lore would have it that our adversarial (or "accusatorial") criminal justice system is far superior to the "inquisitorial" model of continental Europe-as an engine of truth, as a shield for civil liberties against state power, as an embodiment of the paramount importance of avoiding wrongful conviction of the innocent.

Many of us are taught (erroneously) that, in Europe, defendants are presumed guilty, can be forced to confess, and can be convicted without anything like proof beyond a reasonable doubt.

And something about that word "inquisitorial"-conjuring images of some medieval Grand Inquisitor torturing confessions out of accused heretics-conditions American lawyers (and justices) to recoil from any thought of modifying our adversarial tradition by taking even a tiny step toward the procedures used by the rest of the civilized world.

Evidence is accumulating, however, that our adversarial system has degenerated into a parody of itself-which in many cases seems almost calculated to subvert the search for truth. And there’s much to be said for the European approach, including that of England, where the criminal process has evolved in far less adversarial directions than our own since 1776.

A good case can be made that the procedures used in Germany, Holland, Scandinavia, France, England, and elsewhere do a better job than our own not only in terms of finding the truth and convicting the guilty, but also in terms of protecting innocent defendants-supposedly our forte. Comparative analysis also reinforces the view that some of our vaunted procedural protections not only help the guilty, but also have perverse secondary effects mat hurt the innocent.

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Guilty and Framed

by Stuart Taylor, Jr

The American Lawyer

Death row celebrity journalist Mumia Abu-Jamal got an unfair trial before a biased judge. His "confession" was probably fabricated by police, who may have rigged other evidence too. But he is also – probably – an unrepentant cop-killer. So what now?

You’ve probably heard about the current darling of the radical-chic crowd and the America-bashing European intellectual set: Mumia Abu-Jamal, a convicted cop killer seeking to parlay his literary and black militant credentials into a ticket off death row.

In a full-page advertisement in the August 9 New York Times, 112 writers, actors, politicians, and others declared: "There is strong reason to believe that as an outspoken critic of the Philadelphia police and the judicial and prison systems, Mumia Abu-Jamal has been sentenced to death because of his political beliefs." The signers included the likes of director Oliver Stone, actors Mike Farrell and Paul Newman, Professor Derrick Bell, and the same Norman Mailer who helped free killer-author Jack Henry Abbott, who killed again.

Cornel West compares Jamal with Martin Luther King, Jr. Jesse Jackson compares him with Nelson Mandela (who has asked that Jamal be spared). And Jamal’s book, Live from Death Row, has helped make him an international cause cÈlËbre, selling more than 50,000 copies since May.

What you would not know from such stuff is that the evidence shows that Jamal is probably an unrepentant killer, who on December 9, 1981, stood over 26-year-old Daniel Faulkner and put a bullet between his eyes while the already wounded officer lay helpless on his back.

So why the big hoo-hah about this character? Is it just the old radical conceit that any black guy who shoots a white cop can’t be all bad, especially if he is a "revolutionary" with the Black Panthers on his resume, long dreadlocks, an engaging smile, and a way with words?

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Fixing Criminal Justice: Jury Reform

by Stuart Taylor, Jr.

"We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding 12 men every day who don’t know anything and can’t read." -Mark Twain

Some good could yet come of the O.J. Simpson trial, though many lawyers and judges are bent on preventing it.

That something is the kind of fundamental reform of our dysfunctional criminal justice system that could be fueled by public outrage at the Simpson trial and acquittal-not to mention the trials of the Menendez brothers, Lorena Bobbitt, the Rodney King cops, and Reginald Denny’s assailants.

Such reform won’t come easily, both because the public may seize upon illusory cures like non unanimous jury verdicts and because the prospect of any reform at all spurs knee-jerk opposition from many lawyers by threatening to unsettle roles in which they have grown prosperous and comfortable.

"What people should understand," such lawyers are wont to say, "is that the Simpson case was entirely atypical, skewed by the ability of a wealthy defendant to pull out all the stops, and by the inability of a wishy-washy judge to move things along. In most cases, the system works well."

It’s true that this was an atypical case. It’s not true that the system usually works well. The problems are simply stated: Our criminal justice system convicts the innocent too often, acquits the guilty (especially the wealthy guilty) far too often, punishes many nonviolent criminals too harshly, rewards tactics aimed at distorting the facts and obfuscating the truth, is choking on waste and inefficiency, and is held by much of the public in justifiable disrepute.

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Lame Journalism Makes Bad Law

by Stuart Taylor, Jr.

"Freedom’s just another word for nothing left to lose," as Janis Joplin sang it most memorably in "Bobby McGee." With billions of dollars to lose, big news organizations don’t seem to feel so free anymore, at least when it comes to exposing corporate misconduct. On the other hand, some of these mega-businesses seem all too free about taking advantage of their sources.

Consider these recent examples:

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Captives of the Cops

by Stuart Taylor, Jr.

What do FBI Director Louis Freeh, Attorney General Janet Reno, former Philadelphia Mayor W. Wilson Goode, Los Angeles prosecutor Marcia Clark, and just about every big-city police chief in the nation have in common?

Hint: Ruby Ridge, Waco, a police helicopter’s fatal firebombing of a Philadelphia row house, detectives Mark Fuhrman and Philip Vannatter, and "testilying."

The common thread is that those who are supposedly running our law enforcement organizations are, in fact, more often run by them. They are prisoners of the lies frequently told by people ranging from cops on the beat to high-level officials at the Federal Bureau of Investigation. They also feel pressure to secure their own standing with their troops, and to bolster morale, by pretending that police lying, brutality, racism, and corruption are less widespread than they are.

Examples:

• Freeh’s promising start in 1993 has been derailed by his blindness to an apparent FBI cover-up of high-level responsibility for the fatal fiasco at Ruby Ridge, Idaho, in August 1992. Freeh initially decided not to dismiss any of those who helped craft illegal, shoot-on-sight rules of engagement and to limit discipline of his close friend, Larry Potts, to a wrist-slap censure. In a March 7 letter to Deputy Attorney General Jamie Gorelick, Freeh wrote:

[F]or you to increase the proposed discipline [of Potts] inevitably sends the wrong message to both the public and the employees of the FBI…. It will also lead to the implication that the FBI and the [Justice] Department dispute the credibility of the employees involved [including] Mr. Potts… [I]t is likely to do profound damage to the relationship between the Department and the FBI [and] be perceived by the rank and file of the FBI as an unjustified attack.

Freeh also warned that Gorelick’s proposal to give Potts a 30-day suspension would cause "damage to my personal credibility."

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Clinton: Jailing the Ghetto for Votes

by Stuart Taylor, Jr.

"Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question," Alexis de Tocqueville wrote in 1835.

And these days, it sometimes seems, scarcely any judicial question arises that is not resolved, sooner later, into a racial question.

So it is that the draconian federal penalties for nonviolent drug offenses have finally attracted a bit of public notice-not because they are called "savagely severe" by people like Richard Posner, the Reagan-appointed judge of the U.S. Court of Appeals for the 7th Circuit, but because they are called racist by people like Jesse Jackson.

Some of these penalties are racist. But that’s not the heart of the problem. The heart of it is that Congress has adopted-and President Clinton and his equally gutless attorney general, Janet Reno, are perpetuating-a regime of grotesquely excessive mandatory minimum prison terms for drug defendants of all races.

This regime has wrecked the lives of thousands of small-time, nonviolent drug offenders. It has done little to dent the drug problem; makes no sense as policy; and is being maintained by politicians for the most cynical of political reasons.

The especially egregious unfairness of one aspect of this sentencing regime-its requirement that each gram of crack cocaine be treated as though it were 100 grams of powder cocaine-was obliquely acknowledged both by Clinton, in his Oct. 30 announcement of his deplorable decision to reject the U.S. Sentencing Commission’s proposal to eliminate the 100-1 ratio, and by Reno, in an Oct. 26 press conference.