The weekend before Thanksgiving, as the Taliban fled into the Hindu Kush and America’s children flocked to Harry Potter, the nation’s opinion formers discovered that the Bush administration had hijacked the Constitution with the Patriot Act and the military tribunals. Time magazine burst out that “war is hell on your civil liberties”. The New York Times suddenly began to run big news stories about John Ashcroft as if he was running an off-the shelf operation, clandestinely consummating all those dreams of Oliver North back in Reagan time about suspending the Constitution.
On November 15 the Washington Post’s Richard Cohen discarded his earlier defenses of Ashcroft, and declared the US attorney general to be “the scariest man in government”. Five days earlier, The New York Times editorial was particularly incensed about suspension of client-attorney privileges in federal jails, with monitoring of all conversations. For the Hearst papers Helen Thomas reported on November 17 that Attorney General Ashcroft “is riding roughshod over the Bill of Rights and cited Ben Franklin to the effect that “if we give up our essential rights for some security, we are in danger of losing both.”
In this outburst of urgent barks from the watchdogs of the fourth estate, the first yelp came on November 15, from William Safire. In a fine fury Safire burst out in his first paragraph that “Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power.” Safire lashed at “military kangaroo courts” and flayed Bush as a proto-Julius Caesar.
On the same day, November 15, from Britain, whose traditionally appalling emergency laws are now being rendered even more faithful to the vicious tradition of the Star Chamber, the Economist chimed in that Ashcroft’s new laws and DoJ rules are “drastic”, “unnecessary” and “not the way to fight terrorism”. Infringements of civil rights, the Economist declared, “if genuinely required, should be open to scrutiny and considered a painful sacrifice, or a purely tactical retreat, not as the mere brushing aside of irritating legal technicalities. Those who criticized such measures should be given a careful hearing, even if their views must sometimes be overridden.”
Even mainstream politicians began to wail about the theft of liberty. Vermont’s independent senator Jim Jeffords proclaimed on November 19 that “I am very concerned about my good friend John Ashcroft. Having 1000 people locked up with no right to habeas corpus is a deep concern.” Jeffords said that he felt that his own role in swinging the Senate to Democratic control was particularly vindicated because it had permitted his fellow senator from Vermont, Democrat Patrick Leahy, to battle the White House’s increase of police powers, as made legal in the Terrorism bill.
Speak memory! It was not as though publication on November 13 of Bush’s presidential order on military courts for Al-Qaeda members and sympathizers launched the onslaught on civil liberties. Recall that the terrorism bill was sent to Congress on September 19. Nor were the contents of that proposed legislation unfamiliar since in large part they had been offered by the Clinton administration as portions of the Counter-Terrorism and Effective Death Penalty Act of 1996. Well before the end of September Ashcroft’s proposals to trash the Bill of Rights were available for inspection and debate.
At the time when it counted, when a volley of barks from the watchdogs might have provoked resistance in Congress to the Patriot bill and warned Bush not to try his luck with military tribunals there was mostly decorum from the opinion makers, aside from amiable discussions of the propriety of torture. Taken as a whole, the US press did not raise adequate alarums about legislation that was going to give the FBI full snoop powers on the Internet; to deny habeas corpus to non-citizens; to expand even further warrantless searches unleashed in the Clinton era with new powers given in 1995 to secret courts. These courts operated under the terms of the Foreign Intelligence Surveillance Act passed in the Carter years, in 1978.
In the run-up to Bush’s signing of the USA Patriot Act on October 25, the major papers were spiritless about the provisions in the bill that were horrifying to civil libertarians. It would have only have taken a few fierce columns or editorials, such as were profuse after November 15, to have given frightened politicians cover to join the only bold soul in the US Senate, Russell Feingold of Wisconsin. Now it was Feingold, remember, whose vote back in the spring let Ashcroft’s nomination out of the Judiciary Committee, at a time when most of his Democratic colleagues were roaring to the news cameras about Ashcroft’s racism and contempt for due process. The Times and the Post both editorialized against Ashcroft’s nomination.
But then, when the rubber met the road, and Ashcroft sent up the Patriot bill, which vindicated every dire prediction of the spring, all fell silent except for Feingold, who made a magnificent speech in the US Senate on October 25, citing assaults on liberty going back to the Alien and Sedition Acts of John Adams, the suspension of habeas corpus sanctioned by the US Supreme Court in World War One, the internments of World War Two (along with 110,00 Japanese Americans there were 11,000 German Americans and 3,000 Italian Americans put behind barbed wire), the McCarthyite black lists of the 1950s and the spying on antiwar protesters in the 1960s. Under the terms of the bill, Feingold warned, the Fourth Amendment as it applies to electronic communications, would be effectively eliminated. He flayed the Patriot bill as an assault on “the basic rights that make us who we are.” It represented, he warned, “a truly breath-taking expansion of police power.”
Feingold was trying to win time for challenges in Congress to specific provisions in Ashcroft’s bill. Those were the days in which sustained uproar from Safire or Lewis or kindred commentators would have made a difference. So the USA Patriot Act passed into law and Feingold’s was the sole vote against it in the Senate. Just like Wayne Morse and Ernest Gruening in their lonely opposition to the Gulf of Tonkin resolution in 1964 he’ll receive his due, and be hailed as a hero by the same people who held their tongue in the crucial hours. Instead, as Murray Kempton used to say of editorial writers, they waited till after the battle to come down from the hills to shoot the wounded.
Several weeks ago in Massachusetts, acting Governor Jane Swift approved a bill that exonerates the accused witches hung in 1692 and 1693 during the Salem Witch Trials. The women were the last of the 20 victims to be cleared by the legislature since their executions more than three centuries ago. Although the descendants of the victims are elated, the decision comes a little too late for the twenty-four men and women who were hanged, crushed to death or died in prison during the witch-hunt.
All 20 of the guilty verdicts were based on the testimony of four young girls who decided to wreak havoc on the community
What have we learned about rushing to judgment and imposing the death penalty over these last 300-years? Not as much as we might hope.
According to Rob Warden, Executive Director for the Center on Wrongful Convictions at Northwestern University School of Law, there are at least 46 Innocent Americans currently on death row. Mr. Warden’s studies reveal that erroneous eyewitness testimony–whether offered in good faith or perjured -is no doubt the single greatest cause of wrongful convictions in the U.S. criminal justice system.
The Center on Wrongful Convictions identified and analyzed 70 cases involving 86 people (84 men and two women) who had been sentenced to death but legally exonerated based on strong claims of actual innocence.
The analysis revealed that of the 86 legally exonerated persons, eyewitness testimony played a role in the convictions of 46 (53.5%). And eyewitness testimony was the only evidence against 33 defendants (38.4%).
Another prevailing factor in wrongful convictions is incompetent defense counsel and prosecutorial misconduct–which often seems to go unnoticed. Unfortunately, there are countless death penalty cases that sound more like exaggerated TV movies of the week than actual encounters with the American justice system.
These horrendous stories include intoxicated defense attorneys in the courtroom who are jailed for the night to ‘dry out’ before giving closing arguments. A husband and wife defense team in which neither one had tried a death penalty case before. And in Texas, a defense lawyer literally slept through most of the trial and had to be awakened when it was his turn to present evidence.
Is it the reverence we feel for our capital courts which allows these cases to remain cloistered in anonymity and thus continue? Perhaps if we met some of the victims of our court room dramas we would hold the justice system more accountable.
Meet Abu-Ali Abdhur’Rahman. He is 50 year old African-American Muslim Cherokee. And he is a death row statistic.
Ali’s conviction was based solely on the statement of one witness, Duvalle Miller–who in fact exchanged his own 1st degree murder charge for his testimony. This particular eyewitness was a co-worker of Abu-Ali’s who mysteriously disappeared for an entire year two days after the crime. Only when he was captured and questioned did Mr. Miller offer his “eye witness” account which identified Abu- Ali as the murderer. Unlike Miller, Abu-Ali went to work as usual the morning after the crime.
Abu-Ali was subjected to a revolving door of incompetent defense lawyers who for various reasons were unable to give him adequate representation. One in particular later admitted to having never prepared for his case and called no witnesses on his behalf at the trial. It was also the egregious misconduct on the part of the prosecution that played a significant role in Abu Ali’s death sentence.
Due to torturous physical and sexual abuse throughout childhood and adolescence, Abu-Ali had been diagnosed with debilitating mental illnesses that were left untreated for most of his life. These conditions cause him to black out in times of extreme stress. Hence, Ali does not remember exactly what happened that night. It was only through hypnosis that he was able to disclose the events of that evening and the identity of the real murderer–Duvalle Miller.
Abu-Ali’s defense attorneys failed to learn about his mental disorder, and although the prosecuting attorney did have prior knowledge of his condition, this information was never presented at trial.
Also not presented to the jury was crucial blood evidence proving that Abu-Ali did not commit the murder. Again the defense attorneys were asleep on the bench while the prosecutor–who knew about the lack of blood evidence–witheld the information from both defense counsel and the jury.
This would explain why eight of the jurors have recently signed affidavits expressing outrage at the failure of Abu-Ali’s defense attorneys to present the crucial evidence. Several of the jurors stated if they had known the facts they would never have voted for the death penalty. The state requires a unanimous vote to obtain a death sentence. If the facts of this case were presented Abu-Ali would not be sitting on death row.
In 1998 when Tennessee Federal District Court Judge Todd Campbell finally heard all the evidence in Abu-Ali’s case, he concluded that the ineptitude of the defense council alone justified overturning the death penalty sentence. The Sixth Circuit Court reversed that decision.
In spite of Judge Campbell’s decision and all of the evidence, last month the U.S. Supreme Court denied Abu-Ali’s appeal–which means they will not review the case.
This is a severe blow in a long line of punches endured by Abu-Ali throughout his life. As a toddler he was often beaten until his screams were kicked out of him. Until last month, Abu-Ali held out hope that finally the Supreme Court would hear his cry for justice. It didn’t happen.
Death row inmates are invisible and silent unless we are determined and committed to seeing and hearing them.
As unbelievable as this gross negligence may seem, Abu-Ali’s case in not that unusual.
You don’t have to march in protests to be a promoter of justice. Wearing a button with the name of a death row inmate who has been unjustly sentenced can be a powerful act. Writing a letter to a state representative or to the editor of the local paper can be immensely valuable.
The average (mean) time between the arrest of the defendant and his or her exoneration in the eyewitness cases is just short of 12 years.
Let’s remember all of the men and women who were wrongly executed by so-called righteous, law-abiding citizens in Salem Massachusetts. And then let us try to imagine what 12 unjust years of a death sentence does to the human spirit.
To receive a “don’t Kill Abu-Ali” button or to learn more about Abu-Ali and how you can help, visit: website: http://www.abu-ali.org, or write Abu-Ali Fund, PO Box 121754, Nashville TN 37212
Molly Secours is a writer, videographer and racial dialog facilitator in Nashville TN. She can be reached at firstname.lastname@example.org