Hey Wisconsin Dems, Listen to Charles Barkley on Black Folks

Madison, Wisconsin—It would be nice if Gov. Scott, never-had-a-real-job, Walker were bounced from elected office before he and his arsonists inflict more damage here.

Charles Barkley from Alabama has a message applicable to Wisconsin and the moribund Democratic Party of Wisconsin.

Said an ebullient Barkley on Election Night, (King, The Intercept):

Well, this is a wakeup call for Democrats. … They’ve taken the black vote and the poor vote for granted for a long time. It’s time for them to get off their ass and start making life better for black folks and people who are poor.

They’ve always had our votes, and they have abused our votes and this is a wakeup call. We’ve got it in a great position now, but this is a wakeup call for Democrats to do better for black people and poor white people.

To put another way: Wake up Dems, or fuck off:

Former NBA player and Alabama native Charles Barkley: “This is a wake-up call for Democrats to do better for black people and poor white people” https://t.co/D6ZnRJT3Um

— CNN (@CNN) December 13, 2017

Scott Walker Will Take Wrong Lesson from Roy Moore Defeat

Wisconsin for whites, vote Republican in 2018, say white
supremacists. But decency can triumph against hate.

Wisconsin Republicans Will Attempt to Stop Black Voters in 2018, White Supremacists Remain Emboldened

The defeat this week of the child-molesting Roy Moore in Alabama—supported by Donald Trump, Scott Walker and far-too many Republicans—courses thorough the political world.

Hey, decency can win elections.

A signal of the coming 2018 anti-Republican wave? Could be.

Report Richard Fausset and Campbell Robertson:

The word traveled, urgently and insistently, along the informal networks of black friends, black family and black co-workers: Vote.

[Black Alabama human beings] voted out of a more general concern that the country, in the Trump era, was going back to a place best left in the past.

'There’s no state in America where black people recognize the horrors of turning back the clock more than the State of Alabama. There is a consciousness about this history in the African-American community,' said Bryan Stevenson, the founder of the Equal Justice Initiative, which is based in Montgomery, (New York Times).

History instructs.

Today, there's no state in America where being black is as dangerous to life, liberty and health today as in Wisconsin. Lynchings are police executions of blacks, and wrongful convictions. Harassment and public trolling is accomplished by Scott Walker and assorted Republicans on municipal police units. No need for a burning cross, when a state has Scott Walker.

A prediction

Naturally, Scott Walker, Republicans and white poll workers will do their worst to obstruct black, young and progressive voters, lest Wisconsin becomes an Alabama with black folks leading the way towards defeat of white supremacists in 2018.

Voter obstruction in Wisconsin, as bad it has been since 2011, is a project with many more assets to be utilized.

But voting is simply one important deliverable of the Wisconsin anti-black project.

By way of explanation, in Wisconsin, if you have darker skin, many whites and most Republicans DO NOT LIKE YOU.

You're black, there are perceived associated problems with your character, intelligence and decency, and you surely do not belong in a voting booth diluting elections and canceling out the votes of white folks who know better. [Public service tip: If you're black, avoid Fitchburg, Wisconsin in particular: Cops are Republican and unmoored; City Hall crats are corrupt; and the Common Council is a disgrace.]

In Wisconsin, blacks folks, aka the urban vote, are concentrated in Milwaukee and the south-eastern quadrant of the state, including Kenosha, Racine, Rock and Dane counties.

One task for white supremacist Republicans is to stop unwanted voters in these locales.

One solution

If there is not a voter-protection infrastructure in Milwaukee, for example, Scott Walker and other white supremacists win in 2018. It's that easy. Voter protection.

One hopes the Democratic Party realizes the stakes. As a life-long Wisconsinite, I don't think they get it. I know my black friends and family agree.

Judge Alex Kozinski on Prosecutorial Misconduct

Judge Alex Kozinski of the U.S. Court of
Appeals for the 9th Circuit, (official photo).

Did the government react in horror at having been caught with its hands in the cookie jar? Did Justice Department lawyers rend their garments and place ashes on their head to mourn this violation of their most fundamental duty of candor and fairness? No way, no how. Instead, the government argued strenuously that its ill-gotten conviction should stand because boys will be boys and the evidence wasn’t material to the case anyway.
 ---
Eugene Volokh in the Washington Post offers remarks on the most American of derangement and inhumanity: the Police-prosecutor state.

Prosecutors from the United States Attorneys' offices to county district attorneys to municipal attorneys' offices are left unchecked with near-absolute power to cite with civil citations, prosecute, financially ruin and destroy lives under the color of law.

This near-absolute power does tend to corrupt nearly always.

Critical reading; notes Volokh:

... I began serializing “Criminal Law 2.0,” a new article by Judge Alex Kozinski — for whom I clerked 20 years ago, who is one of our nation’s most prominent appellate judges and has long been seen as on balance a libertarianish conservative (appointed by President Ronald Reagan). The introduction gave 12 reasons to worry about our criminal justice system; Wednesday’s post discussed wrongful convictions; yesterday’s post discusses the jury system, and ways to improve it; today’s post discusses prosecutorial misconduct; and I’ll post other parts of the article in the days to come. I’ve added some paragraph breaks and removed the footnotes (which are available in the PDF version), but otherwise this is as Judge Kozinski wrote it. [Writes Kozinski]:

Prosecutors hold tremendous power, more than anyone other than jurors, and often much more than jurors because most cases don’t go to trial. Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find out whether the prosecution is complying with this obligation.

Prosecutors also have tremendous control over witnesses: They can offer incentives — often highly compelling incentives — for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants.

Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial.

This, of course, is not their job. Rather, as the Supreme Court has held, '[A prosecutor] is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.'

All prosecutors purport to operate just this way and I believe that most do. My direct experience is largely with federal prosecutors and, with a few exceptions, I have found them to be fair-minded, forthright and highly conscientious.

But there are disturbing indications that a non-trivial number of prosecutors — and sometimes entire prosecutorial offices — engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.

Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it — and in most cases it will never be discovered.

There are distressingly many cases where such misconduct has been documented, but I will mention just three to illustrate the point. The first is United States v. Stevens, the prosecution of Ted Stevens, the longest serving Republican Senator in history.

Senator Stevens was charged with corruption for accepting the services of a building contractor and paying him far below market price — essentially a bribe. The government’s case hinged on the testimony of the contractor, but the government failed to disclose the initial statement the contractor made to the FBI that he was probably overpaid for the services. The government also failed to disclose that the contractor was under investigation for unrelated crimes and thus had good reason to curry favor with the authorities.

Stevens was convicted just a week before he stood for re-election and in the wake of the conviction, he was narrowly defeated, changing the balance of power in the Senate. The government’s perfidy came to light when a brave FBI agent by the name of Chad Joy blew the whistle on the government’s knowing concealment of exculpatory evidence.

Did the government react in horror at having been caught with its hands in the cookie jar? Did Justice Department lawyers rend their garments and place ashes on their head to mourn this violation of their most fundamental duty of candor and fairness? No way, no how. Instead, the government argued strenuously that its ill-gotten conviction should stand because boys will be boys and the evidence wasn’t material to the case anyway.

It was only the extraordinary persistence and the courageous intervention of District Judge Emmet Sullivan, who made it clear that he was going to dismiss the Stevens case and then ordered an investigation of the government’s misconduct that forced the Justice Department to admit its malfeasance — what else could it do? — and move to vacate the former senator’s conviction. Instead of contrition, what we have seen is Justice Department officials of the highest rank suffering torn glenoid labrums from furiously patting themselves on the back for having 'done the right thing.' ...

I have never heard a prosecutor of any variety say of the wrongfully convicted, the wrongfully fined: Something must be done, an innocent has suffered.

Hon. Alex Kozinski on the Prosecutor

CRIMINAL LAW 2.0

From the Georgetown Law Journal:

Hon. Alex Kozinski (1)

Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. (2) There is reason to doubt it, because very few criminal defendants actually go free after trial. (3) Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it  because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

1. The  author  is  a  judge  on  the  Ninth  Circuit.  He  wishes  to  acknowledge  the  extraordinary  help provided by his law clerk, Joanna Zhang. © 2015, Alex Kozinski.
2. Actually, as Sasha Volokh points out, the  number of guilty men we are willing to free to save an innocent one is somewhat indeterminate.
See Alexander “Sasha” Volokh, n Guilty Men, 146 U. PA. L. REV. 173, 187-92 (1997).
3. According  to  the  most  recent  United  States Attorneys’ Annual  Statistical  Report, out of the  3424 federal criminal cases that went to trial in 2013, only 228, or about 6.7 percent, resulted in acquittals. See Dep’t  of  Justice, U.S. Attorneys’ Annual  Statistical  Report:  Fiscal  Year  2013,  at  51-56, Tables 2 & 2A (Sept. 22, 2014),
available at http://ww stice.gov/sites/default/files/usao/legacy/2014/09/22/13statrpt.pdf

Prosecutorial Reform—70,000 Prosecutors Can Aspire to Be 70,000 Robert Jacksons

University of Wisconsin-Madison Innocence Project
Above are the proven-innocent-after-conviction; wrongful
convictions rarely draw a rush to find out what's wrong. Ask
the innocent Penny Brummer who remains incarcerated.
Ms. Brummer's real offense—Brummer is a lesbian
and victim of the Dane County Sheriff's Department
and a case study in Confirmation Bias, and was
convicted in 1994 on circumstantial evidence only.

Phil Locke calculates that in the United States there are some 70,000 prosecutors. (Wrongful Convictions)

Defense attorneys, civil libertarians and other advocates for those Americans unfortunate enough to enter into the American criminal justice system as defendants witness the dedication of prosecutors to make defendants and those forced into convictions—risk your life and go broke or plead (charge stacking)—spend as much time incarcerated as possible during and after adjudication, with the assistance of the odious Court Services systems around the country.

Some jurisdictions are much better than others, especially now that mass incarceration (Bravin, Wall Street Journal) and police and prosecutorial misconduct are coming to the fore thanks to the work of jurists and reformists such as Mark Godsey, Sidney Powell, Jeff Scott Olson, the Center for Constitutional Rights) and Chief Judge Alex Kozinski (U.S. Court of Appeals for the Ninth Circuit) and Richard Posner (U.S. Court of Appeals for the Seventh Circuit) and the various Innocence Projects around the country, for example.

The denial of liberty is a foundation of the land of the free, and for reasons surpassing understanding the objective of the many prosecutors is to incarcerate, period.

Writes Locke, Science and Technology Advisor for the Ohio Innocence Project and Duke Law Wrongful Convictions Clinic, "I have been doing innocence work for only 7 years, but just in that time, I have seen case after case in which prosecutors withhold evidence, badger or threaten witnesses, make deals with snitches, stack charges to coerce a plea deal, refuse to allow DNA testing, and refuse to allow post-conviction access to evidence. And once the litigation has moved into post-conviction, prosecutors will, without exception, vigorously defend every conviction, no matter how wrongful they might be. I’ve worked 63 cases in eight different states and two foreign countries, and, on top of that, have knowledge of probably 100 other cases; and I find it’s the same all over. Have I seen some exceptions to this 'rule?' Of course, but they’re not common. My belief is that this characterizes the preponderance of prosecutorial behaviors. I can only report what I observe, and clearly there is cause for change."

Dane County District Attorney Ismael Ozanne running for Wisconsin Attorney General last year wrote, "I have worked with lawyers from the Innocence Project, and will do so in the future. ... The ultimate goal of the system is not simply to secure convictions, it is to do justice." (Mal Contends)

In the Democratic Primary election Wisconsin voters chose Ozanne's opponent, Susan Happ, who rode a Harley in a frequently run campaign TV spot featuring Happ looking like an extra for Sons of Anarchy (Sutter, FX Productions, Art Linson Productions and Fox 21), despite Happ's sterling CV.

Prosecutors dedicated to truth don't carry much electoral appeal.

Locke has several suggestions, one of the most compelling is: "Let’s have all trial counsel, prosecutors and defense attorneys, sworn in at the beginning of each trial," sworn in to tell the truth.

Here's another, from Mal:

Each prosecutor before assuming office must read the disquisitions on prosecutorial discretion of Robert Jackson.

If at the end of trial the prosecutor determines the quantum of evidence is circumstantial or suffers defects that a reasonable jurist would determine is less the beyond-a-reasonable-doubt standard, then she must drop all charges.