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According to the Pittsburgh Tribune Review, (hat tip TPM) yes …

The FBI agents simply set up appointments for federal prosecutors, said Margaret Philbin, spokeswoman for U.S. Attorney Mary Beth Buchanan.

“It is commonplace for the prosecuting attorneys and the investigating agency, in this case the FBI, to participate in the post-verdict discussion with the jurors,” Philbin said in a statement. “Often that occurs before the jury leaves the courthouse. In this case the jury was excused before the attorneys and agents had an opportunity to speak with the members.”

The FBI agents simply set up appointments for federal prosecutors, said Margaret Philbin, spokeswoman for U.S. Attorney Mary Beth Buchanan.

“It is commonplace for the prosecuting attorneys and the investigating agency, in this case the FBI, to participate in the post-verdict discussion with the jurors,” Philbin said in a statement. “Often that occurs before the jury leaves the courthouse. In this case the jury was excused before the attorneys and agents had an opportunity to speak with the members.”

Is it really commonplace?  If so, it’s almost even more disturbing than if it’s not.  Defense attorneys in the article say it’s unprecedented, while the U.S. attorney’s office says it’s standard procedure.

Either way, I think it’s fair to say it’s profoundly disturbing.  It seems like the kind that falls under the umbrella of technically legal, yet getting your point across.  Doesn’t it just sound like it’d be a highly effective form of legal juror intimidation?  I have to give the Pittsburgh U.S. Attorney’s office the benefit of the doubt, and say they’re no morons in that office.  While they claim it’s simply part of their process in determining on what charges to retry a defendant,  these attorney’s know full well the power of a phone call that starts off , “This is the FBI, we’d like to set up a time to talk about your recent verdict in the Cyril Wecht case … “.  Even with my generally ‘up yours’ attitude towards authorities encroachment on constitutional rights, I would be quite disturbed about getting a phone call like that.

Is it too strong to call this juror intimidation? Not for one of the people receiving the call.  I think his reaction sounds entirely natural …

“I thought it was kind of intimidating,” the jury foreman said about the FBI phone call.

Said another juror, “I found it kind of unusual.”

Both the FBI and the U.S. attorneys have to be fully aware of the intimidating nature of such a call.  If this was a defense attorney contacting jurors about their votes to convict, I think the bar for questioning that lawyer’s propriety would be set much lower than it is when these U.S. attorneys and the FBI do it.  But this kind of contact seems profoundly disturbing in a free society.  Especially when you consider the controversy surrounding the possible political nature of these charges, and the general lack of interest from this Justice Department in prosecuting much more severe corporate crime.

2005’s Republican bankruptcy reform bill opened my eyes to what a crock the ‘getting tough on crime’ mantra can be.  Mainly because it is usually crouched in terms of going after individual criminals while turning a blind eye to other kinds of crime, some that do MUCH more damage.  The bankruptcy bill was couched in terms of going after those people who ‘gamed’ the system and tried to use bankruptcy as a way to avoid bills they purposely ran up.  In truth, it was a massive sop to an industry whose laws are already so much on their side that they’re known for offering even more credit to those so-called ’serial abusers’ of the system.

I’m reminded of that reading the New York Times today.  On the same day that his trial ended in a hung jury, federal attorneys immediately announced that they would retry Cyril Wecht on charges of public corruption, in a case tainted by the accusation of political vindictiveness, by a former REPUBLICAN Attorney General, no less.  Heck, even in murder cases they usually take a day or two before deciding to retry or not.  Wecht’s case has been lumped in with two others, Don Siegelman  and Wisconsin’s own Georgia Thompson as possibly politically motivated.  In all three cases, all three defendants are now free citizens, freed on appeal or not yet convicted.  Yet the U.S. attorney leaves no doubt that they will bear the cost for another prosecution on charges that sound flimsy, at best.

Yet even in cases of corporate corruption as cut and dry as a company giving gobs of money to government officials and being caught covering it up,  our Justice Department basically gives them the ‘get out of jail free’ card known as a  deferred prosecution agreement.   Oh, and how are these agreements enforced, as high a priority as enforcing dpa’s surely are?  In at least some cases, by giving MILLIONS to the former attorney general and his company! Meanwhile, the cost to ours and now the world’s economies of the mess mortgage companies have brought us look to top 1,000,000,000,000 dollars, and are bringing the world, not just the U.S., to the brink of a recession/depression. Perhaps knowing they faced no worse than a stern “don’t do it again” from a judge left them free to f**k things up to such a royal degree?

But don’t be too hard on our Department of Justice.  At least they’re still apparently trying to realize Karl Rove’s dream of a ‘permanent Republican majority’!  You know, the important stuff.  But still, you’d like them to try a little harder where corporate crimes are concerned.  After all, a trillion here, and a trillion there, and pretty soon you’re talking about real money. 

A victory for judicial conservatism over political conservatism from today’s Supreme Court… In Medellin vs Texas, the court insists that the President can’t simply rule by fiat, telling the states what to do and expecting them to follow suit.

One problem I’ve had with this administration is a pervasive belief that the ends make the means irrelevant.  Basically, any manner of illogic that gets the desired result is a-ok with this group…

(b) The United States marshals two principal arguments in favor
of the President’s authority to establish binding rules of decision that
preempt contrary state law.  The United States argues that the rele-
vant treaties give the President the authority to implement the
Avena judgment and that Congress has acquiesced in the exercise of
such authority.  The United States also relies upon an “independent”
international dispute-resolution power.  We find these arguments, as
well as Medellín’s additional argument that the President’s Memo-
randum is a valid exercise of his “Take Care” power, unpersuasive.
Pp. 29–37.

Basically, the government argued that international law gave the President the power to tell Texas what to do! No wonder this 6-3 decision against the administration included all the courts conservative members.  Failing that, the respondent then argued that the President could essentially rule by fiat thru the use of his Memorandums and Executive Orders, which also was rejected.  Too bad no money was involved here, else the administration could have simply claimed the Commerce Clause applies here and probably would have won!
It’s probably not really possible to celebrate a decision that allows the state to move ahead with their executions. But it sure sounds like the court exercised due prudence in limiting the power of the President over the states here, and hopefully gives the administration a tiny dose of reality as they work thru their last year in office.

Legally, if not effectively, shut down in the U.S. last month by a Swiss bank and rubber stamp decision by a federal judge,  Wikileaks has now leaked numerous photos and videos
from the recent crackdown in Tibet.   I find this story interesting because it really does seem to sit at the crossroads of the potential of the internet, and the self-interest of corporations (in this case, Julius Baer), to quell unfettered speech.   It really casts the efforts by Julius Baer in a more illuminative light.  I used to be convinced that corporations armed with lawyers are as big a threat to our Bill of Rights than our government.  The Bush administration has changed my thinking some in recent years, but not for the better.  As with the DMCA, a lot of companies realize that all they really have to do to quell speech on a practical level is to hire a lawyer to send out threatening letters.  Legal justification can be tenous at best, for either a judge or a blogger to back down.  Yet, as we can see here, for every company with a complaint, there is another side to the story and a compelling public interest in full disclosure.

ACSBlog has an informative analysis of the legal issues presented by each side in the flap over Harriet Miers and Josh Bolten ignoring Congressional subpoenas and the Attorney General’s refusal to allow the U.S. attorney referred in the case to follow the law and present the case to a grand jury. Reading the links for Miss Pelosi’s letter and Mukasey’s response, I gotta say that Pelosi sounds a lot more reasonable, presenting the point that even if they refuse to answer questions, they still should at least respect the subpoena and appear …

There is no authority by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so.  Even if a subpoenaed witness intends to assert a privilege in response to questions, the witness is not at liberty to disregard the subpoena and fail to appear at the required time and place.  Surely, your Department would not tolerate that type of action if the witness were subpoenaed to a federal grand jury.

Not only that, but Mukasey’s refusal to even allow attorney Jeffrey Taylor to bring the congressional contempt charge before a grand jury IS pretty stunning.  Far from seemingly being independent as past attorney’s general (even Janet Reno angered Bill Clinton when she appointed independent counsel Ken Starr), this AG seemingly is willing to not only refuse to investigate his boss, but to actively interfere in a legal process taking place against him.  Maybe he has a stronger argument than he laid out in his response to Pelosi, because citing two memo’s from this own administration as evidence of a long-standing policy is not that strong in itself.  Again, it speaks to this administrations belief that they are above the strong law-and-order surveillance society they say is necessary for all of us.

Just one of WAY too many examples of the insanity of our drug war. More here. He made a really rather minor mistake at a young age, referring one friend to another for drugs at his friends urging.  He didn’t buy it or use it, but he got life while everyone else involved got less, some no time at all.   In fact, he may well be being punished BECAUSE he was so low-level in his case, and had no one to offer up to the prosecution to spare himself.  He’s been in prison in 1993 and missed so much of his life.  Even the admitted kingpin of this whole deal only got eight years.

His case is an unfortunately good example of why I’m so offended when President Bush can see fit to pardon his buddy’s buddy Scooter Libby to ensure he never spends a single day in prison, and will use every second he can get in front of a microphone demanding (not urging, DEMANDING) Congress give the telecoms total immunity from CIVIL (not criminal, no one has to worry about jail here) lawsuits for their illegal behavior. Yet all the time being the stingiest president in recent history in commuting or pardoning sentences for people who aren’t fortunate enough to be a crony of his. People whose sentences are totally out of whack with what they should be, and whose lives are wasting away in prison in the meantime.  It’s really offensive to me, and considering how much South Park I’ve watched over the years, that’s saying something.
Hopefully, President Bush will see fit to pardon Aaron before he leaves office.  Unfortunately, I’m not sure I’d hold my breath, not with his track record at least.  If only Aaron had only released an undercover CIA operative’s name and then lied about it to a federal grand jury.  Because that crime is not worthy of prison time, and Aaron’s crime of introducing two consenting adults at their request obviously is.

and laments …

 Laments in Ohio that “many of our bright stars are going into corporate law or hedge-fund management.”

As a former corporate lawyer herself, though, I’m sure she understands exactly why so many do. Obviously there are plenty of glory seekers and those who want to climb the ladder out there, not that there’s anything wrong with that.  But there’s also a sizable percentage that may hate the hours and lack of fulfillment, but need to do it to pay off massive amounts of educational debt.  I looked at law school for quite a while myself and was even offered a scholarship to Ave Maria in Ann Arbor. But the ABA won’t allow you to work more than 20 hours, and suggest not at all, if you’re a first year law student going full time.  So even with a scholarship, I would have needed some loans to get by, and the cost of living in Ann Arbor, I was stunned to find out, was even more expensive than here in Madison.  Of course the loans are even higher when you have tuition to worry about.  And I have enough work experience in enough areas to know that the corporate law work and 80 hour work week it often entails wasn’t for me, even if I promised to do it only long enough to get ok financially and jump off into the criminal defense/appellate law areas that interested me.  There are always ways around following that path, no doubt, but it definitely requires some creativity and most likely much sacrifice.

Cost was not the deciding factor for me not to go, rather my own comfort level with going and general happiness with my own career and life played bigger roles.  But I sure can’t begrudge anyone who does decide to go down that path and find themselves in a corporate or hedge fund job, because I’ve done the math, numerous times.   An expansion of programs offering tuition repayment for those working in needed, but low paying, jobs would go a long way to getting the results she’s encouraging here.   I don’t think that’s necessarily a federal government function, or necessarily a governmental function at all.  But it would be effective at the state level, I think,  and each state can decide just how badly they want or need to try to redistribute where brain power is going.  With the way government is wasting  our money today, we could sure do a lot worse with it.

Oh,and for some great video commentary on her statement today, there’s a must see video on youtube … have a great Friday! 

A story that’s been seemingly underreported. A Republican lawyer swears that she heard Karl Rove planned to ‘neutralize’ the political career of Alabama governor Don Siegelman by using the Department of Justice. At the LEAST, it’s an ugly story that taints the DOJ’s case against him, who was found guilty of corruption and sent to prison for 7 years. It also speaks strongly to the importance of having a strong Attorney General, one who has some independence from the administration in power. Something neither of our last two presidents had the internal strength to dare try.

Is there anyone left for this administration to alienate? In short, yes.   Today Barack Obama reaffirms his belief in the ‘individual rights’ mantra of the Second Amendment, while George Bush’s Department of Justice asks the Supreme Court to adopt a ‘reasonableness’ standard
as it considers Washington D.C.’s gun ban.  At best Bush’s supporters can say there is little to no difference in their positions on the right to bear arms.  At worst, you can say the Bush administration has abandoned one of it’s strongest supporting groups,  to an extent that many gunowners can reasonably conclude that Obama would be a better protector of their ownership rights than President Bush, especially when Bush’s general regard for the Constitution and the rule of law is considered.

Sort of … thru extensive use of minimizing (emphasis mine)….

“I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?” he asked.

“It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game” Scalia said. “How close does the threat have to be? And how severe can the infliction of pain be?”

The ticking time bomb scenario, which in itself is a mere hypothetical, a worst case scenario that is an admitted deviation from normalcy. And even then, Scalia does not talk about tipping a prisoner upside down and pouring water over him till he’s absolutely convinced he’s drowning. Nor does he address worse abuses that we might turn a blind eye towards in a torturing society, such as the cutting open of a prisoners’s body, followed by pouring hot, stinging liquid into his wounds. Both of these, it is fair to say, are much more substantial than a ’smack in the face.’ And it is extremely doubtful that either of the two methods above were used in the ‘ticking time bomb’ scenario described by Scalia.

His example may or may not be a compelling argument, I suppose it depends on how you feel about the issue. And he does ask the pertinent questions, namely how bad is the threat, and what exactly is being done.  But the reality of what we have ALREADY done in the name of the War on Terror displays the folly of going down this road at all. Namely, governments always overstep their bounds, and even horrid policies are by and large EXPANDED by our government (War on Drugs, et al), much moreso than being reduced or reversed. The old slippery slope, which, I have to admit I don’t like when applied to the actions of citizens (”we can’t legalize gay marriage because we’ll be marrying dogs next”, or “legalize weed and everyone will be smoking meth overnight”), but is entirely appropriate to apply to the giving of powers to the government, especially for conservatives, who used to have a distrust of government power. Ten years ago, the thought that state and local governments all over the U.S. would be banning smoking from all public places seemed Orwellian, if not perhaps absurd. Today, the thought that we’d torture anybody who isn’t a terrorist seems patently absurd. Maybe illegals would be next, they’re not citizens, after all. Or maybe sex offenders.  Then maybe people dealing hard drugs to children. Then maybe those dealing any hard drugs at all.  … Once we accept the idea of using, as Scalia puts it, ’so-called torture’ against  it won’t be long to make torture of citizens not sound quite so absurd in 10 years time, especially if people with the power and influence of Antonin Scalia continue to use this kind of logic to justify it.