Saturday, November 28, 2009

China: Executions in Contaminated milk cases

A year ago I was about to leave for China - to bring word of New Jersey's repeal of the death penalty (the stars had lined up for Jon Corzine and pro-repeal legislative leaders in December 2007). I was eager to spread the gospel of New Jersey as a
Herald of Change.

Student audiences, academics, and prosecutors generally embraced a gradualist approach. They were encouraged by the Supreme People's Court's 2005 statement of policy "kill fewer, kill carefully", and the commitment of the SPC to review all death sentences. Reductions had already been accomplished the government reported - 30% by one estimate (though the PRC's secrecy is such that we don't know 30% of what number).

The people, we were told, demand the the death penalty. Probably true. You could get a pro-death penalty vote in New Jersey if you asked about the planners of 9/11. The mass killings of 197 in riots in Xinjiang - mostly Uighur against Han, it appears, have led to a dozen death sentences - carefully balanced to include wrongdoers on both sides of the ethnic divide. Here and Here - verdicts with which China Daily declared no one could argue.

Now comes news of two executions in the SanLu contaminated milk scandal. In that scandalous episode 6 children died and 300,000 were sickened by defective products of a major infant formula company. According to the NY Times account:

"The authorities described the two men who were executed, Zhang Yujun and Geng Jinping, as among the biggest culprits of the scandal. Mr. Zhang was found guilty of selling more than 1.3 million pounds of tainted milk powder from July 2007 to August 2008, and Mr. Geng was convicted of selling more than 1.9 million pounds of contaminated product.

Nineteen others were tried and sentenced in January for their roles in the scheme. Fifteen of them were imprisoned for terms of 2 to 15 years. One received a suspended death sentence, and three received life sentences."
The Chinese courts seem to be using rules of thumb: the most egregious offenders get the most severe punishment, and the scale slides down. This has a surface appearance of fairness. Defense attorneys in capital cases will doubtless recognize the futility of a direct assault and will have to focus on the arbitrariness of the imposition of death sentences. For example - in the SanLu cases "substantial certainty" that someone will die sufficed. In the Xinjiang cases some killers were executed and others spared.
The guidelines issued by the Supreme People's Court in drug cases make distinctions based on quantity, whether children were involved, etc. But looking across the range a coherent pattern does not emerge: some who personally killed are spared; others who risked grave or fatal harm to others are not. Such divisions may be ground which Chinese capital defense lawyers can till. - GWC

Narcissistic Moment

I am grateful to Justice Thomas G. Saylor of the Pennsylvania Supreme Court, who, dissenting a few months ago, in a welcome footnote, plucked from obscurity a line of mine that I like, but that no other writer had ever cited. Here it is:

Dean Wade's reluctance to put a full panoply of risk-utility factors before lay jurors may well be justified, but the reality is that, in design cases, jurors will be charged with the duty to make an informed evaluation concerning design reasonableness, and the trial courts will be responsible to provide the jurors sufficient guidance to accomplish this task.
Cf. George W. Conk, Compared to What? Instructing the Jury on Product Defect under the Products Liability Act and the Restatement (Third) of Torts, 30 SETON HALL L. REV. 273, 277 (1999):
"The quality of decisions will be better served if jury instructions invite the presentation of evidence and spur arguments that evoke the full vibrancy of the moment of design for the jury (and the court it assists). The clamor of the competing considerations in the good and prudent designer's mind should be heard in the courtroom and in the jury room.".
Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228, 1248 (Pa. 2009)
Images: Justice Saylor, me

Thursday, November 26, 2009

One year to the Mid-Term Elections

It is time to look forward to the mid-term elections. My first was 1982 (before that I was too much the anti-war activist to be involved in electoral politics). I was on Bob Torricelli's issues committee. Unemployment was surging and in working class south Bergen County all we really had to say (and did on thousands of leaflets) was "If you don't vote Democratic they won't get the message". They did and it was a good year for Democrats.

The problem for Democrats now is unnervingly familiar. As a lawyer I remember most fondly my occasional smashing victories. But the reality is that most of the time we were building toward the best available compromise. It was always a hard sell. Politics is that art.

The gap between the message of `Yes we can!' HOPE and the slow slog of Obama's centrism and the persistence of high unemployment feeds skepticism about politics; and anti-tax sentiment (`I need cash') moves back toward ascendancy.

The danger of the current moment for progressives is this: the party in the White House and the majority in Congress ALWAYS loses strength in mid-term elections. 60 votes in the Senate are not really there (making Lieberman and the Blue Dogs king makers). With the bitter pill of compromise on the table progressives will be less motivated. The Right - buoyed by the inevitable loss of air in the 2008 election balloon - will be motivated because their oppositionist stance has freed them from the need to compromise. They can run totally negative, as the infelicitous Chris Christie showed in his New Jersey victory over the competent but hamstrung Jon Corzine.

So I come out for more boldness on the part of the President and the Democratic Party. The success of his Presidency depends on it. And requires a focus on things that can be felt sooner rather than later. For that I turn it over to Paul Starr, the groundbreaking author of The Social Transformation of American Medicine.

The founder and Co-Editor of the American Prospect concludes his December column Faster Please:

According to research by the political scientist Larry Bartels, presidents running for re-election have benefited when economic growth occurred late in their terms rather than at the start.

Democrats running in 2010 have no such consolation, however, and if they lose effective control of Congress, much of the promise of Obama’s presidency may be lost too. A little presidential impatience now would be a good stimulus in itself.

Tuesday, November 24, 2009

China: Third Tort Law Draft Published for Comment

The National People's Congress has published and is now accepting public comments on the draft tort law - a chapter in China's Civil Code. This, the third official discussion draft, will soon be taken up by the NPC. It is a statement of basic parameters - not an operational statute like the State Compensation Law or the Product Quality Laws.

The new draft can be found HERE (in Chinese). Comments on Greenlawblog are HERE.

My translation, with Wang Zhu, of the second draft was prepared for the ALI-Renmin University conference in July 2009. It is available on SSRN: Tort Liability Law of the People's Republic of China (2d official discussion draft December 21, 2008), as is my translation of the first draft and introductory essay, which appeared in the Fordham International Law Journal:

Saturday, November 21, 2009

MRGO: Judge finds Army Corps of Engineers at fault

In a federal tort claims act case U.S. District Judge Stanwood Duval has found the United States liable for the Army's failure to properly maintain the navigation canal known as the Mississippi River Gulf Outlet, contributing to the flooding of New Orleans when Hurricane Katrina struck:

It is the Court's opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and shortsightedness. ... The Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so. Clearly the expression "talk is cheap" applies here.

A news account on the Jurist site and link to the opinion can be found HERE.

Friday, November 20, 2009

Fordham Law Review: Overcoming Barriers to Immigrant Representation

Fordham University | The Jesuit University of New York

America is torn between the Statue of Liberty - the icon of welcoming the immigrant - and the immigration raid, between "give me your tired and your poor" and the demand that "illegal immigrants" be barred from federally assisted health care.

A dramatic legal expression of the contradiction is the statute which recognizes a right to counsel for those facing deportation but requires that it be "at no expense to the Government". 8 U.S.C. 1362

R.P.C. 6.1 says that "every lawyer has a professional responsibility to render public interest legal service." The current issue of the Fordham Law Review explores, in the words of 2d Circuit Judge Robert A. Katzmann, "deepening the profession's commitment to the immigrant poor".


Vol. 78November 2009No. 2




Hon. Robert A. Katzmann




Thursday, November 19, 2009

Prosecuting the 9/11 Cases - Can our courts do it fairly, effectively, and without damage to our security?

Talk radio and the blogosphere are filled with speculation: we will have to give Miranda warnings in the mountains of Afghanistan; Khalid Shaikh Mohammed and the other 9/11 defendants will obtain vital intelligence secrets from the `Brady’ materials (exculpatory evidence) that the prosecutors will have to provide the defense; that a New York venue gives the al Qaeda defendants the platform they seek, etc.

The lawyers from Human Rights First, in an updated report authored by James Benjamin and Richard Zabel at Akin Gump, conclude that our courts are what we seek: effective, fair, and secure. From their executive summary:

In total, we have analyzed 119 cases with 289 defendants. Of the 214 defendants whose cases were resolved as of June 2, 2009 (charges against 75 defendants were still pending), 195 were convicted either by verdict or by a guilty plea. This is a conviction rate of 91.121%, a slight increase over the 90.625% conviction rate reported in May of 2008.

Our research also found:

√ The statutes available to the Department of Justice for the prosecution of suspected terrorists continue to be deployed forcefully, fairly, and with just results.

Courts are authorizing the detention of terrorism suspects under established criminal and immigration law authority and, now through the time-tested common law system, are delimiting the scope of military detention to meet the demands of the current circumstances.

√ The Classified Information Procedures Act (CIPA), although subject to being improved, is working as it should: we were unable to identify a single instance in which CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court.

√ The Miranda requirement is not preventing intelligence
professionals from interrogating prisoners, and recent court decisions have not interpreted Miranda, even in the context of foreign law enforcement interrogations, as a bar to criminal prosecution.

√ Prosecutors are able to make use of a wide array of evidence to establish their cases.

√ Convicted terrorists continue to receive stiff

√ The Federal Bureau of Prisons has been detaining accused and convicted hardened terrorists in U.S. prisons on a continuous basis since at least the early 1990s without harm to the surrounding communities.

In sum, the federal courts, while not perfect, are a fit and flexible resource that should be used along with other government resources—including military force, intelligence gathering, diplomatic efforts, and cultural and economic initiatives—as an important part of a multi-pronged counterterrorism strategy.

p.s. Jim Comey (former Deputy AG) and Jack Goldsmith (former Assistant AG) both during the Bush years defend as reasonable AG Holder's decision to prosecute in federal court, in a Washington Post op-ed here

p.p.s. The ABA has endorsed the Attorney General's decision. the link to the ABA Journal page and the text of the letter to Eric Holder is HERE. - GWC 11/25/09

Sunday, November 15, 2009

The basics: Khalid Mohammed and the 9/11 trials in New York

Rudy Giuliani can spill a lot of poison in a short time. Today he said on a Sunday TV talk show that Attorney General Eric Holder's announcement that the U.S. would try the alleged 9/11 mastermind in federal court in New York is an instance of:

“Barack Obama deciding we’re not at war with terrorists any more....I’m concerned that we no longer believe we’re at war with Islamic terrorists when they’re at war with us” He added that the administration has been hesitant to label the Nov. 5 deadly shooting of 12 soldiers and a civilian at Fort Hood, Tex., as an act of terrorism, noting that the suspect, Nidal Malik Hasan, had printed a personal business card that used an abbreviation describing himself as a “Soldier of Allah.” “The administration has been slow to come to the conclusion that Hasan is an Islamic terrorist” he said on “This Week”, according to the New York Times.

How quickly do they forget that 9/11 happened on their watch, that it was George W. Bush who slept when he got the memo headlined "Bin Laden determined to strike U.S." Barack Obama, who on Monday paid powerful personal tribute to the victims at Ft. Hood (see post below) is on Sunday slandered. Par for the course for Rudy Giuliani to use tragedy and ethnic code as a partisan tool.

There will be much ink spilled on these upcoming trials. So let's begin with the basics. The United States has a choice. It can try the guerillas it has arrested before a military commission or an Article III civilian criminal court - the United States District Court for the Southern District of Manhattan. The prosecution is burdened by the legacy of those who drove us to war in Iraq on grounds proven false, by Abu Ghraib and the images of torture at the hands of American soldiers. Khalid Shaikh Mohammed, the most prominent of those we will now try for murder, has been tortured: 183 times on the notorious waterboard.

How shall we demonstrate to the world that the man we tortured and seek to execute is the right man, the actual planner of the 9/11 attacks, rather than a fantasist who seeks credit for a crime he did not commit? In a closed military tribunal? Or by trial in public, with the protections that our laws and constitution afford? The Justice Department has commendably chosen the latter.

So let us look at the framework that our Constitution establishes in the 5th and 6th Amendments. The script they write is what inspired my classmate (HC '67) Rep. James Moran (D Va.) to say, with characteristically loose lip, that opposing the trials in New York is "unamerican":

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Wednesday, November 11, 2009

Veterans' day: With gratitude for the lives they led" President Obama at Ft. Hood

President Obama traveled to Texas for the memorial service for the 13 soldiers killed by an apparently deranged Army psychiatrist. His words convey the solemnity of the occasion and demonstrate his respect for those who serve under him.

Here is a link to the White House blog and the full text of the speech, which begins:.

We come together filled with sorrow for the thirteen Americans that we have lost; with gratitude for the lives that they led; and with a determination to honor them through the work we carry on.

This is a time of war. And yet these Americans did not die on a foreign field of battle. They were killed here, on American soil, in the heart of this great American community. It is this fact that makes the tragedy even more painful and even more incomprehensible.

For those families who have lost a loved one, no words can fill the void that has been left. We knew these men and women as soldiers and caregivers. You knew them as mothers and fathers; sons and daughters; sisters and brothers.

But here is what you must also know: your loved ones endure through the life of our nation. Their memory will be honored in the places they lived and by the people they touched. Their life’s work is our security, and the freedom that we too often take for granted. Every evening that the sun sets on a tranquil town; every dawn that a flag is unfurled; every moment that an American enjoys life, liberty and the pursuit of happiness – that is their legacy.

Neither this country – nor the values that we were founded upon – could exist without men and women like these thirteen Americans. And that is why we must pay tribute to their stories.

Images: White House blog

Sunday, November 8, 2009

`A drop in the bucket' but NJ Law Journal supports $2M increased funding for DOJ Legal Orientation Program

Sen. Charles Schumer (D.NY) has proposed an amendment to HR 2487 - the appropriation bill for the federal departments of Justice and Commerce. The measure would add $2 million for the Department of Justice's
Legal Orientation Program. Administered by the Vera Institute for Justice, the program offers four levels of service:

Group orientations by legal staff offer a broad overview of the immigration court process, relief from removal and ways to expedite removal.

Individual orientations allow participants to ask more detailed questions about the court process and specific forms of relief from removal.

Self-help workshops are small group classes that allow people who will represent themselves to prepare and practice with others pursuing similar defenses.

Referrals to pro bono attorneys are made for detainees who are unable to represent themselves or whose cases could especially benefit from legal representation.

The New Jersey Law Journal notes

Prof. Peter Markowitz reports in the Fordham Law Review , "One cannot exaggerate how overburdened and underresourced the immigration courts are and how pro se cases tap those scarce resources disproportionately. In fiscal year 2008, the nation's 214 immigration judges handled on average morre than 1,500 cases apiece. To assist them with this enormous docket, immigration judges shared, on average, one law clerk for every six judges. This flood makes a mockery of federal regulations ... which provide, 'The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter.'"

The New Jersey Law Journal Editorial Board, which supports direct federal funding of attorneys for aliens facing removal, nonetheless concludes:
Government spending on attorneys' representation of persons subject to removal is prohibited by federal statute, 8 U.S.C. 1362. But Sen. Charles Schumer, D-N.Y., has offered an amendment to HR 2487 — the appropriation bill for the Justice and Commerce Departments — that would increase LOP funding by $2 million. It may be a drop in the bucket, but every drop helps because the situation is dire. We urge Congress to support the Schumer amendment.

Tuesday, November 3, 2009

NY City Bar report: 39% of New York immigration detainees may have meritorious claims

The Justice Department is urging Congress to provide funds to support pro bono legal representation of persons facing deportation. Its Immigration Judges are overwhelmed by the burden of trying to provide a semblance of justice to pro se deportees.

But as the New Jersey Law Journal editorial board recently urged, a federally-funded "corps of competent lawyers" is needed to address the crisis of insufficient and incompetent representation. That requires Congress to amend federal law which bars such aid.

The aid measure is a $2,000,000 additional appropriation for the Executive Office of Immigration Review's "Legal Orientation" program which provides support (but not funds for direct representation) to pro bono representation of aliens in removal proceedings. The measure is contained in an amendment by Senator Charles Schumer to H.R. 2847, the appropriation bill for the federal departments of Justice and Commerce.

As the New York Times reports lack of representation, and overwhelmed judges are a big part of the picture.

Prof. Peter L. Markowitz of Cardozo Law School recently observed in his study BARRIERS TO REPRESENTATION FOR DETAINED IMMIGRANTS FACING DEPORTATION: VARICK STREET DETENTION FACILITY, A CASE STUDY, 78 Fordham Law Review 541 (2009):

One cannot exaggerate how overburdened and under-resourced the immigration courts are and how pro se cases tap those scarce resources disproportionately. In fiscal year 2008, the nation’s 214 immigration judges handled on average over 1500 cases apiece. To assist them with this enormous docket, immigration judges shared, on average, one law clerk for every six judges. This flood makes a mockery of federal regulations - 8 C.F.R. § 1240.11(a)(2) (2009) - which provides “The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter . . . .”).

The volunteer lawyers and law students of the City Bar's NYC Know Your Rights Project (a collaboration of the City Bar Justice Center, The Legal Aid Society and the American Immigration Lawyers Association, NYC Chapter) have issued a report which prompted the Times account. The executive summary follows:

The purpose of the collaboration is to increase access to legal advice and information for the detainees held at the Varick Facility by recruiting, training, and mentoring private law firm volunteers to staff a regularweekly clinic at the Immigration and Customs Enforcement detention facility in Lower Manhattan. The report is based on data on 158 detainees counseled at Varick by pro bono volunteers between December 11, 2008 through July 9, 2009.

We found 39.2% of the detainees had possible meritorious claims for relief from removal. The most common forms of relief were cancellation of removal; asylum; withholding of removal, and/or relief under the Convention Against Torture; nonimmigrant visas including U and S visas; 212(c) relief; and adjustment of status under 245(i) of the Immigration and Nationality Act.
In addition we found 10% of detainees we interviewed had been granted bond, but the amount was set so high that they could not raise the funds and thus remained housed in the facility. We also experienced detainees we met with being shipped to other parts of the country where access to counsel is even less likely than in the New York metropolitan area, sometimes
before the volunteer could finish researching the case. This report recommends that there be government-funded appointed counsel for all detained immigrants who cannot afford private counsel. Despite our best efforts and the diligence of our volunteers, we were only able to help 10 detainees a week at the NYC Know Your Rights Clinic.

Image: The New York Times - Varick Street detention center

Sunday, November 1, 2009

PRC 60th anniversary - Stanley Lubman on rule of law in China

China's Legal Reforms ( S.c. C. ), Stanley B. Lubman, 0198233442

Stanley Lubman preaches "cautious pessimism" toward progress on the rule of law in China at the 60th anniversary of the People's Republic of China. Modest optimism might be a more accurate formulation - but it is de rigeur for western commentators to see the glass as half-empty. The Berkeley law prof's essay is posted on the Wall Street Journal's
China Real time Report blog.

Lubman's Bird in a Cage was one of the first serious treatments of the developments in the PRC legal system. He notes the great increase in professionalism in the Chinese judiciary and in its burgeoning law schools. My own experience - principally via the strong friendships I have formed with half a dozen Chinese law professors over the past 9 years - is that Chinese lawyers are serious and meticulous about the law. They are conveying this attitude, methods, and values to their students. It is noteworthy that law is an undergraduate degrees and that Chinese universities are producing thousands of graduates who have majored in law.