Justice a la Ashcroft. The

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Justice a la Ashcroft.

The way the prosecutions of John Muhammad and John Lee Malvo are being handled can give us some good insight into what John Ashcroft considers “appropriate” in a criminal case.  While it’s certainly understandable that Ashcroft, and much of the public, want to see Muhammad and Malvo tried, sentenced and executed as quickly and neatly as possible, the fact that their crimes were so horrific and that the case against them appears so compelling is why its so important that we make sure this is handled fairly.  If we give in to the emotional impulses most of us have, full of rage and vengeance, we run the risk putting emotional satisfaction ahead of justice, and it is justice, here, that MUST be served.

As reported in the New York Times, there are already a number of questionable elements to how this case has been handled:

  • John Ashcroft decided to give the case to the state of Virginia for the first trial, largely because they are the state that has the second highest number of executions (following only Texas), and it is easier for prosecutors to obtain death penalty sentences there than in any of the other eligible states.  He also chose Virginia because under their laws, Malvo, the 17-year-old partner of Muhammad, is eligible for the death penalty.
  • Malvo was placed in an adult detention facility even prior to it being determined if his case would be bound over for trial in adult court or if he would be tried as a juvinile. Until the suspect is determined to be an adult for the purposes of trial, he should be treated as a juvinile offender, and held in a juvinile facility – even if it means holding him in some kind of protective or otherwise extra-secure custody.
  • Malvo was subjected to 7 hours of interrogation prior to his even being assigned a public defender.  This was also prior to the court appointing a guardian for him, since, at this time, his mother has yet to be located.  Generally speaking, suspects who are minors are to either be allowed to have their attorney or, at the least, a parent or guardian with them when they are being interrogated, but Malvo was denied both.
  • Earlier that same day (Friday), when Muhammad came in to the court for his hearing, he was told, at that time, that they would be assigning a new lawyer to him next Wednesday.  Muhammad expressed confusion, since he had previously been assigned an attorney by the Federal court, when it appeard that they might choose to take the first shot at the pair (no pun intended). When the Feds dropped the charged, however, the Federal lawyer could no longer represent Muhammad, but apparently, no one felt it important enough to let him know.
  • Notice that the court will not be appointing a new lawyer until Wednesday, meaning that Muhammad was unrepresented in the Friday hearing, but will remain unrepresented until the middle of next week.  As fast as things have been happening on this case, it seems highly unreasonabe that he should be expected to wait that length of time in order to have legal counsel.
  • The prosecutor in this case has already stated his intention to have evidence of the other crimes entered into the Virginia case, even though they took place in totally different jurisdictions.  Not being a lawyer, I can’t speak with authority on this matter, but it seems to me that they should have enough evidence from the crimes in Virgina alone in order to establish that there is a pattern to the crimes (something that is often needed or at least helpful in securing a death sentence).  Bringing in crimes from outside jurisdictions would only serve to create greater outrage in the jury and increase the liklihood that the death penalty will be invoked.

Playing games like musical lawyers, interrogating a minor with neither a lawyer nor a guardian present, detaining a minor in an adult facility, bringing in evidence of crimes outside the scope of the court’s jurisdiction and forum shopping for the place most likely to execute the defendents are things we, as Americans, should not tolerate from our justice sytem.  We don’t have to believe that the defendents are not guilty, we don’t even have to like them – but we do have to ensure that they get a fair trial, and that they are treated by the courts the same ways we would want to be treated, should we ever face trial for anything.

We’ve already seen that the government is trying to loosen a lot of the regulations that currently help to ensure that we are properly protected as Constitution requires.  So far, the Justice department has sought the ability to join religious groups or churches, even if there is no indication that any kind of criminal or terroristic activity is being discussed or planned, so that they can spy on the churchgoers and other participants, incase something does come up. They’ve tried to implement Operation TIPS, whereby postal and utility workers, truck drivers, and others with access to your home for legitimate purposes could report back to the FBI if they spot anything of “concern” in your home or behaviour.  The Pentagon is now seeking the ability to analyze – by computer – data including e-mails, bank transaction records, travel documents and telephone records, without a subpeona and without any reason to even suspect something might be up. As with the infiltration of religious groups and churches, they just want to be able to spy on citizens in case something odd pops up.

When you add that to their treatment of “enemy combatants” the picture turns even darker.  Enemy combatants can be held indefinately with no charges filed against them, and the Justice department doesn’t believe that a judge should even have the right to oversee their handling of a case or be able to periodically find out why the person is still being held.  Enemy combatants can be denied any contact with their attorney, leaving them undefended and at the mercy of the governments lawyers.  And these practices don’t apply just to foreigners who we have captured while at war, but also to American citizens who have been declared enemy combatants, such as Jose Padillo, who the government has been holding for several months, now, without any charges, without any contact with his family, and without legal council.

There’s no denying that, if Muhammad and Malvo are guilty of the crimes they are accused with, that they deserve to face whatever punishment they are given.  But unlike the case of Jose Padillo or John Walker Lindh, both of whom were considered potentially tied to Al Qaeda, and thus potentially terrorists (a category that some might feel is deserving of fewer rights or harsher treatment than other criminals), Malvo and Muhammad are “ordinary” criminals.  Yet even in how their case is being treated, we see some of the same themes – detention and questioning with a lawyers presence and denying them access to a lawyer for as long as possible.  This cannot be accepted as the “new” standard by which cases can be tried.

If the Pentagon and Justice departments get their way and are able to infiltrate religious groups or randomly scan personal data to look for potentially “suspect” patterns, keep in mind that it will increase the chance of innocent people being looked at for crimes they may not have commited.  If we allow the government to bend or break the rules for Malvo and Muhammad, it can set a prescedent that can then be used in later cases.  I know I wouldn’t want to have tactics like that used against me, would you?