Full text of Judge Cooke’s opinion. Not my area of law, but it looks perfectly sensible to me.

Incidentally, I have yet to meet anyone who thinks this case should have been brought, or that the primary motive was anything other than terrorizing the local bar in order to dissuade them from taking big drug cases. Maybe the changeover in the Justice Department will be an occasion to dismiss it…although I’m not optimistic.

…the newly elected PD, supported by the Fraternal Order of Police, fired all the top lawyers at the office.

…

[quoting News4 Jacksonville]

At least one of the attorneys told Channel 4 he believes the mass firings were a form of payback.

The firings came on the eighth anniversary of one of the office’s most notable legal triumphs. On Nov. 21, 2000, taxpayer-supported public defender lawyers proved that a Jacksonville teen, Brenton Butler, was not guilty of robbery and murder.

It may seem hard to see what we gain from having defense counsel for the impoverished elected, although it’s also easy to see how an appointed official could enact the same sort of abuses. The issues are many, including

• What ethical rules do or should constrain the newly elected PD? (Is this a bar issue?)
• What ethical, statutory, or constitutional rules give the employees in the Jacksonville PD’s office rights to protest their dismissal?
• What sort of claims will future clients have for ineffective assistance of counsel if they can show any sort of pattern or practice of avoiding certain types of arguments?

These are all potentially interesting questions, but I’m only going to address the issues on this list that I feel competent to speak about.

The constitutional lawyer in me wonders if the fired lawyers have claims under the Elrod v. Burns, 427 U.S. 347(1976) and Branti v. Finkel, 445 U.S. 507 (1980) line of cases.

As it happens, a very similar though has occurred to a lot of people in connection with the somewhat analagous US Attorney firings. Here’s how David C. Weiss summarized the state of the law in his recent Michigan Law Review note, Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U.S. Attorney Removals, 107 Mich. L. Rev. 317 (2008):

Public employees may challenge dismissals by claiming that the firing violated their First Amendment rights to free speech and association; however, that path is unavailable to USAs. The Supreme Court has held that a person cannot be forced to forfeit her First Amendment protections as a condition of public employment, [FN203] but the prohibition on encroachment of speech is not absolute. [FN204] Generally, if an employee fired for her speech can demonstrate that the speech at issue is a matter of “public concern,” [FN205] a court will engage in a balancing test between the interest of the fired employee and the employer-state in serving the public. [FN206] Despite the Court finding significant safeguards for employees in the First Amendment, [FN207] USAs do not enjoy such protection because they are “policymaking” employees. [FN208]

Neither can the USAs bring a due process claim based on a property interest in their positions. Property interests in employment are statutory— not constitutional—entitlements. [FN209] The Supreme Court has broadly interpreted “property” protection, [FN210] but if an employee’s status is provisional, untenured, or otherwise lacking a reasonable basis for an entitlement to her employment, an employee does not have a property interest in her employment. [FN211] Government employees who serve as at-will employees do not have a property interest in their continued employment, [FN212] and as presidential appointees …

Whether the fired PDs were “policymaking” under this test, I leave to others who know the PD’s office better. I would note, however, that the issue of whether a public employee has a constitutionally cognizable property interest in a job for purposes of triggering a Due Process Clause analysis isn’t quite as simple as the quote above makes it sound. In a series of decisions the Supreme Court has made it clear that the test is very unclear: it’s not simply what it says in the statute, but rather the whole enchilada of workplace rules and expectations. In one leading case, for example, an employee who served on a series of one-year contracts and was not rehired at the end of a year was held to have a cognizable interest in the job because everyone in the office understood and acted as if those contracts were always and routinely renewed.

Again, I don’t know what the facts are here, but there might be a claim if the employment relationship in the Jacksonville PD’s office fit that pattern.

As it happens, I have always been a doubter about the wisdom of courts automatically giving state employees outside the civil service system tenure rights akin to the civil service. I think the spoils system actually has something to recommend it that is often too quickly dismissed by judges: it promotes a valuable type of accountability. And by that I don’t mean primarily accountability among the employees who (Austrian economists might say) will be living in incentivising fear of job loss, but rather accountability of the elected head of the office who can’t hide behind civil service rules to disclaim personal responsibility for what the office does.

Stories like this one out of Jacksonville certainly put that predilection to the test. It is another example of a lesson we’ve been learning since at least the Nixon administration (but for which the current lot serves as a master class): that when the heads of offices are determined to undermine the mission of their office, it is very hard to stop them.

Update: More at law.com

But you can decide for yourself, as I’ve just been sent a copy of the indictment. I haven’t had a chance to read it myself; comments very welcome.

CNN, Cheney, Gonzales indicted for alleged prisoner abuse: Vice President Dick Cheney and former Attorney General Alberto Gonzales have been indicted on separate charges related to alleged prisoner abuse in federal detention centers, Willacy County, Texas, District Attorney Juan Angel Guerra told CNN Tuesday.

The indictment stems from Cheney’s investment in the Vanguard Group — an investment management company that reportedly has interests in the prison companies in charge of the detention centers, according to The Associated Press. It also charges Gonzales halted an investigation into abuse at the detention centers while he was attorney general.

You might think there are some federalism issues here. And there are. You might think there are some qualified/absolute immunity issues here, and there are. (Cf. In re Neagle, 135 U.S. 1 (1890) (creating federal officer immunity defense.)) But what you might not know is that there’s a federal removal statute that deals with state criminal prosecutions, 28 U.S.C. § 1442(a)(1):

§ 1442. Federal officers or agencies sued or prosecuted

(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

So step one will be a removal to the federal District Court.

Incidentally, the Supreme Court approved the constitutionality of criminal removal jurisdiction in Tennessee v. Davis, 100 U.S. 257 (1880), and discussed the modern statute in Mesa v. California, 489 U.S. 121 (1989), where the court concluded that “Federal officer removal under 28 U.S.C. § 1442(a) must be predicated upon averment of a federal defense.” (In other words, the defendant must be prepared to argue that acts underlying the charges were performed pursuant to his federal authority.)

Note that if the case is removed, state law continues to govern the substantive rules pertaining to the offense — but federal law supplies the procedural rules.

Isn’t this sort of, well, serious?

All this by way of preface to an opinion by Chief Judge Lee Haworth of Manatee County, which is a must-read for anyone interested in issues of indigent defense, the 6th Amendment, the Florida Constitution, the cruelty of Republican-dominated legislatures, or even basic due process.

The background goes like this: after selling the public on tax cuts, some as recently as the election a couple of months ago, and promising that there would be no cuts in anything (money grows on trees, right?), the Florida legislature is now in full panic mode. The schools are getting chopped. And so is everything else. About the first thing to go, even before the latest round of tax cuts I believe, was payments to lawyers for criminal defense work.

The Florida legislature decided that the most a lawyer should be paid for a non-capital case was $2500. No matter how many counts in the indictment. No matter how long the trial. They did make an exception for very extraordinary circumstances, where there were more than 20 prosecution witnesses, and the case took more than 75 hours: then the judge could double the fee. Only upon a finding that this payment would be “confiscatory” could the judge go above $5000, and even then for non-capital cases the maximum hourly fee available was $75/hour, well below the norm for the criminal bar. Plus, the fee determination would only be made at the end of trial — so the lawyer works only on spec without any idea what s/he’ll be paid, has to front all the expenses (none of which are refundable by the state), and has to wait to see how long the state bureaucracy will take to actually pay out — sometimes months.

The purpose of all this was to screw trial lawyers, and even more to screw defendants by creating an overwhelming financial incentive to either cop a pleas or do a lousy job of representation.

Pursuant to the bill the Florida so-called “Justice Administrative Commission” prepared a contract that private lawyers could sign to be compensated for court-appointed work. The terms of that offer are amazingly bad, and not surprisingly very few lawyers have been willing to agree to them. Indeed, a very large fraction of the lawyers who formerly listed themselves as willing to accept court appointments for indigent defendants removed themselves from the list.

As a result, when relatively tiny Manatee County faced a giant multi-party conspiracy case, the number of defendants exceeded the supply competent and available lawyers. And the pool of competent but unwilling local lawyers consisted of sole practitioners who couldn’t drop everything else to work for nothing and still make their mortgage. While it is accepted that courts can order an unwilling lawyer to represent the indigent, it is also settled law that you can’t require a lawyer to bankrupt himself to do so. Yet, to pay what it would take to represent the unrepresented parties would bust the caps in the Florida statute. (And also would require progress payments were the case to drag on.)

In a careful opinion Judge Haworth bit the bullet and declared the Florida fee law as unconstitutional as applied to the facts before him, and entered an order allowing a quite modest but not confiscatory fee of $110 per hour for the involuntarily appointed lawyer in this — for Manatee County — extraordinary case. The authority for this ruling is given as the Florida State Constitution, Article V, Section 1 (creating courts, and inherently empowering them) and Article II, Section 3 (separation of powers).

Rather than rely only the inherent power of the courts, I would have liked to see a citation to the Florida Bill of Rights, such as Article I, Section 2 (“All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty…”), Section 9 (“No person shall be deprived of life, liberty or property without due process of law…”), Section 16(a) (“In all criminal prosecutions the accused shall, … shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both…”), Section 21 (“Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”), but you can’t have everything. And Chief Judge Haworth can hardly be blamed for relying on the court’s inherent powers, since he was only following the lead set by the Florida Supreme Court in Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986).

I hope this starts a trend.

(Case spotted via Rumpole)

I never thought the prosecution on the most serious charges should have been brought in the first place, so you’ll not be surprised to know I think this is a travesty of justice.

It couldn’t possibly have anything to do with the great fuss and froth this administration originally made about its giant terrorism bust, could it? Which turned out to be a bust.

There are very very few cases that deserve to be brought again after two mistrials due to deadlocked juries (as opposed to witness tampering, error, or something else). There is simply no way at all that this case is one of them.

Typically I try to blog objectively and just report what is occurring in our District.

Today I can’t do that because what happened this morning in magistrate court should not have happened.

Ben Kuehne, one of the pillars of this community, was indicted on money laundering charges. (read indictment here)

The government’s theory of prosceution is outrageous. According to Jay Weaver’s article:

Justice Department officials allege that Kuehne broke the law in 2002-03 when he vouched for millions paid by one-time Medellín drug lord Fabio Ochoa Vasquez to his high-profile trial attorney, Roy Black.

Kuehne’s research gave Black the confidence — in the form of legal opinion letters — to accept payments totaling $3.7 million in fees and $1.3 million in expenses from Ochoa, according to several sources. Kuehne earned a portion of the expense payments — $220,000 to $260,000 — from Black for vetting Ochoa’s payments.

**

Federal prosecutors face a formidable challenge in proving the case against Kuehne. They will have to prove that Kuehne knew Ochoa’s money came from the sale of family assets to drug-trafficking associates…

This means that Ben had to have knowingly and willfully lied to Roy when telling him that the fee was okay. But what motive would Ben have for doing this? The money certainly wasn’t enough to risk all of this. And Ben Kuehne of all people wouldn’t have done these things for a million dollars. He’s as ethical a person and lawyer as I know. I’ll comment a lot more on the charges once I’ve had a chance to digest the indictment which was unsealed this morning in mag court.

We all know the real reason for this prosecution — to discourage lawyers from taking these kinds of cases.

I went to court to support Ben. Half of the legal community was there to show their support. (He was released on a $250,000 personal surety bond.) Watching this unfold really stuck in my gut. I am still in disbelief. I actually had a case in the past with the lead prosecutor from DOJ. I went up to him to say hello and he exclaimed without prompting: “This is a wonderful day for the government.” The comment was unnecessary and it sickened me.

I walked away from him thinking just the opposite. This is a terrible day for our country. Ben will be acquitted. But at what cost to him? And our justice system? Now, more than ever, it’s critical to fight for our Constitution and our justice system.

In court, Ben commented to Magistrate Judge Brown: “since I am completely innocent of these charges, I am entering a plea of not guilty.” He is represented by John Nields and Jane Moscowitz.

The indictment alleges that Kuehne, along with a Columbian lawyer and a Columbian accountant, falsified various documents to hide the tainted origins of the money. In their spinning to the press, however, nameless government prosecutors say rather that he should have known — which is not what the statute charging him requires.

In the Ochoa case, sources familiar with the probe said both federal and Colombian investigators have traced the source of his family’s sales, determined the proceeds came from dirty money and that Kuehne should have uncovered it before he moved the money through trust accounts to Black. Under one money laundering statute, a lawyer cannot approve or accept legal fees from a client if the attorney knows the payments are from criminal proceeds such as drug trafficking. Congress, however, made an exemption for lawyers when there is uncertainty about the source of the proceeds — an exemption the Justice Department has never acknowledged.

You’d think if they had a better case, they’d say so. David Markus suggests that this prosecution — of a man known as a local ethics guru — is a shot across the bow of the criminal defense bar, a tactic designed to make everyone in town afraid to take big drug cases.

Assuming Kuehne is in fact innocent of knowingly aiding and abetting in the falsification of documents — and I agree with Markus that the wages of alleged sin seem low here — I can’t help but wonder if it’s not a twofer for the Bush Justice Department: a chance to do what Markus said, plus a way to ruin the career and reputation of a leading local Democrat. Kuehne, after all, was part of Vice President Al Gore’s legal team. Perhaps the partisan prosecution of Democratic office-holders is moving on to new pastures?

How long before the radicalization of David Markus? Or the rest of us?

First question: under the principle of proportionality, can the prosecution seek the death penalty for defendants who were not the shooter when they are precluded from seeking the death penalty for the shooter based on the shooter’s age?

The author of the essay that follows, John Sifton, is an attorney and private investigator, and the director of One World Research, an investigation firm specializing in human rights and public interest cases. He posted the essay that follows to a mailing list I belong to. I liked it and asked him if I could link to it, but it turned out that it hasn’t been published anywhere. John has graciously allowed me to publish it here for the first time.

Grand Jury Brooklyn: Due Process, from NYC to CIA

A few months ago, in the waning days of summer, I experienced the privilege-and the banality-of serving on a criminal grand jury in Brooklyn.

For two weeks, sworn to secrecy, my fellow jurors and I heard indictments in a catalog of felony cases: murder, assault, sexual abuse, drug and weapon possession, robbery, larceny, and sundry other violations of the New York Penal Code. We listened to testimony from victims, witnesses, police officers, and alleged perpetrators and alibi-providers, and we deliberated on whether to issue indictments. It was an edifying ordeal.

My jury of 23 was a classic Brooklyn bevy: various ethnicities, ages, races, and backgrounds. Our group included subway train drivers, sanitation workers, teachers, and various others from across the socio-economic ladder (but gravitating toward the lower end). The core of the jury was comprised of women, 18 in total: eleven black, two white, two Hispanic (one old and one young), a Russian matriarch, a two young woman of East Asian and South Asian descent. The remaining five males included three black men (including the foreman), me (“the white guy”) and a very young Israeli with dual citizenship who had just finished military service guarding border posts on the West Bank. During the two weeks of service, some interesting and unexpected cliques formed.

How I came to sit on this jury was a matter of controversy to my friends and employers.

“You couldn’t get out of it?” friends asked. Colleagues were also incredulous. I am a human rights lawyer and a private investigator and I work on a lot of cases involving detainees at Guantanamo Bay or secret CIA prisons-facilities in which grand juries are not used. Few believed that prosecutors allowed me to serve. Others were amazed that I didn’t lie outright in order to avoid service, as others apparently have. (Various lies suggested: “I’m a Quaker, etc.” “I’m a vociferous racist; I just can’t be impartial,” and “I typically have to urinate every five to ten minutes.”)

The truth is, it isn’t easy to get out of grand jury service. Grand juries aren’t like trial juries. Unlike trial juries, there is no adversarial process, no judges and no lawyers for the defendants; the only officials present are Assistant District Attorneys (ADAs), who run the process with a subtle but steely fist. The ADAs aren’t as anxious about particular jurors as attorneys might be with trial juries. Unlike with a trial jury, votes are not as momentous, and a single juror is not as vital.

After all, grand juries do not decide guilt. Instead, they vote to indict people, and the voting need not be unanimous, nor do those who vote to indict need to be convinced beyond a reasonable doubt that the accused committed a crime. All that is needed for an indictment is that a majority of the jury, 12 out of 23, believe that it is reasonably likely that the person accused of a crime actually committed it, based on the evidence presented. Twelve Angry Men, it’s not. A single Henry Fonda character, or even a vacillating Hamlet, can’t screw up an indictment.

So there was little chance of escape. In the initial excusal process, wardens excuse non-working parents with children under five, doctors, non-English speakers, certain small business owners, and people with serious health problems. Others postpone their service temporarily, as I did on three previous occasions. But there are few hopes beyond this. Once you-the hapless citizen of Brooklyn-receive your summons, you’re snagged in a net from which extrication is impossible. If you’re a citizen, have a pulse, and live in Brooklyn, you’re going to be chosen. (And if you’re not chosen-say, because the juries that day are filled-they’ll call you back a few weeks later when they do need you.)

The prosecutor then proceeds through a set of formalities: “Mr. Foreperson: is there a quorum present?” (The answer is always “Yes.” A quorum is 16 people, and the prosecutor doesn’t come into the room unless a quorum is there.)

“Let the record reflect that there is. Ladies and gentlemen of the grand jury, today I will be presenting you with evidence in the case of the People of New York vs. [the name of the perpetrator]… . At the conclusion of this case I hope to present you with charges for assault and related offenses [or homicide, reckless endangerment, sexual abuse, possession of a firearm, or some other offense]. I will now call Officer O’Sullivan.”

We would then hear from police officers, some of them undercover officers who looked, convincingly, like most of the criminal defendants. Often we heard from the victims too: bodega owners who were robbed, tenants who were accosted by landlords, old ladies whose purses were snatched-a parade of men and women who, for various economic, ethnic, or emotional reasons, had been shot, stabbed, punched, pushed down stairs, or hit over the head with heavy objects.

For some cases, a defendant might also take the stand, in his or her defense. The gist of their testimony: “It didn’t happen the way you think.” My fellow jurors appeared to be particularly swayed if defendants broke down and cried while testifying-if they did, we might return a dismissal of charges. It would be hard to cry on demand, if you were lying, we figured.

The proceedings were often uncomfortable. After testimony was given, the prosecutor would excuse a witness and then ask us whether we wanted to ask the witness any particular follow-up questions. (Jurors are not allowed to question witnesses directly.) Some jurors asked for important questions, for instance: “Can you ask Ms. Jones how far she was from Mr. Taylor when he handed the bag of powdery white substance to Mr. Jenkins?” But some jurors requested exceedingly irrelevant or simply improper questions, or even started deliberating with the district attorney still present: “So, what I want to know is, how can we trust this undercover police officer? How do we know he isn’t just trying to put this guy in jail? He has all those tattoos.” Or: “He just seems untrustworthy to me.” One juror seemed to fashion herself an amateur sleuth of some kind, and was a conspiracy theorist: she simply doubted anything and everything that anyone said.

During our breaks, we ended up talking a lot. We asked the train driver about working in the subway. (“Have you ever run anyone over?”) School teachers complained about the Board of Education. The Israeli kid, a modern Orthodox, answered dozens of questions from others about Judaism and Israel (“Why do those guys [Hasidim] wear furry hats?” and “How do bald people keep the thing [pointing to the yarmulke] on their head?”)

We also talked about local politics, gossip (intriguingly intricate critiques of Foxy Brown and the various girlfriends of 50 Cent), television shows, the war in Iraq, and other issues of our day (steroid use, polygamy). We cracked jokes and stared into space, and pondered society and the meaning of “due process of law.” I also dropped catalytic comments starting discussions about how our jury process compared to what terrorism suspects face in secret CIA detention facilities, or at Guantanamo Bay (more on this below).

Often the issue before us was whether a certain alleged crime, assault for instance, could also amount to a higher charge, such as aggravated assault. The issues were difficult-was the defendant attempting to kill the defendant, just hurt him, or was he defending himself? We would try to reason with each other, we argued, we even yelled at each other. There was a lot of machismo, especially among the women: “Don’t start with me sister! You don’t want me to go there!” That sort of thing.

Eventually we would vote, and issue indictments, or not. In many cases, we returned at least some indictments, if only because many of the cases were simple and the evidence direct. (One particular ADA, a tall and handsome black man with impeccable suits, had it so easy with the women that I started teasing some of them about it. One juror said, “I just can’t concentrate when that man is in the room. He is just too … hot. Hot!”)

But sometimes, ADAs stretched too far on their charges, and we called them out on it. For instance, during the first week, one ADA tried to make us indict three separate people in a specific crime, on identical charges (I can’t go into specifics about the particular crime, but it involved a specific person committing a particular crime against a specific person). Only one person actually committed the main criminal act, though the others could legally be charged if they intended to aid the primary actor. Since we heard no evidence that the other two did intend to aid the primary actor, we refused to indict the two who aided him (though we did indict the primary actor). Interestingly, after we dismissed the charges against the two non-primary actors, our mood was bashful, but we were proud. Most of the cases typically resulted in an indictment, and the process sometimes took on a factory assembly line resemblance. But in that case, instead of being steamrolled through the process, we’d actually done something to change the course of the proceedings. We meant something.

Well, it’s simple: the whole process is mandated by the U.S. Constitution and the Constitution of the State of New York. As the 5th Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… . nor [shall any person] be deprived of life, liberty, or property, without due process of law.” The same is applicable in New York under Article 1, Sec. 6 of the Constitution of New York. These provisions go back hundreds of years, even to New Amsterdam. They serve as basic guarantees at the center of our criminal justice system: namely, that the jailing of suspected criminals must be justified before an independent body representing the polity-a set of people representing society at large-and that the justification for detention must be part of an established process of law.

Of course, as we on the grand jury came to realize, it’s a busy system: Hearing cases, we came to appreciate the fact that all over Brooklyn, and all over the United States, literally every hour of every day, people are committing crimes.

Some of the crimes that are occurring in America are mundane: the drug dealer selling narcotics, the drunk driving a car. And some crimes are horrifying: a man selling pictures of his stepdaughter over the internet, or a group of white supremacists beating up a Sikh gas station attendant. And other crimes are very complex: A grafter setting up a string of bogus companies in various countries to launder money for criminals engaged in human trafficking, or even worse: a transnational radical armed group plotting and raising money to carry out violent attacks on civilian and military targets in the United States and abroad. As jurors, we came to see a sample of this sheer scope of criminality in the United States.

We also came to appreciate the scope of the system created to manage it. Americans rarely get to see, up close, the process in which our local, state, and federal governments take suspected perpetrators into custody and deprive them of their liberty, temporarily at first, while they are charged with a crime and processed, and then permanently if they are found by trial to have actually committed crimes. Of course, it’s a flawed process-a deeply flawed process that accentuates the inequalities of our society. Nevertheless, serving on a jury you are made to remember-by the ritual of the courtroom-that the process is still that: a process. And the contours of this process are defined by law and established practice (hence, the concept of due process). Moreover, this process is ultimately subject to checks and balances. The police, as prime detainers and deniers of liberty, are subject to review by the judiciary and the polity at large.

Yet, as one of my fellow jurors pointed out during a break: “There ain’t nothing like this for the guys at Guantanamo Bay.” Indeed, nor for terrorism suspects in secret CIA jails.

So, some of us came to ask ourselves-why not?

During breaks, I framed the question to some others: Why is the Bush administration so hostile to putting high value terrorism suspects into a regular criminal law system? Why couldn’t a jury just like us-our jury-handle it? If we, a predominately minority and female-dominated jury in Brooklyn, one of the most liberal places in the United States, voted to indict almost everyone presented to us, why would the Bush administration be so afraid of putting terrorism suspects in civilian court?

All of the administration’s arguments about Guantanamo and CIA prisons-about practicality, guarding classified intelligence gathering secrets, and security-all of these have analogies with the criminal law cases we heard on our grand jury.

As we came to understand, police worry about practicalities too, the secrecy around their undercover officers and informants, and the security of witnesses and juries. “The stakes” can’t be the issue either: ordinary criminals in the United States kill and injure far more people than terrorists.

I don’t mean to suggest we were a perfect jury. We were not. Some of the jurors among us struck me as hopelessly illogical. But at the end of the day, we made good decisions. It was fitting and proper that the State of New York and local government of Brooklyn trusted us to listen to secret information from police, and then deliberate and make important decisions about how to deal with criminal suspects.

Why the federal government can’t trust citizens to do the same with high level terrorism suspects-this, understandably, was a subject we never settled.

© 2007 John Sifton