Saturday, September 15, 2007


One thing you hear about Duke University law professor Erwin Chemerinsky from just about everybody, is how brilliant and fair and sound he is as a legal scholar, even if he does sound off as a liberal moonbat.

I'm not so sure.

The furor over Chemerinsky's nomination, retention, and dismissal as founding Dean of the UC Irvine law school continues. The Los Angeles Times continued to write on the UCI cha-cha on September 14, 2007 [boldface added]:

The criticism [contra Chemerinsky] included a letter from the California Supreme Court criticizing a Chemerinsky opinion piece in The Times.
In an interview Friday, [California Chief Justice Ronald M.] George said Chemerinsky made a "gross error" that was "very troubling" to the court in an Aug. 16 article that criticized U.S. Atty. Gen. Alberto R. Gonzales. [UCI Chancellor Michael V.] Drake offered him the job that same day.
George, an appointee of Gov. Pete Wilson, said that Chemerinsky wrote incorrectly that only one state, Arizona, provided lawyers for death row inmates who want to file a constitutional challenge, known as a habeas corpus petition, to have their sentences or convictions overturned.
George said he was surprised Chemerinsky would make such a mistake. The court asked Court Clerk Frederick K. Ohlrich to write a letter to the editor to The Times to correct the piece.
"None of us could understand how somebody, let alone someone who is very bright and a fine legal scholar, could get that wrong," George said. "It had nothing to do with his philosophy. I certainly feel he is an outstanding legal scholar and a fine advocate."
...George gave a copy of the letter to [prominent Orange County attorney Tom] Malcolm.
Malcolm said he gave the letter to Drake. "It disturbed him, but I don't think it was the reason for his decision." Chemerinsky was angered by the letter when told about it by The Times.
"If the justices sent a letter to UC Irvine with the goal of influencing the dean process, that's inappropriate," he said.
He also stood by his article. "My op-ed was accurate in saying California does not comply with the federal standards for providing counsel to those on death row in their post-conviction proceedings, and Arizona is the only state deemed in federal district court to have met the federal standards."

His August 16, 2007 op-ed [boldface added]:

Atty. Gen. Alberto R. Gonzales is about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court...It's at this stage, which includes habeas corpus petitions, that serious flaws in trial are often exposed, including the kind of mistakes that lead to the execution of innocent people.

Almost no states provide counsel in these crucial proceedings. So the 1996 law laid out this deal: If a state starts providing lawyers to capital defendants, it will get the benefit of a shorter, six-month statute of limitations.

So far, only Arizona has complied. Other states have decided that it's not worth the expense.

...Gonzales, it has been widely reported, is about to certify California and other states as being in compliance with the 1996 law, in essence just giving them the six-month statute of limitations. But these states have done nothing that this law requires. Everywhere but Arizona, death row inmates still have to pay for their attorneys (unlikely), get pro bono representation (difficult) or represent themselves (unwise). Any "certification" is a lie.

Here is the relevant section of the Antiterrorism and Effective Death
Penalty Act of 1996

Sec. 2261. Prisoners in State custody subject to capital sentence; appointment of counsel; requirement of rule of court or statute; procedures for appointment
`(a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied.
`(b) This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.
`(c) Any mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record--
`(1) appointing one or more counsels to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer;
`(2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or
`(3) denying the appointment of counsel upon a finding that the prisoner is not indigent."

"A finding that the prisoner is not indigent". Means-testing. A state legislature, or Supreme Court, can restrict the offer of a government-paid lawyer to the "indigent", and it can set up a scheme to determine who is "indigent".

My point here and now is not whether Dr. Chemerinsky is totally wrong about the 180-day statute of limitations rule, or its likely effects, or the process of certified compliance.

My point--and that of the California Supreme Court--is that his opposition has crossed a line into misstatement of federal law, and misrepresentation of California as out of compliance with that law. And he continues to do so, in another op-ed for the Los Angeles Times, September 14, 2007:

"What was it about my views that was too controversial? Only one example was mentioned: an Op-Ed article I wrote on these pages criticizing a proposed regulation by then-Atty. Gen. Alberto R. Gonzales to shorten the time death row prisoners have to file their habeas corpus petitions. There are more than 275 individuals on death row in California without lawyers for their post-conviction proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court.

...The truth is that a person's politics should play no role in the decision to hire them for a faculty or administrative position. All that matters is that the individual be committed to creating an institution where all viewpoints will be respected and flourish. That is what academic freedom is all about."

I would add the proposition that the nominee be practically sound in their field of discipline. Chemerinsky has not been. This is not the first rabble-rousing op-ed where he abuses his authority as a legal scholar to promote a false, but politically favorable, conclusion.

"Arizona is the only state deemed in federal district court to have met the federal standards"--well sure, if Arizona is the only state that anybody sued federally over their compensation mechanism under the 1996 Act.

I think Chief Justice George did get one thing wrong, when he said "None of us could understand how somebody, let alone someone who is very bright and a fine legal scholar, could get that wrong,...It had nothing to do with his philosophy." I can guess why a liberal opposes means-testing, and it does have to do with his philosophy.

So there we stand, with Erwin Chemerinsky defiantly wrong, and telling everybody from the California Supreme Court on down where to go. Do we need that sort of thing at the University of California? No!--Berkeley has already got Angela Davis, and seniority hath its privileges.

Monday, September 10, 2007

Andrew Sullivan Gets Sloppy

Surfing around I became aware Andrew Sullivan wrote a piece for the Atlantic that is become infamous on the left side of the Net. It's titled "Verschärfte Vernehmung" and it breathlessly concludes:
Critics will no doubt say I am accusing the Bush administration of being Hitler. I'm not. There is no comparison between the political system in Germany in 1937 and the U.S. in 2007. What I am reporting is a simple empirical fact: the interrogation methods approved and defended by this president are not new. Many have been used in the past. The very phrase used by the president to describe torture-that-isn't-somehow-torture - "enhanced interrogation techniques" - is a term originally coined by the Nazis. The techniques are indistinguishable. The
methods were clearly understood in 1948 as war-crimes. The punishment for them was death.
To arrive at this startling indictment, Sullivan quotes from a Gestapo memo on "sharpened interrogation":

4. The sharpening can consist of the following, among other things, according to circumstances: simplest rations (bread and water); hard bed; dark cell; deprivation of sleep; exhaustion exercises; but also the resort to blows with a stick (in case of more than 20 blows, a doctor must be present)

Sullivan also mentions that "waterboarding" and hypothermia were later added to the roster. He lists several accounts from Norway, where hypothermia and other "enhanced interrogation" techniques were used, described as torture, and death sentences handed down.

Sullivan wants to draw specific attention to the definition of torture handed down by the Norwegian court:
Notice the classic, universal and simple criterion used to define torture in 1948 (my italics): "In deciding the degree of punishment, the Court found it decisive that the defendants had inflicted serious physical and mental suffering on their victims, and did not find sufficient reason for a mitigation of the punishment in accordance with the provisions laid down in Art. 5 of the Provisional Decree of 4th May, 1945. The Court came to the conclusion that such acts, even though they were committed with the connivance of superiors in rank or even on their orders, must be regarded and punished as serious war crimes."
Sullivan's point is clear: these activities are so heinous as to be indefensible, condemned historically as capital crimes.

But the conclusion of the Norwegian court was in fact, quite the opposite.

Following the link Sullivan provides, the study reveals that the Norwegian Court was considering violations of Norwegian law by German occupiers:
Art. 228. He who commits an act of violence against another person or in any other way inflicts bodily harm on him, or is an accomplice to such an act, will be fined or sentenced to imprisonment for a period of up to six months. If the act has resulted in some injury to body or health or considerable pain, a term of up to three years imprisonment can be inflicted and up to five years if the act resulted in death or grave injury. . . .
Art. 229. He who causes harm to another person’s body or health, or ;puts another person into a state of helplessness, unconsciousness or any similar state, or who is an accomplice to such an act, will be punished by a term of up to three years and up to six years if the act has resulted in sickness or disability to work lasting more than two weeks, or permanent injury, and up to eight years if the act has resulted in death or considerable injury to body or health. . . .
Art. 232. If an act mentioned in Arts. 228-231 was premeditated and carried out in a particularly painful way or by means of poison or other similar substances which are highly dangerous to the health, or with a knife or other particularly dangerous
instrument, a term of imprisonment must always be inflicted. Life imprisonment may be inflicted for crimes against Art. 231 carried out under the same conditions. For crimes against Arts. 228-229 the term of imprisonment fixed by those paragraphs can be increased by a term of up to three years.
The presiding Norse judge, Larssen, applied the logic of a Judge Skau in a previous case, that violations of Norse law by the occupying power were punishable retroactively as war crimes.

Skau, in handing down death sentences for crimes for which prewar statute provided merely imprisonment of four to six years, or in lethal cases, life, engaged in a breathtaking piroutte of legal activism: The Norse government being in exile, had been forced to take a hiatus on the passage of criminal law. Had the government been aware, prewar, of the wartime excesses of the Quisling regime, it would have been harsher on violation of the three Articles. And in any event, since these crimes were committed in time of war, they were war crimes; and since previous armies historically punished war crimes with death, they were now (in 1948 Norway) punishable by death, despite the lesser statutory penalty.

So that's the historical record behind Sullivan's "reporting": A judge found these actions punishable by a retroactive, blanket death penalty provision, when committed by German occupiers. It was not the horror of "torture" in and of itself that drew the death sentence, but its role as a crime of conquerors against a vanquished people. The Norse made clear, in fact, that there could possibly be a mitigation of the offense.

It would be hard for them to be more contrary to Sullivan's own position on Bush's "torture".

Tuesday, September 04, 2007

Birthday Musings

Wow! A lengthy hiatus.

I've been very very very busy. I should be busy now, on my term projects, but I'm snatching a few hours of leisure before returning to the grindstone.

The weather is dreadful, the worst smeltering smelly heat since the big fires of 2003. The crew coming off the racetrack had a few guys suffering from heatstroke. Hopefully it will rain or blow over or something soon.

Within a few weeks I'll be free between classes and hopefully will have more regular internet access.