[Reconstructed from Google Cache]

Via Sentencing Law and Policy: WorldCom's Bernie Ebbers lost his appeal today. His 25 year sentence stands. The court opinion is here. (pdf)

Among the grounds Bernie lost on: the unfairness of the use of snitch testimony when the government gets to pick who to immunize and refuses to immunize defense witnesses.

On appeal, Ebbers principally contends that the district court erred in permitting the government to introduce testimony by immunized witnesses while denying immunity to potential defense witnesses who were rendered unavailable to Ebbers by their invocation of the privilege against self-incrimination. He also claims that the court should not have given a conscious avoidance instruction and that the government should have been required to allege and prove violations of Generally Accepted Acounting Principles ("GAAP"). Finally, he challenges his sentence as based on an inaccurate calculation of losses to investors, as significantly greater than those imposed on his co-conspirators, and as unreasonable in length.

The court also upheld a two level enhancement for Ebbers "for obstruction of justice on the basis of Ebbers' having testified contrary to the jury's verdict."

Just another reason most defendants don't take the stand. You might be telling the truth, but if the jury doesn't agree, you get a longer sentence.

As for cooperators, the Court gives it stamp of approval to the disparity between Scott Sullivan who got 5 years notwithstanding he was the chief architect of the Worldcom scheme, and Ebbers who got 25 years.

by TChris

Intent on circumventing the Supreme Court's pronouncement that detainees are entitled to meaningful trials, the Bush administration is drafting legislation that would rig the trials in the government's favor. Hearsay would be acceptable proof and defendants could be excluded from their own trials. Coerced confessions would be admissible unless the judge thought they were "unreliable."

Rather than requiring a speedy trial for enemy combatants, the draft proposal says they "may be tried and punished at any time without limitations." Defendants could be held until hostilities are completed, even if found not guilty by a commission.

In other words, the administration wants to continue business as usual: indefinite detentions that may eventually lead to a secret trial with no right to confront an accuser.

by TChris

The ACLU has appealed the dismissal of a lawsuit it brought on behalf of Khaled el-Masri (TalkLeft background collected here).

Kuwaiti-born Masri says he was abducted in Macedonia in December 2001, then drugged, beaten and flown by the CIA to Afghanistan, where he was held as a terrorism suspect for five months.

The government persuaded the judge that allowing the case to move forward would jeopardize national security -- a convenient defense that shields government actors from accountability for their monstrous misbehavior.

"If this decision stands, the government will have a blank check to shield even its most shameful conduct from accountability,'' said ACLU attorney Ben Wizner.

Update: While the "state's secrets" defense was rejected (at least for now) in this lawsuit accusing AT&T of helping the government conduct illegal eavesdropping, the defense prevailed in a different suit against AT&T that was dismissed today.

by TChris

The former police officers who avoided racketeering convictions for the assistance they provided to the Mafia (including eight murders) are still behind bars. The judge who threw out their convictions on the ground that the statute of limitations expired denied them bail on a surviving charge that the men conspired to deliver methamphetamine.

Today, after he denied the two men bail, Judge Weinstein took them to task, calling them "dangerous criminals with no degree of credibility" and saying they had been "publicly shamed" at the very trial he had upended with his order of acquittal. He said the drug count -- an alleged deal hatched over dinner in a Las Vegas restaurant -- was a "serious" charge and sternly ordered federal marshals to haul the men to jail.

by TChris

As TalkLeft noted here, it's difficult to understand the logic behind the claim that federal funding of stem cell research would promote the "murder" of embryos without objecting to the fertility clinics that discard embryos or the private researchers who use them. Tony Snow has, um, clarified the president's thinking, noting that the word "murder" was Snow's, not the president's. The president merely believes that stem cell research results in "a destruction of human life." See the difference?

Robert Elisberg gives Snow some of what he deserves, while Joe Gandelman annoints him as Tony Shmo. Yet Snow's fuzzy articulation of the president's view probably reflects the president's own fuzzy thinking, blissfully uninformed by science. The funniest take therefore belongs to Tom Teepen, who says the president wants to make the destruction of a stem cells a hate crime:

by TChris

The man who raped and murdered Michelle Moore-Bosko in Norfolk told the police he acted alone. Despite the absence of physical evidence to the contrary, the police and prosecution pursued four other men, all serving in the Navy. After being threatened with the death penalty, the men confessed. The true killer, Omar Ballard, "changed his tune and supported the gang-rape story -- and authorities spared him the death penalty, too."

Police never seem to have had much evidence of a gang rape -- other than confessions that took place when one suspect after the next was threatened with capital punishment. Indeed, charges had to be dropped against three other sailors who stood their ground and didn't confess. The physical evidence at the scene indicated a single attacker.

Ballard -- whose DNA confirmed his presence at the crime scene -- has now reverted to his original story, admitting that he acted alone. The four convicted sailors say they're innocent, that they were coerced to confess to avoid execution. The state parole board is investigating, but as this editorial suggests, it may take an act of bravery on the part of Virginia Gov. Timothy Kaine to set aside these troubling convictions.

by TChris

Curing disease and disability isn't on the president's list of American values, leading to a veto of the stem cell research bill. Of the ten bills that comprise "The American Values Agenda" (crafted by House Republicans to energize a disenchanted base before the midterm elections), only one has passed: a bill that prohibits condominium and homeowner associations from restricting the display of the American flag. The president signed that bill yesterday, showing that he values the federalization of local condo rules more highly than he values your health.

I'm on the road today and tomorrow. Here's a space for you to discuss whatever's on your mind. I'll be checking in periodically, but blogging will be light on my end.

Do our federal prosecutors really need more money? That's what Reps. Henry Waxman and John Conyers think. Here's their letter to Congress.(pdf)

Will there be an equal increase for federal defenders?

White Collar Crime Blog has some thoughts on the matter.

While Hillary was in Denver at the DLC convention, Bill Clinton was in CT stumping for Joe Lieberman. Firedoglake has the details.

New York Magazine has a long article on Lieberman's war to remain a Senator.

Bump and Update (TL): The ABA issued its task force report today. The task force was chaired by Neal Sonnett of Miami. You can access the report here. From the ABA press release:

The task force determined that signing statements that signal the president's intent to disregard laws adopted by Congress undermine the separation of powers by depriving Congress of the opportunity to override a veto, and by shutting off policy debate between the two branches of government. According to the task force, they operate as a "line item veto," which the U.S. Supreme Court has ruled unconstitutional.

Noting that the Constitution is silent about presidential signing statements, the task force found that, while several recent presidents have used them, the frequency of signing statements that challenge laws has escalated substantially, and their purpose has changed dramatically, during the Bush Administration.

Say hello and give a big welcome to the just launched Colorado Media Matters. CEO David Brock and Colorado Editorial Director Bill Menezes explain:

Since May 2004, Media Matters for America has posted more than 5,000 items correcting conservative misinformation in the national media. Now, we bring this mission to Colorado.....While we continue our work at the national level, this week we are launching Colorado Media Matters.

It will replicate in Colorado our proven methods of monitoring and analyzing media reports every day and correcting conservative misinformation in real time. We will keep a watchful eye on Colorado media -- newspapers, television, radio, and the Internet.