I've ranted and raved a bit about the Harris County Criminal Justice system. Now, it's time for a little ranting on the International Criminal Tribunal for Rwanda.
The tribunal's leadership says it is trying to end impunity for war criminals. But it has delivered impunity to the victors in a civil war even though it has substantial evidence of serious war crimes by the victorious army.
The tribunal's prosecutors have evidence of 500,000 murders and it is doing nothing to prosecute the perpetrators. Instead, it is engaged in a bit of butt kissing with the leaders of the murderous army.
The tribunal was set up by the United Nations Security Council in 1994 to try persons charged with war crimes in the genocide in that Central African nation. The country was and still is divided into two basic ethnic groups -- Hutus and Tutsis.
The Hutus make up about 85 percent of the population and ruled the country before the 1994 genocide. Minority Tutsis, generally children of Tutsis who left the country for Uganda in the early 1960s, invaded the country in 1990 and defeated the government army and took power in July 1994.
Most of the world's attention has been focused on the massacres of Tutsis from the time the president's plane was shot down on April 6, 1994, until the government went into exile in mid-July. And, it was terrible. Somewhere between 500,000 and 800,000 Tutsis were murdered.
So, the tribunal has indicted what it calls the leaders of the genocide. One of the defendants is my client, Prosper Mugiraneza, the former minister of civil service.
While I think Prosper is innocent, I can't complain about trials of the Hutu leadership if there is evidence of their guilt.
But, I'm shocked and amazed that the tribunal is simply ignoring as many as a half-million murders of Hutus by Tutsis during the war. It's just wrong.
A lot of defense types at the ICTR, some expert witnesses for the prosecution and exiled Hutus have complained for years that the the tribunal is delivering victor's justice, that is, just prosecuting the Hutus while ignoring crimes by the Tutsis. One expert witness for the prosecution in many trials, a Belgian professor named Filip Rentjens, has flatly refused to testify for the prosecution again until at least one Tutsi is indicted. Another, the late Allison des Forges, has testified and written that approximately 40,000 Hutus were killed by Tutsis.
But, des Forges was off by a factor of 10, according to some evidence gathered and suppressed by the tribunal's prosecutors. A couple of years ago, prosecution witness was interviewing a Tutsi who knew about the actions of the Rwandan Popular Front army, the main Tutsi political group and the eventual victors in the civil war. He asked how many Hutus were killed by the RPF army and thought the answer was mistranslated. So, he wrote down the number he thought was right, 50,000. The witness said, no, then added an extra zero, making it 500,000 dead.
A half million dead people and the prosecutors at the UN tribunal haven't even said that it is tacky conduct. Why?
Well, there are a couple of reasons. First, the Kagame government in Rwanda is a wholly-owned subsidiary of the US government. And, the US writes the biggest checks to the UN. So, part of it is the golden rule, he that has the gold rules.
A second reason is the tribunal's completion strategy. The Tribunal with a $130 million plus annual budget is a money pit for the UN. All to try about 70 defendants -- all Hutus -- since 1994. The tribunal has promised the UN Security Council it will finish all trials by the end of 2010 and nothing is going to stand in the way. Indict some Tutsi officials and the completion strategy goes down the tube.
Most important is that the tribunal is scared to death of crossing the Rwandan government. Most of the witnesses come from Rwanda and the government can turn off the flow of witnesses like a tap. And, the tribunal knows it can because it has at least once in the past.
That was the case of Jean-Basco Barayagwiza. He was an official in the former government's foreign ministry charged with inciting the genocide.
In 1999, the tribunal's appeals chamber ruled unanimously that the charges against Baraygwiza should be dismissed due to violations of his rights after he was arrested.
The Rwandan government went nuts. It cut off cooperation with the tribunal. The tribunal almost instantly ground to a halt.
So what happened? The prosecutor s filed a b.s. motion to reconsider. Four months after its initial decision, the appeals chamber reversed itself in a decision that ranks with Bush v. Gore for intellectual honesty. Instead of releasing Baraygawiza, the appeals chamber ordered that if acquitted he be given cash compensation and it convicted, his sentence be reduced to account for the violations of his rights.
In 2003, Baraygawiza was convicted. His two co-defendants got life. But, to give credit for the violation of his rights, Baraygawiza -- who was then 53 years old -- was sentenced to "only" 35 years in prison. Given the credit on his sentence for time served, he would have only been 80 years old when he completed his sentence.
On appeal, his sentence was reduced to 33 years. So, he can look forward to being released when he's 78.
If the Rwandan government is willing to cut off the tribunal for releasing a single defendant like Baraygawiza, what would it do it the tribunal indicted the president of Rwanda and his top military and political subordinates? It would go mad. You can bet the tribunal's office in Rwanda would be closed and the staff there run out of town on a rail. As for witnesses in the trials in progress. When pigs fly.
This isn't to say that the judges on the tribunal always cave in to pressure from the Rwandan government. To the contrary, the tribunal has acquitted six defendants including cabinet ministers and senior military leaders of the former government. I expect more acquittals. For instance, I truly believe my client has a shot at being acquitted.
And, the judges have shown the spine to refuse to transfer defendants to Rwanda for trial due to worries about the Rwandan judicial system. The Rwandan government screamed like stuck pigs when that happened but the tribunal's judiciary commendably stuck to its guns.
But, the powers that be such as the prosecutor and the top administrator, aren't about to get the Rwandan government mad at them.
So, the long and the short of it is that the tribunal likely will do half of its job to end impunity for mass murders. It ended impunity for those who lose.
As for the winners, well, what the heck. It was only a half-million Hutus killed. There are lots of Hutus in Rwanda and a few more or less won't make any difference.
Saturday, October 24, 2009
Wednesday, October 7, 2009
Long pretrial incarceration and our judges
In Sunday's Chronicle, there was a long story about lengthy pretrial incarceration and how some people blame the current system of court appointments for defense counsel for the indigent.
That's not true. The real blame should be placed at the feet of our elected judges and the county's bailbondsmen.
Lisa Olsen's sources seem to think a public defender system would solve this problem.
As Col. Potter in the classic television show M*A*S*H would have said, Horsehockey!
Once a criminal charge is filed, with a very few rare exceptions, the case ends in one of three ways. The defendant pleads guilty, the prosecution dismisses the case or it goes to trial.
I don't see how a public defender's office can change the possible outcomes. About the only way it could speed up the system is by pleading its clients quickly or convincing the prosecution to dismiss more cases. If it manages to do one of those things, it will reduce the number of cases set for trial, thereby reducing pretrial delay. But otherwise, it's hard to see how a public defender's office could reduce jail crowding.
The real reason most indigents sit in jail awaiting trial is simple. They're broke and can't afford to post a bond. Along with that, our judges often raise bonds or revoke them because the defendants violate conditions set on their bonds.
There is a solution to this problem. It's not novel. It's been around for 35 years. All we have to do is use it.
It's the Harris County Pre-Trial Release Agency.
In the mid-1970s, as part of a suit challenging overcrowding in the Harris County Jail, then-U.S. District Judge Carl O. Bue ordered creation of the agency. The idea was that people charged with crimes would be released on their own recognizance rather than being forced to hire bailbondsmen or sit in jail. A lot of research was done to determine what factors are good predictors of a person's likelihood to show up for trial. Every person booked into the jail is interviewed using those predictors and given a score.
The factors range from criminal history to whether they have a job and a home telephone.
It isn't a new concept. In federal court, magistrate judges routinely conduct detention hearings to determine if a person should be released pretrial or detained. If a person is ordered released, the magistrate judges set conditions and often require them to place 10 percent of a bond amount in the registry of the court. When the case is over, they get it back.
If the magistrate judge believes the person is likely to flee or be a danger to society, they stay in jail. Money or lack thereof makes little difference. Ask R. Allen Stanford, who is in federal detention because he was found to be a flight risk.
But, that's not how it works in Harris County.
If a defendant or his family can't come up with a bondman's fee -- a minimum of 10 percent of the bond -- or collateral to guarantee that a bondsman can recoup his losses if a defendant does not appear, the defendant sits in jail until his case is disposed of.
Bondsmen promise to pay Harris County the amount of the bond if a defendant does not appear in court. And, if a defendant runs, they usually are given a period of time to catch him and get him in jail. Dog the Bountyhunter on television is one of those persons who hunts absconding clients for bondsmen.
I haven't looked in a while but at one time, the failure to appear rate for defendants on bonds was about the same as that for defendants released on personal bonds. And, any comparison now might be useless because so few personal bonds are granted.
The reason is simple. Bondsmen are in the business of making bonds and collecting their fees. For every personal bond granted, there is one less potential customer for the bondsmen. So, they do what any American business does when politicians like elected judges have control over their profits.
They give campaign contributions. And, even if they don't give a lot of money to judicial campaigns, the judges know darn well that they can and will if a judge grants too many personal bonds.
So, the pre-trial release agency has been reduced to an agency that supervises people who post bonds and who have conditions of bonds imposed on them. It's the pretrial release agency that tests urine samples from defendants, ensures that they follow court-imposed curfews and follow whatever other conditions the judges set. But, those conditions only go into effect when the defendant ponies up the money for a bondsman. And, they can be imposed on personal recognizance bonds too.
If the pretrial release agency was allowed to do what Judge Bue expected, it could do a lot to reduce jail crowding, just like Judge Bue expected. That in turn would save the county a lot of money running the jail.
And, pretrial personal bonds could save the county money another way. If the defendants were required to post a percentage of the personal bond with the county, most lawyers would take an assignment on that as part of the down payment on a fee.
That in turn could mean fewer court appointed lawyers. Every dollar that goes to a bondsman is one less dollar to pay a defendant's lawyer.
In Austin, Travis County judges are aggressive in their use of pretrial personal recognizance bonds. Bondsmen are practically out-of-business there. So, they should have fewer people sitting in jail awaiting trial. The system works there, just like it works for the feds.
Using personal recognizance bonds won't empty the jail. Some defendants will be such bad risks that the judges can and should deny personal bonds. Others will be on parole and held without bond because of parole violator warrants. But a lot could be released on personal bonds to work, support their families and possibly earn enough money to pay for their own lawyers rather than having the county's taxpayers pay because the defendant is in jail where he can't work.
There are a lot of good arguments for and against a public defender system. Jail overcrowding isn't one of them.
But, our judges could do a lot to clear out the jail and save the county a lot of money if they simply used the tools at their disposal, tools that work elsewhere and which would work here.
But, that might make the bondsmen unhappy, and who would want to do that?
That's not true. The real blame should be placed at the feet of our elected judges and the county's bailbondsmen.
Lisa Olsen's sources seem to think a public defender system would solve this problem.
As Col. Potter in the classic television show M*A*S*H would have said, Horsehockey!
Once a criminal charge is filed, with a very few rare exceptions, the case ends in one of three ways. The defendant pleads guilty, the prosecution dismisses the case or it goes to trial.
I don't see how a public defender's office can change the possible outcomes. About the only way it could speed up the system is by pleading its clients quickly or convincing the prosecution to dismiss more cases. If it manages to do one of those things, it will reduce the number of cases set for trial, thereby reducing pretrial delay. But otherwise, it's hard to see how a public defender's office could reduce jail crowding.
The real reason most indigents sit in jail awaiting trial is simple. They're broke and can't afford to post a bond. Along with that, our judges often raise bonds or revoke them because the defendants violate conditions set on their bonds.
There is a solution to this problem. It's not novel. It's been around for 35 years. All we have to do is use it.
It's the Harris County Pre-Trial Release Agency.
In the mid-1970s, as part of a suit challenging overcrowding in the Harris County Jail, then-U.S. District Judge Carl O. Bue ordered creation of the agency. The idea was that people charged with crimes would be released on their own recognizance rather than being forced to hire bailbondsmen or sit in jail. A lot of research was done to determine what factors are good predictors of a person's likelihood to show up for trial. Every person booked into the jail is interviewed using those predictors and given a score.
The factors range from criminal history to whether they have a job and a home telephone.
It isn't a new concept. In federal court, magistrate judges routinely conduct detention hearings to determine if a person should be released pretrial or detained. If a person is ordered released, the magistrate judges set conditions and often require them to place 10 percent of a bond amount in the registry of the court. When the case is over, they get it back.
If the magistrate judge believes the person is likely to flee or be a danger to society, they stay in jail. Money or lack thereof makes little difference. Ask R. Allen Stanford, who is in federal detention because he was found to be a flight risk.
But, that's not how it works in Harris County.
If a defendant or his family can't come up with a bondman's fee -- a minimum of 10 percent of the bond -- or collateral to guarantee that a bondsman can recoup his losses if a defendant does not appear, the defendant sits in jail until his case is disposed of.
Bondsmen promise to pay Harris County the amount of the bond if a defendant does not appear in court. And, if a defendant runs, they usually are given a period of time to catch him and get him in jail. Dog the Bountyhunter on television is one of those persons who hunts absconding clients for bondsmen.
I haven't looked in a while but at one time, the failure to appear rate for defendants on bonds was about the same as that for defendants released on personal bonds. And, any comparison now might be useless because so few personal bonds are granted.
The reason is simple. Bondsmen are in the business of making bonds and collecting their fees. For every personal bond granted, there is one less potential customer for the bondsmen. So, they do what any American business does when politicians like elected judges have control over their profits.
They give campaign contributions. And, even if they don't give a lot of money to judicial campaigns, the judges know darn well that they can and will if a judge grants too many personal bonds.
So, the pre-trial release agency has been reduced to an agency that supervises people who post bonds and who have conditions of bonds imposed on them. It's the pretrial release agency that tests urine samples from defendants, ensures that they follow court-imposed curfews and follow whatever other conditions the judges set. But, those conditions only go into effect when the defendant ponies up the money for a bondsman. And, they can be imposed on personal recognizance bonds too.
If the pretrial release agency was allowed to do what Judge Bue expected, it could do a lot to reduce jail crowding, just like Judge Bue expected. That in turn would save the county a lot of money running the jail.
And, pretrial personal bonds could save the county money another way. If the defendants were required to post a percentage of the personal bond with the county, most lawyers would take an assignment on that as part of the down payment on a fee.
That in turn could mean fewer court appointed lawyers. Every dollar that goes to a bondsman is one less dollar to pay a defendant's lawyer.
In Austin, Travis County judges are aggressive in their use of pretrial personal recognizance bonds. Bondsmen are practically out-of-business there. So, they should have fewer people sitting in jail awaiting trial. The system works there, just like it works for the feds.
Using personal recognizance bonds won't empty the jail. Some defendants will be such bad risks that the judges can and should deny personal bonds. Others will be on parole and held without bond because of parole violator warrants. But a lot could be released on personal bonds to work, support their families and possibly earn enough money to pay for their own lawyers rather than having the county's taxpayers pay because the defendant is in jail where he can't work.
There are a lot of good arguments for and against a public defender system. Jail overcrowding isn't one of them.
But, our judges could do a lot to clear out the jail and save the county a lot of money if they simply used the tools at their disposal, tools that work elsewhere and which would work here.
But, that might make the bondsmen unhappy, and who would want to do that?
Monday, October 5, 2009
Remembering Clyde Woody
Clyde was a defense lawyer here forever. He died Saturday at 89.
Clyde was licensed in 1952 and for many years with his partner Mirian Rosen, they defended many tough cases. I don't know when Clyde stopped practicing but I haven't seen him for years.
I got to know him when I was a reporter for the Chronicle. We weren't that close but I had a lot of respect for him and the work he did.
Houston has one of the best criminal defense bars in the country. Over the years, giants like Percy Foreman, Will Gray and Clyde began that tradition. They worked with young lawyers like me (well, I was young once) but most important, they gave us something to shoot for.
Percy, Will and Clyde are all gone now and the youngsters they mentored are getting up in years. It's time we all stopped for a few minutes and remember the giants who made the Houston defense bar what it is.
Clyde was licensed in 1952 and for many years with his partner Mirian Rosen, they defended many tough cases. I don't know when Clyde stopped practicing but I haven't seen him for years.
I got to know him when I was a reporter for the Chronicle. We weren't that close but I had a lot of respect for him and the work he did.
Houston has one of the best criminal defense bars in the country. Over the years, giants like Percy Foreman, Will Gray and Clyde began that tradition. They worked with young lawyers like me (well, I was young once) but most important, they gave us something to shoot for.
Percy, Will and Clyde are all gone now and the youngsters they mentored are getting up in years. It's time we all stopped for a few minutes and remember the giants who made the Houston defense bar what it is.
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