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Amanda Knox’s Conviction and What Not To Do About It

December 5, 2009

Some of the comments on the last post about Amanda Knox’s murder conviction made me want to clarify a few points.

First, the Italian court system is sometimes troubling, true, but the deeply problematic criminal justice system in Perugia should not be generalized to all of Italy. Perugia’s head prosecutor is not a good person, and this is not the first time the Perugian justice system has refused to let the truth get in the way of a good story. But by no means is Knox’s situation the Italian norm. It’s a crazy and unfortunate outlier.

The court system is not the only problem, either; even more pervasive are the biased and sensationalist media accounts. Perhaps even more so than Mignini, the media’s tabloid-style rumor mongering is in part responsible for Knox’s conviction, by convincing the public that baseless stories are grounded in some sort of proof, rather than sprung whole cloth out of peoples’ imaginations.

Second, staging an American boycott of Italian products or getting President Obama directly involved is the surest way to guarantee Amanda never sees the light of day again. Nations are — rightfully — extremely allergic to the idea of foreign entities interfering with their court system. Just think about how Texas and the rest of America flips their shit when the idea of the ICC is brought up, or when trivial things like multilateral treaties get in the way of us executing foreign murderers. Or about how we react to little issues like, say, LaGrand, Medellín, Avena?

If Italy thinks the U.S. government is trying to bully them into letting the vixen-murderess free, they will circle the wagons. The Italian court system will be pressured to uphold the conviction on principle, so as to not be seen as weak and catering to a foreign superpower. When I said “it’s time for the state department to bring out the big guns,” I was thinking more along the lines of behind the scenes diplomatic efforts that the rest of us never hear a word about. That way, Italy’s public officials will be able to act without taking a massive hit to their popularity, as would certainly occur if the fact the U.S. had asked them for help were publicized. And, I do think the U.S. Government has been exactly right so far in refusing to even acknowledge the case’s existence. Before Knox’s conviction, by far the best way that the U.S. could help her was by refusing to lift a finger in her defense.

If things get really desperate — and this would, unfortunately, be years down the line — I wouldn’t be against turning to multilateral international institutions for relief. It would deplete some of our foreign policy capital to be sure, but there are worse things to spend it on than freeing an innocent woman wrongfully convicted in an allied country.

Plus, you know, there’s that whole Italian conviction of 22 American CIA agents last month we have to deal with, too. We’re also going to have to sort out that mess. Unfortunately for Amanda, she’s going to be of secondary concern, if that, for the U.S. Government, and I doubt they’re going to offer Amanda too much assistance if it’s going to hinder other national security concerns.

Anyway, there is hope yet, and Italy’s domestic criminal procedures absolutely must be exhausted before any other action is contemplated. On appeal, the current bunch of Perugian officials will not be involved, which gives Knox a fighting chance.

-Susan

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Injustice in Perugia: The Fraudulent Conviction of Amanda Knox and Raffaele Sollecito

December 4, 2009

My deepest sympathies go out to Amanda Knox and Raffaele Sollecito, as well as their families.

I don’t think I believed they would actually be convicted; I knew it was a possibility, given how shockingly corrupt the prosecution has been, but I was still stunned when I saw the guilty verdict.

The lead prosecutor in Knox’s case is Giuliano Mignini, a paranoid conspiracy theorist who has never displayed any concern for the truth of his allegations. Amanda Knox’s conviction makes for a great story — crazed American sexual deviant rapes and murders her roommate! News at 11! Also she does yoga, the evil little slut!– and that was enough to convince him of her guilt.

This article a few days ago in the New York Times Opinionater sums it up:

In closing arguments, Knox was described as a “Luciferina” and “a dirty-minded she-devil.” Preposterous, made-up sexual motives were ascribed to her. One prosecutor speculated before the jury what Knox may have said to Meredith Kercher before, he claimed, forcing an orgy that resulted in her death:

“You are always behaving like a little saint. Now we will show you. Now we will make you have sex.”

Nobody alleges that Knox said this to Kercher. But prosecutors asked the jury to imagine her saying such a thing.

What century is this? Didn’t Joan of Arc, the Inquisition and our own American Salem witch trials teach civilized nations a thing or two about contrived sexual hysteria with a devil twist?

The fact Amanda Knox is an American has undoubtedly played a role in her prosecution and conviction, as well; the jury was clearly influenced by the national identities involved, and at the reading of the verdict, six of the eight jurors were wearing red, white, and green sashes, the color of Italy’s flag.

The man who killed Meredith Kercher is in jail; Rudy Guede was fairly blatantly guilty from the beginning, with plenty of physical evidence plus his own confession to prove it. There is no coherent theory that can explain how he, Amanda, and Raffaele could have all been involved, even ignoring the fact there is zero believable evidence to show either Amanda or Raffaele alone were involved.

I suppose things could go well for them on appeal, but I don’t hold much hope for that. It’s time for the State Department to bring out the big guns, and do what they can to bring Amanda Knox home.

-Susan

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Footnote of the Day: The Apple <3 Sagan Edition

December 3, 2009

72 See Sagan v. Apple Computer, Inc., 874 F. Supp. 1072 (C.D. Cal. 1994) (Apple had given a development project the internal name “Carl Sagan,” but when this fact was publicized Sagan demanded his name not be used. Apple technicians changed the project’s code name to “Butt-Head Astronomer.”)

Edit: After Carl Sagan sued Apple for the “Butt-Head Astronomer” name (a suit Apple eventually won on First Amendment grounds), Apple’s lawyers made the programmers change the codename. They grudgingly did so, re-naming the project LAW — short for “Lawyers Are Wimps.”

-Susan

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Congrats, Rwanda, on Being Landmine Free! Plus: HeroRATS.

December 3, 2009

Rwanda has become the first country to become landmine-free. Under the Ottawa Convention, this mean that not only as Rwanda detected and removed all landmines placed on its territory, but all its stockpiled mines. Impressively, under the treaty, Rwanda had a full year more to achieve landmine-free status, so, in a somewhat rare event under international law, they’re ahead of schedule on compliance.

Largely because of security issues related to South Korea and the DMZ, the U.S. still has not acceded to the convention.

In Rwanda, mine detection dogs were used to sweep the country side, and to identify and secure any mine found. Dogs aren’t the only option, however. One of my favorite international charities, APOPO, is pioneering the use of heartbreakingly adorable Gambian pouched rats as landmine detectors. The HeroRATS have a lot of advantages over dogs when it comes to mine detection, particularly in developing countries. They are cheaper than dogs, quicker to train and reach maturity, easy to motivate, and — perhaps most importantly — are light enough where they will not trigger the landmines themselves. Currently, the rats are used for demining efforts in Tanzania and Mozambique.

HeroRATS are a versatile tool for international development — they can also be trained to detect tuberculosis infections. Although as accurate as humans in detecting TB, they are about a hundred times faster:

HeroRATS offer a local solution to the TB epidemic. A rat can evaluate 40 samples in 10 minutes, equal to what a skilled lab technician, using microscopy, will do in two days. Without requiring sophisticated instruments, this method is non invasive and can handle a high volume of samples, all very important factors in a pro-active screening approach.

-Susan

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Death Row Phenomenon Revisited

December 2, 2009

As I noted a while ago, there seems to be an increasing interest in U.S. jurisprudence in the notion of a “death row phenomenon.”   That interest was reflected yet again in a denial of certiorari in the case of Cecil Johnson, who spent 29 years waiting to die (11 on death row) before being executed early today.  In a statement [PDF] accompanying that denial, Justices Stevens and Breyer both expressed great concern about the length of Johnson’s stay on death row:

[There are] two underlying evils of intolerable delay. First, the delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.  Second, “delaying an execution does not further public purposes of retribution and deterrence but only diminishes whatever possible benefit society might receive from petitioner’s death.”  Thus, I find constitutionally significant both the conditions of confinement and the nature of the penalty itself.

[snip]

One does not need to accept the proposition “that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,’” in order to agree that the imposition of the death penalty on these extreme facts is without constitutional justification.

(citations omitted)

Justice Thomas responded with a concurrence in the denial [PDF] that directly rejects any notion of death row phenomenon and mocks the philosophy’s implicit reliance on international law:

It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument.  I was unaware of any constitutional support for the argument then.  And I am unaware of any support for it now.  There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

[snip]

[Justice Stevens's view] deviates from the Constitution and . . . proponents of his view are forced to find their support in precedent from the “European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”

[snip]

At bottom, JUSTICE STEVENS’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature.  There are, of course, alternatives. As Blackstone observed, the principle that “punishment should follow the crime as early as possible” found expression in a statute decreeing that “in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed.”  I have no doubt that such a system would avoid the diminishing justification problem JUSTICE STEVENS identifies, but I am equally confident that such a system would find little support from this Court.

(citations omitted)

This is a great articulation of both sides of the argument.  Frankly, I don’t know which way to come out on this one, but it should be interesting to see what role international law plays in a debate over the proper interpretation of the Eighth Amendment.

-Michael

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Should Colonel Sanders Be Tried For International Crimes?

December 2, 2009

Everyone loves a good piece of fried chicken, but is it possible that Colonel Sanders (of KFC fame) is an international criminal?  No, I’m not referring to the fact that KFC and its kin have probably caused more deaths than history’s most terrible genocides.  Rather, Colonel Sanders might be guilty of violating international law as a result of some recent shenanigans at the United Nations.

As noted over at Opinio Juris, Colonel Sanders recently breached security at the United Nations and gained access to a number of restricted areas.  Sanders (ok, technically an actor playing Sanders) was even able to pose for a picture with new UN General Assembly president Ali Treki.  There’s no suggestion that the Colonel was engaged in any malicious activity like espionage (although he is very good at keeping secrets).  Even so, one might argue that he violated international law when he started sneaking around the UN complex.

The United Nations complex and the area surrounding it is called the “headquarters district.”  Under Article III, Section 7(a) of the Headquarters Agreement governing the district, that area is “under the control and authority of the United Nations as provided in the agreement.”   Admittedly, the same agreement also provides (in Article III, Section 7(c)):

Except as otherwise provided in this agreement or in the General Convention, the federal, state, and local courts of the United States shall have jurisdiction over acts done and transactions taking place in the headquarters district as provided in applicable federal, state, and local laws.

This provision suggests that Sanders might only have to worry about anything more than a common trespass conviction.  But note that the provision does not vest exclusive jurisdiction in U.S. courts.  Thus, the United Nations may argue that, given the international character of the headquarters district, Colonel Sanders might also be subject to international liability for sneaking into the “inviolable” district.  See Art. III, Sec. 9. 

Still, there are other obstacles that would have to be overcome before we could see the Colonel in the dock at any international court.  First, what international crime did he commit?  Strangely, there would not seem to be any well-established notion of “international trespass” on internationally-held lands.  (I say strangely only because it would seem to be a crime of international concern if other extraterritorial outposts were trespassed upon, like CERN or NATO headquarters.)  It would also be extreme to resort to any prosecution of the basis of international “aggression.”  Lacking a crime, there can be no trial.  Second, where could the Colonel be tried?  The International Criminal Court certainly would not have jurisdiction.  An ad hoc tribunal would be out of the question.  Third, it is unclear whether the United Nations could independently impose any penalty for any violation of “international law” under Section 10 of the Headquarters Agreement:

Persons who violate such regulations [of the United Nations] shall be subject to other penalties or to detention under arrest only in accordance with the provision of such laws or regulations as may be adopted by the appropriate American authorities.

In sum, it looks like the Colonel will escape international prosecution.  Still, I think there’s some chance that KFC’s new “grilled chicken” is an international human rights violation in the making.

-Michael

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Update: Scott Rothstein Arrested

December 1, 2009

In a follow-up to an earlier post, high-flying South Florida lawyer Scott Rothstein was arrested this morning on RICO charges. As the ABA Journal explains:

He is accused of operating a Ponzi scheme involving investments in legal settlements. Investors were asked to make an upfront payment, supposedly to a lawsuit plaintiff expected a series of payments over a period of months or years. Later, the investors were told, they would get back the full settlement amount. “But it was all a scam,” according to the Miami Herald. “Federal prosecutors said there were no plaintiffs, no defendants, no lawsuits.”

To get a sense of what a weirdo this guy is, check out this video tour of his office.

-Michael

P.S. What’s with all the Ponzi schemes lately?

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Signaling Strategies and the Quest for Employment

November 28, 2009

For fairly obvious reasons, the issues of signaling in the employment context have been heavily on my mind lately. It has been clear for some time now that I am in dire need of a new strategy for my own signaling methods, but knowing that something needs to change is a good deal easier than knowing what to change. But as it stands, I am failing to send potential employers a clear (and hopefully accurate!) indication that I’m a worthwhile candidate.

This post on snap judgments and taking superficial first impressions seriously summarizes the basic situation nicely:

If you’re applying for a job, you want good credentials so your resume doesn’t go straight to the circular file. The key elements in this story are (a) high rewards, and (b) high search costs. Since the rewards are high, lots of people try to win; and since lots of people are trying to win, it’s too expensive to carefully study all of the candidates. The result: People try really hard to make a good impression, and anyone who fails to make a good impression pays a heavy price.

There are a lot of people “trying to win” right now, so employers are forced into ever greater reliance on arbitrary filters, in order to pick out a rough list of the candidates for whom spending more on search costs is most likely to offer a good ROI. While conducting the initial screening, employers know there’s a high rate of false negatives, but accept this as a necessary cost; even if the “best” candidate is accidentally overlooked in favor of a candidate marginally worse, the company is still better off, as it is not efficient to spend ten times more in search costs merely to find the candidate that is just a tiny bit better.

This is a problem for me, as, unfortunately, I am pretty sure I am not making it through that initial sorting. That is, right now, I am doing a poor job at signaling to employers my potential value.

I look decent on paper: decent class rank at a decent law school with the usual decent assortment of accomplishments and attributes on my resume. Not a rockstar by any means, but nothing that should flag me as a potential axe-wielding sociopath to be avoided at all costs. However, to an employer sorting through resumes and making a couple hundred snap judgments, I would imagine I also look pretty boring. Boring is not necessarily bad — if I looked like I had all the personality of a box of Shredded Wheat, that might actually count in my favor so long as I boasted an editor position with a law review and a couple summers at Skaddington McKirkland & Jaworsknight.

But I don’t. So as it stands, there is very little reason for an employer, in an initial evaluation, to tag me as a candidate worth expending additional search costs on.

To make things worse, right now I have another factor working against me: it has been more months than I care to count since graduation, and I still do not have a job. To employers, this can be taken as a strong indication that I am not likely to be a good employee, and may have some hidden flaws that my resume is not revealing. It makes sense for someone hiring to assume that, “Well, if this young lawyer has been unable to secure a job from anyone she has previously applied to, that raises an assumption she was not good enough for any of them, and therefore is likely not good enough for me either.”

Effectively, I am pre-screened as a candidate who likely should not be hired by all of the many employers that have previously failed to hire me. It is simply not worth it to an employer to spend extra resources on giving me a closer look, when presumably other firms already have given me such a look and found me to be wanting.

So my problem is this: I need to find a strategy that increases the odds of an employer deciding to invest further time and money on obtaining a closer evaluation of me. Once they do that, they will, hopefully, discover that I am a capable and effective lawyer, and worth hiring. I believe this to be true; if it’s not, well, I have far bigger problems to deal than merely getting hired, and addressing the whole signaling issue would be kind of unnecessary. So for discussion purposes only, I am just going to stipulate that I am in fact the employee that any firm or agency making a hiring decision might like to find. How, then, can I quickly signal to employers that (1) I am worth taking seriously, and (2) the signal is very likely to be truthful?

I’ll be discussing this more here, both how it might particularly apply to my own situation and strategies for employee signaling in general. And who knows, with a good deal of luck, maybe in the near future I’ll even get some first hand experience on what signaling strategies work.

-Susan

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Words Invented By Law Professors

November 28, 2009

Law professors coin new words at roughly the rate of one neologism for every five articles written. Most of these words, however, either never catch on, or if they do remain in use, are strictly a legal term of art and do not enter the mainstream. I can think of two recent examples, however, of words that were first invented for use in law review articles, and have now started to become mainstream English.

The first is Copyfraud, coined in 2006 by Prof. Jason Mazzone in his article of the same name. Mazzone introduced the word to describe a pattern of widespread abuse of copyright laws:

Copyfraud, as the term is used in this Article, refers to claiming falsely a copyright in a public domain work. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the putative “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use, or altering their creative projects to excise the uncopyrighted material.

Since then, the word has evolved slightly; I see uses of “copyfraud” that apply not merely to claims of copyright in works in the public domain, but claims of copyright against uses that are either clearly not infringing or else clearly fair use. However, copyfraud still seems to remain in the neologism stage, and while in certain circles it is a common phrase, it has yet to achieve the popularity that, say, “unfriend” has.

In contrast, the term Net Neutrality, first used by Prof. Tim Wu in a 2003 law review article, is in widespread use today. It can fairly be considered to have entered the popular lexicon, and is regularly used in the mainstream media unaccompanied by an explanatory definition.

The most famous word invented by a law professor is still “genocide,” which was coined by Raphael Lemkin in 1944. Today, the word genocide is as well established as patricide or even homicide, and will almost certainly remain a part of the English language for centuries yet. The word genocide first appeared in Lemkin’s book, Axis Rule in Occupied Europe, and was described as follows:

This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing), thus corresponding in its formation to such words as tyrannicide, homocide, infanticide, etc.(1) Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.

I am sure there are other examples of popular words invented by law professors out there, but these seem to be the most prominent examples. If anyone else knows of another word with similar origins — either more modern creations or words of an older vintage — feel free to share them in comments.

-Susan

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“Thou shalt not sit/With statisticians nor commit/A social science.”

November 27, 2009

W.H. Auden is probably my favorite poet, and the only poet I’ve read enough of that I feel like I could discuss seriously without feeling like a giant fraud. His poem “Law Like Love” is undoubtedly the best known among lawyers, for obvious reasons, and from a quick search, the poem seems to have been quoted in law review articles over 40 times. It says something about Auden that his other works are also quoted relatively often in legal academia, a community that, in general, does not pay all that much attention to poetry.

Auden’s appeal, for me, is that he embodies some strange brand of cynically ironic libertarianism. How else would you describe a line like “To be free/is often to be lonely”? Still, his libertarian streaks are often overlooked, as Auden is better known for his dabblings in Marxism. Two of his most famous poems were, technically, communist propaganda, but his later repudiation of them is telling. The poems were removed from his later collections for being “dishonest,” and, as Auden described it, “A dishonest poem is one which expresses, no matter how well, feelings or beliefs which its author never felt or entertained.”

Auden’s communism was not based in some economic theory, or in any desire for the state to control the machinery of civilization. In Auden’s view, communism’s appeal was that it provided a path to freedom from the oppressive coercion of the State. As he wrote in his poem “New Year Letter,”

“Who has ever met a poet (at least one who has had any success) for whom the real attraction of Communism did not lie in its premise that, under it, the state should wither away for others as it has already withered away for him?”

I’m pretty sure the idea of Auden-as-a-libertarian is not exactly widespread, but under the brand of textualist interpretation that Auden endorsed, I don’t think it’s an unfair characterization. His communism was motivated by much the same impulses that motivate libertarian ideology today, and he was unquestionably anti-totalitarian and pro-individual. His poem the “The Unknown Citizen” is my favorite of his commentary on the state verses the individual, and I wanted to share it here below. I always feel like it should be read alongside Epitath on a Tyrant, so go check that one out as well, it’s short.

As a side note, to carry on with my quest to show how every topic is, in some way, connected to international law, I’ll also mention that Auden translated the work of Dag Hammarskjöld, the second Secretary-General to the United Nations.

The Unknown Citizen

(To JS/07 M 378
This Marble Monument
Is Erected by the State)

He was found by the Bureau of Statistics to be
One against whom there was no official complaint,
And all the reports on his conduct agree
That, in the modern sense of an old-fashioned word, he was a saint,
For in everything he did he served the Greater Community.
Except for the War till the day he retired
He worked in a factory and never got fired,
But satisfied his employers, Fudge Motors Inc.
Yet he wasn’t a scab or odd in his views,
For his Union reports that he paid his dues,
(Our report on his Union shows it was sound)
And our Social Psychology workers found
That he was popular with his mates and liked a drink.
The Press are convinced that he bought a paper every day
And that his reactions to advertisements were normal in every way.
Policies taken out in his name prove that he was fully insured,
And his Health-card shows he was once in hospital but left it cured.
Both Producers Research and High-Grade Living declare
He was fully sensible to the advantages of the Instalment Plan
And had everything necessary to the Modern Man,
A phonograph, a radio, a car and a frigidaire.
Our researchers into Public Opinion are content
That he held the proper opinions for the time of year;
When there was peace, he was for peace: when there was war, he went.
He was married and added five children to the population,
Which our Eugenist says was the right number for a parent of his generation.
And our teachers report that he never interfered with their education.
Was he free? Was he happy? The question is absurd:
Had anything been wrong, we should certainly have heard.

W.H. Auden (1939)

-Susan

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