Friday, June 26, 2009

Trespass and the Homeless

Trespass is a venerable legal term, one of the building blocks of the common law. The definitions in Black’s Law Dictionary of the various types go on and on for pages, hinting at archaic hair-splitting now largely lost to time. Trespass on the case, trespass to chattels, and so on — with criminal trespass only one, comparatively compact, meaning among many.

Today, in America, it is the criminal meaning that prevails. Going on someone else’s property without permission is against the law and can be prosecuted as a criminal offense. In our mind’s eye, many of us still see the context for such an offense as, say, a hunter ignoring a “no trespassing” sign in order to hunt for deer or other game on private land.

Tonight’s PBS report from Miami on homeless people taking up residence in foreclosed homes showed the old concept of trespass bumping up against our complex contemporary reality. The NOW program followed Max Rameau, a community activist whose organization, Take Back the Land, seeks to match responsible homeless families (not by any means an oxymoron) with empty homes that are still livable.

This used to be called “squatting,” and it is still against the law. Rambeau’s response is that it is immoral to leave people on the street when society has failed to build enough affordable housing and the Great Recession relentlessly adds to the ranks of the homeless. Nationally, depending on how homelessness is measured, those numbers are expected to rise from roughly 3 million to roughly 4 million people who will be homeless at one time or another this year. How many of us would have thought, as recently as two years ago, that tent cities would spring up in America?

There is also a very particular back story in South Florida. In 2006, the Miami Herald broke the story about rampant fraud in the Miami-Dade public housing agency. The paper won a Pulitzer Prize for revealing that Oscar Rivero, a developer who had taken over $700,000 in public money to build 54 affordable housing units, had actually spent the money on a house for himself, complete with appliances, pool, and of course thorough termite inspection. The Herald’s investigation revealed numerous other instances of fraud in the agency — so many, indeed, that the federal Housing and Urban Development agency took control of it.

For me, this background complicates the moral calculus of whether the civil disobedience Rambeau’s group is engaging in is justified. Does it promote a culture of lawlessness that will further undermine neighborhoods, contributing to more crime and homelessness? In other words, is Rambeau an urban Rambo, taking the law into his own ends in a reckless manner, like Sylvester Stallone’s movie character?

Perhaps it would help to get down to cases. The NOW program highlighted a story about a single mother trying to get a Ph. D. while working a cleaning job. She moved into a foreclosed house with her children, only to return one day to find their belongings strewn about the property. After Rambeau organized a media event to confront the property management company, the woman and her family ended up staying for a few more months in the house. What difficult judgment calls situations like this must be for law enforcement and prosecutors, having to decide whether to use their discretion to seek trespassing charges against people looking for nothing more than a roof over their heads.

Friday, June 19, 2009

DNA and Eyewitness Evidence

Synchronicity is a fancy Jungian term for meaningful coincidence. Tens of thousands of us were introduced to it a quarter century ago by the rock musician Sting and his band, The Police.

I’m no Sting, but in the last two days, with Father’s Day weekend approaching, I’ve had occasion to follow some of the latest legal developments involving DNA evidence. Of course, the end of the Supreme Court term typically falls around Father’s Day, so a major ruling coming down this time of year is hardly a surprise. But Jungian concepts are flexible, and the Court's ruling is indeed meaningful — especially if you’re a criminal defendant in Alaska, Oklahoma or Massachusetts, the three states lacking laws providing access to post-conviction DNA testing.

In the Osborne case, the Supreme Court ruled that Alaska authorities did not violate the constitutional rights of a man convicted of rape when they refused to allow him to test the DNA evidence that might have overturned his conviction. The Innocence Project has used this type of evidence to successfully reverse over 240 convictions around the country in recent years — a major shock to a justice system whose claims to legitimacy depend on its ability to punish the guilty and spare the innocent.

DNA testing technology has become more sophisticated since 1993, when the sexual assault that Alaska prosecutors charged Osborne with occurred. Though a preliminary test showed a match between Osborne's DNA and DNA taken from a condom that had belonged to the victim, it was an imprecise test and approximately 15-16 percent of African-American men would also have been a match. When the case came to trial, Osborne’s attorney chose not to seek an independent, more precise test. The defense attorney feared (or at least claimed) that it might provide stronger evidence of Osborne’s guilt.

That strategy didn’t work. And yesterday, by a 5-4 vote, the Supreme Court said that William Osborne has no constitutional right to have DNA testing done after his conviction.

Attorney General Holder responded to the Court’s decision quickly. He pointed out that the Obama administration supports defendants’ access to DNA evidence “in a range of circumstances" and that federal law has guaranteed access to it in federal cases since 2004. As Peter Neufeld of the Innocence Project noted, however, the decision will severely impact people in the three states that do not have laws allowing defendants to obtain DNA testing.

Today, a day after the Supreme Court’s DNA ruling, I attended a CLE on eyewitness identification. The presenter, Jeanne Schleh, a former assistant county attorney in Ramsey County, Minn., noted in one of her first Powerpoint slides that virtually all of the DNA exonerations of wrongfully convicted defendants were in cases with faulty eyewitness evidence.

Issues involving eyewitness evidence have been on my professional radar since I was a third year law student. In 1986, I edited a lead article for the Valparaiso University Law Review entitled “Trial by Jury: Reflections on Witness Credibility, Expert Testimony and Recantation,” by Elaine D. Ingullli.

Ms. Ingulli began the article by examining a case in Cook County, Illinois in which a man named Gary Dotson sought a new trial after the alleged witness recanted, saying she had perjured herself at trial. Ingulli rightly raised broad issues about the justice system's (arguably excessive) dependence on the evaluation of live witness testimony by juries to get at the truth.

When cases like Gary Dotson's occur today, DNA tests can play a key role. But even today, eyewitness evidence remains fundamental to the work of law enforcement agencies. Testing has become easier, but the United States is not one big DNA lab, and gathering evidence from human witnesses is still a basic building block of police work.

The CLE I attended outlined how Ramsey County (MN) has changed its identification procedures. The presenter began by showing this video, produced by Gary Wells, a psychology professor, to illustrate how tricky it can be trying to make a positive ID based on a fleeting view of someone for perhaps only a matter of seconds.

The “60 Minutes” program on the CBS television network also explored the accuracy of visual memory recently, focusing on a rape case in North Carolina in which a black man was wrongfully imprisoned for eleven years before a white woman’s accusations were disproved by DNA evidence.

Following a national trend, Ramsey County has moved away from traditional “lineups,” which typically required enlisting jail inmates and maybe a few stray volunteers. Instead, best practices are now to use “blind” (and possibly computer-based) photo displays where the administrator doesn’t even know who the suspect is.

“If we share this nightmare, we can dream,” sang Sting in “Synchronicity I.” Being imprisoned when DNA evidence might exonerate you would be a nightmare. The dream remains, however, of a criminal justice system adaptable enough to include state-of-the art science when that is in the interest of justice.

Thursday, June 18, 2009

Girard on Blood Feuds

No scholarship, no matter how great, stands outside of time. The river keeps moving, and even theories of uncanny prescience and blazing insight must take their place amid the flux of events.

No one gets it ALL right; the next wave is always coming.

I say this as someone who is so strongly influenced by Rene Girard’s work that I consider myself a Girardian. And I am not alone. Countless articles, many books, and now of course websites (especially Girardian Lectionary) discuss, expound and extend Girard’s central insights about the relationship between religion and violence. In books like Violence and the Sacred (French, 1972, English translation, 1977), Girard has explored how socially sanctioned violence arose out of religion, and the threat this poses to cultures under Gospel influence, which increasingly can no longer accept such violence.

I am currently reading Violence and the Sacred. In the first chapter, on sacrifice, I was surprised to read a statement that sounded strikingly out of date.

“It may be that a basic difference exists between a society like ours and societies imbued with religion . . . When internal strife, previously sublimated by means of sacrificial practices, rises to the surface, it manifests itself in interfamily vendettas or blood feuds. This kind of violence is virtually nonexistent in our own culture. And perhaps it is here that we should look for the fundamental difference between primitive societies and our own . . . .” (Violence and the Sacred, John Hopkins, 1979, p. 14)

Why does this seem outdated to me? It’s because “interfamily vendettas or blood feuds” have hardly gone the way of the Hatfields and the McCoys. Rather, they have taken a new form in the gang violence, often connected to drugs, that plagues so many cities in the United States − not to mention Mexico, with its epic struggle against drug cartels.

Rene Girard is 85 years old and may not get out to many movies. But he would surely have much to say about Clint Eastwood’s Gran Torino, where the myth of cleansing violence undergoes a critical reexamination. Maybe Eastwood had Girard in mind when writing the script?

Friday, June 12, 2009

Beyond the Politics of Fear

No one wants to compromise public safety. A government’s most fundamental duty, after all, is to protect its citizens. Quite appropriately, then, Senator Jim Webb and other legislative leaders chose a law enforcement official to lead off the first hearing on Webb’s proposal to create a national criminal justice study commission charged tasked with recommending comprehensive, system-wide reforms.

Chief William Bratton of the Los Angeles Police Department told the Senate Judiciary Committee that there would be more, not less, public safety with a proper reform of the justice system. “It is not enough,” he said, “to continue to churn people through a broken and ailing system with no forethought and no long-term solution.” America has been doing that for three decades, giving a country with five percent of the world’s population a bloated prison system with 25 percent of the world’s prisoners.

How did it happen? In his chapter on “The Politics of Fear” in his 2007 book The Assault on Reason, Al Gore asks why we have become so vulnerable to appeals to fear. Though he does not deal with domestic criminal justice issues directly, his reasoning applies equally as well to them as to the Bush Administration’s “war on terror.” Gore argues that our democracy’s immune system — its ability to neutralize falsehood by exercising reason — has become weak. A free press is a crucial part of this system, but it has failed just as miserably in questioning America’s incarceration policies as it did in questioning the war in Iraq.

The only way to move forward is to regain a better balance between fear and reason. Let's start by admitting that the capacidty for fear is hardwired in the brain, with reason centered in the parts of the brain that evolved more recently. Accordingly, there will always be a strong emotional element in society's response to crime. This is not only due to the “fear factor," a tabloid tendency to focus on serial killers and notorious incidents like the Texas cop who tasered a great-grandmother during a traffic stop. It's because when people are harmed by crime, or there is a threat of harm, it naturally elicits an emotional response.

To reform the criminal justice system properly, we need to stop relying so h eavily on heuristic shortcuts like “three strikes and you’re out” and reclaim the capacity for both empathy and rational problem solving. Those qualities, no less than fear, are fundamental human capacities. Fascinating brain research continues to emerge, for example, about how "mirror neurons" contribute to feelings of empathy.

In July 2007, Homeland Security Secretary Michael Cherthoff claimed he had a “gut feeling” that there might soon be another terrorist attack on American soil. Well, he was wrong, and his statement played into the hands of the terrorists by making many Americans more fearful than was really necessary. As a friend put it to me yesterday over lunch, you can’t keep the threat level on orange for eight years; it just wears you out, and you become the boys who cried wolf.

Today, in national criminal justice policy, the Webb proposal offers a chance to look critically at what the threats really are. They are indeed real, but an over-reliance on prison to produce public safety has arguably made us − as a book on Bush’s response to 9/11 was titled − “less safe, less free.”

Wednesday, June 10, 2009

Trinity Sunday, 2009

Before and after St. Augustine, great minds have struggled to comprehend and express the meaning of the Christian doctrine of the Trinity.

As my St. Olaf classmate, Pastor Chris Smith, put it in his sermon last Sunday, none of the easy comparisons really cuts it. The Father, Son and Holy Spirit are like water, to be found in a liquid, frozen or gaseous state Well, yeah − but that’s really not a very compelling image. Or they are like a shamrock: one stem, three leaves. Sure, but too too cute.

Far better to embrace the mystery: God, in God’s self, is a community, offering, in contemporary terms, the ultimate social networking experience. I’m glad to be in LinkedIn (thank you, Ed Dykhuizen), and my wife, Diane, really enjoys Facebook. Listening to my classmate’s Trinity Sunday sermon, however, it occurred to me that the linking experience that really matters is my baptism, which connects me to a God so great that it takes three persons to even begin to point to the reality behind the name.

The essence of that reality is love. A love so powerful that it is like the nuclear fusion at the heart of the sun.

Still, somehow, inexplicably, there is evil cast among us.

For millions of Christians, this is where William Paul Young’s novel The Shack comes in. A middle-aged man whose daughter was abducted and murdered years ago has a mystical healing encounter with the Trinity, and it’s full of surprises. God the Father as an African-American woman. The Holy Spirit as a hard-to-pin down, faintly Asian woman. And, most accessibly, Jesus − a regular guy at home in a carpenter’s shop and virtually anywhere else.

What is the result, in The Shack, of the protagonist’s encounter with these three persons? It is, in short, an experience of healing, not only for himself, but for his remaining family. Full forgiveness of the man who murdered his daughter is not yet forthcoming, but the sheer difficulty of that process is acknowledged, and that in itself, to a great degree, is freeing.

Tuesday, June 9, 2009

Handcuffed Nation

Picture an elementary school carnival on a beautiful May evening, celebrating the rapidly approaching end of the school year. Excited children, proud parents, cotton candy, popcorn – and of course games. Pay your money and take your chance, with a few dollars getting you tokens and tickets to play ring-toss and other retro carnie contests harkening back to a less digital time in American life. All quite idyllic and almost timeless.

One of the game prizes my boys won, however, gave me pause. Most of the prizes were candy in one form or another, and there were various harmless small toys. One of those was a small pair of handcuffs. Though it was clearly a toy and not threatening in itself, its presence signaled to me an ominous reality. In America today, we all live in Prison Nation.

When and how did handcuffs become so ingrained in our culture that they become a throwaway toy at a school fair, like something in a box of crackerjacks? It happened in only one generation, as an incarceration explosion fueled by racial differences, flawed drug wars and cynical politics put 2.2 million people behind bars.

Nothing can change until we name the problem. A great deal of detailed and difficult work needs to be done to reorient sentencing and correctional policies so that handcuffs are not a ubiquitous symbol of an iniquitous system that drags down too many lives and drains too many dollars from more productive uses. Yet whether Jim Webb’s bill calling for a national commission passes this year or not, I feel sure − to again borrow a line from Dylan − a change is gonna come. It had better, because the hard rain is already falling.

Thursday, June 4, 2009

Prisoners' Right to Marry

The governor of New Hampshire signed legislation yesterday making same-sex marriage legal there, beginning on January 1, 2010. This brings the number of states to have done so to six — seven, if California is included. Approximately 18,000 same-sex couples were married in California before voters repealed the law permitting them by approving Proposition 8 in November, and those marriages remain valid.

Prominent attorney David Boies appeared on the Charlie Rose talk show in the evening to outline the status of a constitutional challenge to Prop. 8. He has filed the case and expects a ruling at the district court level to come possibly as early as this summer.

In laying out the rationale for an equal protection challenge to Prop. 8, Boies pointed to well established Supreme Court precedents holding that the right to marry is a fundamental right. The most widely known is still Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), striking down racial restrictions on marriage.

Another example of the right to marry as a fundamental right, Boies said, is prisoners’ right to marry. He did not get into the details of that case with Charlie Rose, but I looked it up. In Turner v. Safely, 482 U.S. 78, 107 S. Ct. 2254, 96 L.Ed2d 64 (1987), the Supreme Court upheld a prisoner’s right to marry, even if the marriage is to another prisoner. The litigation arose in a correctional facility in Missouri housing both male and female inmates.

What will happen when an inmate in a state allowing same-sex marriage wants to marry someone of the same sex? California has already given some thought to the issue, as NPR reported last summer.

To borrow a line from Dylan, The Times They Are A-Changin’

Monday, June 1, 2009

Murder in the Narthex

How much empathy can people opposed to abortion find for George Tiller, the Kansas doctor shockingly murdered on Sunday morning while serving as an usher at his church? Driving home from work tonight, listening on Minnesota Public Radio to various defensive, lukewarm statements from anti-abortion spokespeople, I heard little empathy for the victim, a man shot in cold blood in a church narthex as worship was beginning and his wife prepared to sing in the choir.

During the day, I had received an e-mail from my dear friend Cathy, letting me and others know that our friend Lowell Michelson is one of the pastors at Reformation Lutheran Church in Wichita, where the shooting occurred. His wife, Tera, and their three children arrived at the church just after the shooting but before the police arrived. As a clergy spouse myself who is often hustling to get to church on time with children in tow, I recoiled with vicarious horror at what the shocking scene in the narthex (the “foyer,” to the secular press) must have been like.

When I got home, and (with my spouse at a church meeting) got the kids to bed, I picked up Gil Bailie’s Violence Unveiled from my bookshelf. When the Gospel’s message of nonviolence and empathy for victims has begun to influence a culture but has not yet prevailed, Bailie writes (p. 75), “inept sacrificial systems tend to resort to greater violence in an effort to achieve the results they could once achieve with minimal violence.” Desperate for a catharsis, they try to revive their sagging social solidarity by targeting those whom they deem to be victimizers to be the victims of their version of righteous violence.

Though Bailie was not referring to abortion, the thread of his reasoning applies to the shooting at Reformation Lutheran. Those who espouse the “justifiable homicide” of abortion providers claim to be killing to defend victims. But isn’t someone who is killed for providing legal abortion services also a victim?

To Dr. Tiller’s killer, and others on the far right, the way around this contradiction is to deny the humanity of those with whom they disagree. They reach for toxic slurs about Nazi concentration camp doctors, instead of seeing real human beings. Take away the Mengele mask the killer tried to put over Dr. Tiller, and we find a man who took over his father’s clinic in 1970 and was so committed to his patients that he continued on despite violent attacks. The clinic was bombed in 1986 and he was shot in both arms in 1993.

Seeing Dr. Tiller’s humanity does not mean denying the wrenching nature of late-term abortion. Having recently watched the darkly disturbing film Four Months, Three Weeks and Two Days, I am aware this is a subject fraught with agony for all concerned. But the way forward has to start with empathy, and this includes empathy for Dr. Tiller and everyone else harmed, directly or indirectly, by his terrible, unjustifiable murder.