Lawmakers Reach Deal to End Cash Bail

The NYS Legislature appears to be on the verge of significant reformation of the criminal justice system (NYTimes, 3/30, A.24). Certainly there is an urgent need to end solitary confinement, a condition found akin to torture, to expand and expedite discovery in criminal proceedings and to insure speedier trials so that non-convicted persons do not languish in jail.

But the most challenging issue has been abolition of bail, a procedure which disproportionately imprisons the poor and minorities. The stumbling block to revision or repeal of the bail system has been disagreement about the standards to be used by courts in deciding who should be released and who should be held. One side argues that accused persons should be released without regard to risk of flight (the current test in New York) and without considering the risk to public safety (the "danger" factor used by federal courts and many states). Those resisting total elimination of cash/bond bail insist that judges should weigh the danger to the community of unconditional release.

History demonstrates that most defendants released without bail will return to court and will not engage in violence in the interim. Clearly, release without bail is the fair and preferred approach. However, it would be a mistake to legislatively prohibit judges from considering the risk of harm. While that determination may, indeed, be "subjective" it can be appropriately delimited by objective tests including the nature of the crime, the existence of documented threats and the defendant's mental state and criminal history.

The compromise apparently reached by lawmakers, to exclude serious crimes and those involving violence, may be a reasonable temporary solution. A permanent fix must provide for a rational way to assess the risk of release to public safety.

Effects of the Mueller Report

Political pundits are in agreement that President Trump and Republicans will use the outcome of the Mueller investigation as a cudgel in the 2020 election. In fact, that assault has already begun. It includes Mr. Trump’s vitriolic outburst calling the investigation a failed “illegal takedown “, Sara Sanders’ claim that the Democrats wasted two years and millions of dollars and Sen. Lindsay Graham’s call for an investigation of the investigators and renewed pursuit of Hillary Clinton.
The obvious response to these incredulous contentions is that the Mueller investigation was initiated by a Trump appointee, Ass’t. AG Rob Rosenstein after Republican James Comey was fired as FBI Director for looking into Russia-Trump campaign ties and was led by lifelong Republican Robert Mueller.
While Democrats had an obvious rooting interest in Mueller’s inquiry and did what they could to protect his tenure, it turns truth on its head to claim that the whole exercise and its costs are, somehow, attributable to Democrats.
Furthermore, to characterize as a waste of time and money an investigation which conclusively proved that the Russians had seriously interfered in our election and which brought to justice a clutch of high ranking Trump campaign and administration officials for criminal misconduct, is perverted and dishonest.
Presumably, we will learn, in the days to come, the details of Mueller’s findings, the full scope of disclosures made by Michael Cohen, Michael Flynn, Rick Gates and others, and of the actions taken by other investigative bodies including federal and state prosecutors and Congressional committees. And we will learn whether a true waste of time and money will be incurred in pursuit of Sen. Graham’s fishing expeditions.
In the meantime Congress must act to protect our democracy from further incursions by Russian hackers and Bots into our next election.

The Mueller Report

Against all expectations, based upon the summary just provided by Attorney General William Barr, Special Counsel Robert Mueller  has concluded that there is no evidence of any conspiracy between the Trump campaign or any persons associated therewith and the Russians to effect the 2016 election. On the issue of obstruction Mueller punted, reporting that he reached no conclusion one way or the other and left the decision, to be based on the information furnished, to Justice Department officials. Attorney General Barr, in consultation with Asst. AG Robert Rosenstein, has decided that President Trump should not be charged with obstruction based upon his review of the evidence and without regard to the question of whether a sitting president can be criminally prosecuted.

Mr. Barr, in deciding the obstruction issue, says he relies upon the absence of any underlying crime which might have been the subject of an attempt to obstruct. Also cited is the fact that much of the allegedly obstructive behavior took place in public and, therefore, was not corruptly motivated.

We may conclude from this that one may impede an investigator from obtaining evidence of criminal misconduct so long as the obstruction is transparent and successfully prevents the acquisition of evidence necessary to prove an underlying crime.

The Manafort Sentence

During the trial of Paul Manafort Judge T.S. Ellis III acted injudiciously by wrongly commenting on the evidence and expressing his opinion as to the credibility of a witness in the presence of the jury thus, improperly, encroaching upon the province of that body as the finder of fact. Judge Ellis exhibited open hostility to the prosecution and an irascible temperament unbecoming a jurist. 

Therefore, it is not surprising that Judge Ellis has further demonstrated his lack of fitness by inexplicably characterizing the life of Mr. Manafort as "blameless" and by imposing a sentence of such unwarranted leniency as to virtually obliterate the Sentencing Guidelines. Such an unjustifiably short prison term calls into question the even-handedness and impartiality of our system of justice. Judge Ellis has done a great disservice to the rule of law. Hopefully, Judge Jackson will act more appropriately when sentencing Mr. Manafort next week.

The Manafort Sentence

During the trial of Paul Manafort Judge T.S. Ellis III acted injudiciously by wrongly commenting on the evidence and expressing his opinion as to the credibility of a witness in the presence of the jury thus, improperly, encroaching upon the province of that body as the finder of fact.

Therefore, it is not surprising that Judge Ellis has further demonstrated his lack of fitness by inexplicably characterizing the life of Mr. Manafort as "blameless" and by imposing a sentence of such unwarranted leniency as to virtually obliterate the Sentencing Guidelines. Such an unjustifiably short prison term calls into question the even-handedness and impartiality of our system of justice. Judge Ellis has done a great disservice to the rule of law.

The Manafort Sentence

During the trial of Paul Manafort Judge T.S. Ellis III acted injudiciously by wrongly commenting on the evidence and expressing his opinion as to the credibility of a witness in the presence of the jury thus, improperly, encroaching upon the province of that body as the finder of fact.

Therefore, it is not surprising that Judge Ellis has further demonstrated his lack of fitness by inexplicably characterizing the life of Mr. Manafort as "blameless" and by imposing a sentence of such unwarranted leniency as to virtually obliterate the Sentencing Guidelines. Such an unjustifiably short prison term calls into question the even-handedness and impartiality of our system of justice. Judge Ellis has done a great disservice to the rule of law.

The State of Russiagate

 

Ross Douthat, in his Op-ed, "the State of Russiagate"  (3/3/19, SR11), analyzes the testimony of Michael Cohen to assess the accuracy of the Steele Dossier and to predict that the impending Mueller Report likely will exonerate Donald Trump from willfully conspiring with the Russians. To the extent that Mr. Douthat's piece relies upon Mr. Cohen's testimony to undercut the Dossier, I submit that Mr. Douthat has chosen the wrong standard of measurement.

Sean Hannity perpetually proclaims that the Steele Dossier was compiled by a foreign spy who hates Donald Trump and was fed Russian lies paid for by Hillary Clinton to damage the Trump campaign. Hannity always adds that Steele himself expressed doubt about the veracity of his report which had been used by a renegade FBI and Department of Justice to defraud FISA court judges. Each of these assertions are either falsehoods or half-truths.

Christopher Steele was a long-time, respected operative of British intelligence with a network of Russian informants who, at great risk , provided information in defiance of the Russian government which, as even Putin has admitted, favored Trump and which has been shown to have been interested in promoting his campaign, not damaging it. Steele was a trusted and valued source for American intelligence and provided useful information in the past. Steele's promulgation of the Dossier was driven not by a hatred of Trump per se but by an abiding apprehension that Trump could be a tool of the Kremlin, thus posing a grave danger to the West.

The claim that he doubted his own report is based on testimony given by him at a deposition in which he reportedly said, in effect, that he could not confirm that the Russians had proof of Trump's sexual shenanigans in Moscow and that the odds of a particular incident (the "Golden Shower") being true was probably 50-50. He did not otherwise express doubt about the substance of the Dossier.

Steele's inquiry into Russian influence on Trump was initiated at the request and expense of a Trump opponent in the Republican primary and was only later taken up by the Clinton campaign. The Dossier's claims, which have been substantially proven, never surfaced during the campaign and, contrary to Hannity's harangue, were never used to damage his possible election. Furthermore, the use of the Dossier, to obtain FISA warrants, was made with full disclosure and did not mislead FISA judges.

So, whether Mueller finds that the Trump campaign was a knowing collaborator with Russia's interference in the election or was just a witless and willing tool in that effort remains to be seen. But I am confident that Mueller's conclusion will not be based upon a refutation of the Steele Dossier or Michael Cohen's alleged ignorance of collusion.