Sept. 16 USA: Roberts' Pitch More Like a Curveball ---- It's unfair for Supreme Court nominee to liken the job of a justice to that of an umpire because, unlike baseball, opinions of law can't be verified Supreme Court nominee John G. Roberts has been telling the Senate that it doesn't matter where his team loyalties lie because he knows that his job as a judge is "to call balls or strikes and not to pitch or bat." This opening statement to the Senate Judiciary Committee - which concluded hearings yesterday and is scheduled to vote on Roberts' nomination Thursday - was meant to reassure members that he will not be a judicial activist. I am not reassured. The idea that a judge interpreting the Constitution is just calling balls and strikes is a pernicious myth. In the Nixon era, it was called "strict constructionism." Conservatives argued that because the Constitution has an objective, discoverable meaning - a fixed strike zone - judges who interpret the Constitution expansively (as protecting, for example, a right of privacy) are simply wrong. Constitutional interpretation is not baseball. A baseball fan looking at an instant replay can often verify that what the umpire called a ball really was outside the strike zone. But how can an observer tell if a judge was correct in interpreting the Constitution as containing a right to privacy? A judge must make choices among politically charged competing theories of constitutional interpretation to decide such questions, and so must the observer evaluating the judge. For example, the Constitution prohibits "cruel and unusual punishment." Some judges believe that executing juveniles or the mentally retarded is not "cruel and unusual punishment" because the framers of the Constitution did not disapprove of such executions. Others believe that it is cruel and unusual because evolving standards of decency have led many states and most other countries to condemn these practices. In deciding whether the Supreme Court was correct in adopting the latter view, a reader will make the same kinds of choices the justices made. In my own informal polls, virtually every Republican thinks the Supreme Court's reasoning in Bush v. Gore was correct; virtually every Democrat thinks the majority was wrong. We have sharp disagreements not only about results but even about the shape and size of the strike zone itself: Is it the court's job to decide questions about abortion, the death penalty and election process, or to leave such questions to the political branches? Roberts also reassured the senators that he will keep an open mind as a justice. We expect umpires not to show any team loyalty at all. Fans can argue about whether particular umpires are being impartial, but at least everyone shares the same frame of reference - a clearly defined strike zone with slight variations among different umpires. My sports fan husband notes that there is not total uniformity even among umpires, some of whom call strikes at a low knee or high shoulder level. But because our ideas about location of the constitutional strike zone vary a lot more radically than that, being an open-minded judge is more of a challenge than being a fair umpire. Another myth floating around the confirmation hearings held that Roberts is a cipher and we do not know what kind of decisions he will make as a justice. Roberts has, of course, left a long paper trail of memos from his years of service within the government (not all of which have been released to the Senate). He says that these memos don't count because as a lawyer for the Reagan and Bush administrations, he was not necessarily expressing his own beliefs. This slate-wiping is too convenient and too broad. The briefs Roberts wrote for the government do indeed represent his clients' choice of position. But many of the memos Roberts wrote urged his employers to take more extreme positions to resist expansive enforcement of civil-rights laws, for example. In some memos, he certainly seemed to be writing in his own voice: "I honestly find it troubling . . ." The memos show that, as his colleague Bruce Fein said, he was one of an "ideological band of brothers." Roberts contends that he can put aside his firmly held conservative views when he dons his judicial robes. I don't doubt that he intends to be open-minded, but I do doubt that he can or will shed his partiality. Kenneth Manning, a political scientist who has studied the 190 decisions Roberts has made so far as an appellate judge, concludes that his positions are "very" conservative on criminal justice matters (compared with other appellate judges, not exactly a liberal group), and "exceptionally" conservative in cases involving civil rights and civil liberties. Are these the calls of an impartial umpire, or results of the instinctive positioning of an experienced fielder loyal to his team? (source: Newsday; Susan N. Herman is a professor at Brooklyn Law School.) CALIFORNIA: Abbott convicted, could get death penalty A West Covina man was convicted of murder, robbery and burglary on Thursday for shooting an armored car guard during the robbery of an Ontario bank. West Valley Superior Court jurors also found true special circumstance that make Joe Henry Abbott eligible for the death penalty for the October 2000 killing of 25-year-old Samuel Saenz of Hesperia. "It's such a relief to know he's not getting away with this," Saenz's mother Carmel Ruelas said. "Now I want him to get the death penalty." A 7-man, 5-woman jury deliberated for about 5 hours over 3 days before announcing its verdict Thursday afternoon in Rancho Cucamonga. The verdict means Abbott's trial will enter a second phase in which the same jury that convicted him will decide whether he should be executed or spend life in prison with no chance for parole. That phase of the trial is set to begin Sept. 26. Saenz, a Brink's security guard, was killed inside the Bank of America at 735 N. Euclid Ave. on Oct. 30, 2000, while wheeling a bag of cash from the vault to his armored car. Abbott rushed up from behind and shot the married father 3 times, authorities said. The first 2 shots knocked Saenz to the ground, but were not fatal. Abbott, 35, fired the 3rd and deadly shot at the prone and defenseless guard before fleeing with the bag that contained some $225,000 in cash, authorities said. According to testimony in the trial, Abbott, a black man, paid a Hollywood makeup artist to disguise him as an old white man the day before the robbery. 11 San Bernardino County sheriff's deputies stood guard in the courtroom on Thursday as Judge Craig Kamansky read the jury's verdicts. Abbott sat calmly with his chin held high during the brief hearing. Members of Saenz's family wept silently in the courtroom gallery. Afterward, Saenz's widow and mother hugged and thanked Deputy District Attorney Michael Dowd and Ontario police Detective Pat Sandford for winning the conviction. "This whole episode is so tragic," Dowd said. "It's hard for me to say I'm happy about the verdict, but I am pleased for the family. This is an opportunity for them to try to put this behind them." The verdict Thursday fell on Ruelas' 53rd birthday, prompting her to reflect on the 5 years she's spent trekking to court and awaiting justice for her son. "I've heard over and over for 5 years how my son was killed," she said. "It's finally coming near to an end. A chapter on my son is closing." Besides convicting Abbott of murder, burglary and robbery, the jury found true special circumstances of lying in wait, murder during a robbery and murder during a burglary. Those circumstances make Abbott eligible for the death penalty. Abbott's lawyer, Michael Belter, declined to comment Thursday because the trial is not yet over. Abbott is the 5th and final defendant to be convicted in the robbery. Getaway driver Edward "Monster" White was convicted of murder and sentenced to life in prison. 3 other accomplices - Lenard Wilkes, Frewoini Berhane and Brenda Maza - cooperated with prosecutors and agreed to plea bargains. They are awaiting sentencing. (source: San Bernardino COunty Sun) ALABAMA: Mistrial called in four killings in Center Point The capital murder trial of a man accused of the execution-style shooting deaths of four people ended with a mistrial. Jefferson County Circuit Judge William Cole declared a mistrial shortly before 3:30 p.m. Wednesday after a closed-door meeting with attorneys. Cole dismissed 14 jurors, including 2 alternates, who were selected Tuesday. A relative of the man facing charges said Wednesday that the mistrial stemmed from concerns about the interpretation of testimony by Osman Valladres, who testified in Spanish and had an interpreter translate his remarks. Kenny Billips, 31, and three others are charged in the Dec. 16, 2003, deaths of 4 unarmed Hispanic men who showed up for a drug deal at an apartment in Center Point. Others charged in the slayings are Charles Cooper, 28; Quinton Parrish, 23; and Catrania C. Robina, 25. They have pleaded not guilty. Billips will be tried later. Before the mistrial was declared Wednesday, Billips' defense lawyers objected to Valladres using an interpreter, arguing he had been in the U.S. for 10 years and could speak English. The interpreter quoted Valladres as saying he wanted an interpreter so the victims' families could understand him. He told jurors he was forced at gunpoint to set up the drug deal that led to the murders of Manuel Perez Nunez, 27; Enrique Marquez, 16; Rafael Salcedo, 15; and Wilbur Gomez, 20. Billips' attorney tried to discredit Valladres by suggesting he was testifying in exchange for leniency on charges of attempted murder and shooting into an occupied vehicle, which resulted from a separate case. The 4-fatality slaying is not the only case facing Billips. He is also charged with capital murder in another slaying that occurred 3 days before the 4 victims were killed in Center Point. (source: The Birmingham News) OHIO: Colleague questions inspector's credibility ---- Investigator is key in 1982 murder case New questions have been raised about the integrity and professionalism of former Postal Inspector Paul Hartman - the investigator most responsible for putting John Spirko on death row for the 1982 slaying of a rural postmaster. Only this time, the questions are coming from one of Hartman's own - a fellow postal inspector, with 23 years on the job, who worked with Hartman in the Cleveland office during the 1990s. In a letter to a superior 2 weeks ago, Postal Inspector Gregory Duerr said that he had witnessed conduct by Hartman that was "bordering on criminal," that more than a dozen colleagues had filed complaints about Hartman's behavior in the late 1990s, and that Hartman "retired sooner than he wanted." Hartman could not be reached for comment, although he testified in June that he was not aware of ever being the subject of a complaint. His former boss, Tom Macioch, now retired, characterized the late-1990s complaints as criticism over a management style and said Hartman's retirement was voluntary. In his letter, Duerr wrote that, based on press reports and conversations with inspectors in the Cleveland office at the time postmaster Betty Jane Mottinger was killed, "it appears an individual who did not commit the crime is going to be executed." Duerr's letter described no specific behavior by Hartman. He declined Thursday to discuss the letter, referring questions to his boss, Agent in Charge Dugan Wong. Wong did not return a phone call seeking comment. Hartman's credibility has become central in the battle over Spirko's life. And Duerr's letter could play a role next month as the inmate's lawyers make a 2nd bid for clemency before the Ohio Parole Board. A divided board on Aug. 30 recommended against clemency. A federal judge this month declined to reopen Spirko's case, leaving the inmate to face a date with the executioner next Tuesday. But last week, amid concerns about the accuracy of evidence presented by the state during the 1st Parole Board hearing, Gov. Bob Taft delayed the execution, and the board scheduled a second hearing for Oct. 12. Spirko's lawyers, who released Duerr's letter, have asked state Attorney General Jim Petro's office and the Parole Board to demand all documents pertaining to the complaints Duerr cited and the testimony of all those who complained. Spokeswoman Kim Norris said the attorney general's office takes Duerr's letter seriously but believes it contains nothing new. Petro's office also noted that Duerr has no personal knowledge of the Mottinger case. And a Postal Service memo indicates Duerr could not recall details of conversations he had with colleagues about the case. Spirko denies that he had anything to do with Mottinger's murder, although Petro insists the conviction was just. It was based largely on a series of jailhouse interviews by Hartman, in which Spirko purportedly revealed knowledge of the crime that prosecutors said only the killer could know. His attorneys have disputed that. Hartman's credibility was called into question when he recently acknowledged - in interviews with The Plain Dealer and others - that he never believed a key piece of evidence that was used against Spirko during his 1984 trial. Duerr's letter has revitalized that issue. In March, The Plain Dealer asked the U.S. Postal Inspection Service for all documents pertaining to a late-1990s inquiry into Hartman's investigative techniques or practices. Citing Hartman's privacy, the agency declined to release any such documents and, following an appeal, said "the requested records were properly withheld." Macioch, Hartman's former boss, said Thursday that he doesn't recall whether any documents were generated from what he described as an inter-employee mediation. Macioch said the complaints had nothing to do with Hartman's investigative integrity. "It was more style than anything else," he said. (source: Plain Dealer)
