|
he New York Times
November 26, 2004
Legal Precedent Doesn't Let Facts Stand in the Way
By SABRINA TAVERNISE
The case was familiar, if disturbing. A Bronx man had been accused of
punching and threatening his girlfriend. But the woman refused to
testify. Prosecutors, though, soon got a break. A Bronx Criminal Court
judge appeared to stake out some novel legal ground just weeks after a
United States Supreme Court decision. He ruled that prosecutors could
use 911 recordings of the woman's anguished call for help as evidence,
even though she would not testify.
Within weeks, prosecutors and judges around the country seized on the
March 25 decision, by Judge Ethan Greenberg, citing it as important
precedent as they wrestled with their own cases. In all, the decision
would be referenced in 15 high-level court cases, from North Carolina
to Nevada, and it was included in the 2004 edition of a widely used
law textbook.
There was a problem, however, with the decision rendered by Judge
Greenberg in People v. Moscat. None of the assumptions the judge based
his opinion on were actually fact. The person captured on the tape in
that particular case was, it turned out, a neighbor, not the victim.
The call had been made some nine hours after the alleged assault, not
while it was happening. And prosecutors eventually abandoned the case.
Defense lawyers and prosecutors alike say the judge was simply eager
to be one of the first to interpret the Supreme Court's ruling, a way
to get attention in the legal world. The judge says that prosecutors
told him the victim was on the tape, an assertion that prosecutors
deny. He says he is comfortable with the heart of his decision.
Whatever the case, none of this seems likely to blunt the impact of
the ruling, which continues to have a legal life of its own. And in
that, People v. Moscat provides an interesting window into the world
of court decisions: how a ruling in March by a lower-court judge in
the Bronx almost instantly traveled through a network of lawyers and
judges eager to make new law, and how little it mattered that the
facts of the case did not apply.
"Moscat is leading the charge," said Richard D. Friedman, of the
University of Michigan Law School and a criminal law expert. Judge
Greenberg's ruling "is the most frequently cited decision in the 911
area."
The Bronx decision came as courts across the country were wrestling
with questions about how to prosecute crimes when accusers would not
appear for cross-examination. Courts were trying to find the balance
between punishing abusers and making sure they got the chance to
challenge their accusers, a right laid out in the Sixth Amendment to
the Constitution.
Shortly before the Bronx ruling, the United States Supreme Court took
up a piece of this complicated world. It ruled in Crawford v.
Washington, on March 8, that certain statements could not be
considered evidence at trial unless the defendant has the chance to
confront the person who made them.
The ruling shook up criminal courts across the country. Convictions
were overturned. Statements that used to be allowed at trial were
barred. In domestic violence cases, it had become common to prosecute
without the victim's participation, a practice that emerged from a
political push to crack down on domestic violence. The court's ruling
made that tougher.
But the decision left open the question of what kind of statements
could be considered evidence at trial, leaving lower courts to work
out the meaning. A central area of confusion was whether 911 calls
could be used in court. "Crawford left the outer boundaries so fuzzy,"
said Jeffrey L. Fisher, the Seattle-based defense lawyer who argued
the case before the Supreme Court. "The natural instinct was to have a
life preserver at sea - to say, someone here has dealt with the
question."
Judge Greenberg was one of the first to try to make sense of it.
He wrote that the Bronx case was "an early opportunity for trial
courts like this one to begin to work out in practice the meaning" of
Crawford. He said through a spokesman that he had thought about the
subject for days before writing the ruling, as it became clear that
the victim would not testify and the trial could not proceed without
the tape.
In his opinion, Judge Greenberg sought to define 911 calls under
Crawford, arguing broadly that they should be allowed at trial, as
electronic equivalents of "a loud cry for help," and that the clause
in the Sixth Amendment that spells out the right of defendants to
confront their accusers, "was not directed at such a cry."
Several weeks after the ruling, defense lawyers, bracing for a fight
in court, listened to the tape. They could not believe what they
heard.
"We were stunned," said David M. Jaros, the defense lawyer in the
case, who works for the Bronx Defenders, a group that provides legal
representation to the indigent. "All the essential facts the judge
assumed turned out to be wrong. And those facts were the basis for his
opinion."
Defense lawyers and prosecutors said the ruling came abruptly (it was
dated March 25, the same day the defense asked that the 911 tape be
barred) and seemed to indicate that the judge wanted to make a name
for himself - a charge the judge, through a spokesman, denied.
Judge Greenberg said that the ruling was simply a pretrial finding on
evidence and that he had taken care to state that prosecutors still
had to prove that the tape met the requirements for evidence at trial.
But the decision had already taken flight, carrying all over the
country the name of the Bronx case. In California, prosecutors cited
it in an appeal of a case in which a 911 caller identified a gunman. A
North Carolina appeals court judge quoted it in a kidnapping case. In
Washington State, prosecutors used it in arguing an appeal of a
domestic violence case that involved a 911 call.
John M. Tyson, the North Carolina judge who cited the ruling
extensively in a ruling in May, said that he was surprised to learn
the facts of the Moscat case, but that, simply put, Judge Greenberg's
reasoning fitted. "We were looking for a legal precedent," Judge Tyson
said. "Moscat was the case in point."
Legal history is not without cases of judges making decisions based on
mistaken assumptions. In a landmark ruling for personal injury cases,
Benjamin N. Cardozo, a Court of Appeals judge in New York, ruled in
1916 that a driver should be able to recover damages from a car maker,
after one of the driver's car wheels collapsed.
But at trial, a more nuanced picture had emerged. The driver had been
speeding and had hit a large patch of gravel in the road, said James
A. Henderson Jr., a professor at Cornell Law School, who discovered
the inconsistencies while studying the case for an academic article in
2002. "It's like an old friend you assumed you knew, and it turns out
you didn't," he said, referring to the case.
Judge Cardozo "thought a good appellate judge should not let the facts
of a particular case bind him," Mr. Henderson said. "The case was
screaming for that new rule of law, and the facts were kind of
annoyingly in the way."
Judge Greenberg's ruling, like Judge Cardozo's, is going down in the
legal history books for its reasoning. Prosecutors and judges who
cited it said in interviews this month that its legal thinking was
sound.
The defens
|
| |
| |
ove's White House " Murder, Inc." +
http://www.apfn.net/messageboard/10-02-04/discussion.cgi.23.html
By Wayne Madsen .
Online Journal Contributing Writer .
http://www.apfn.net/messageboard/10-02-04/discussion.cgi.23.html
http://www.onlinejournal.com/Special_Reports/052104Madsen/052104madsen.html
[ Forcibly Disabled by Karl Rove's Thugs,Arkansas ,B-Clombia, KSA-London
friends/Attorneys,...NCB etc.etc....]
http://www.outsupport.org/forum/viewtopic/985.html
DEC., 2004- On September 15, 2001, just four days after the 9-11 attacks,
CIA Director George Tenet provided President [sic] Bush with a Top Secret
"Worldwide Attack Matrix"-a virtual license to kill targets deemed to be a
threat to the United States in some 80 countries around the world. The Tenet
plan, which was subsequently approved by Bush, essentially reversed the
executive orders of four previous U.S. administrations that expressly
prohibited political assassinations.
According to high level European intelligence officials, Bush's counselor,
Karl Rove, used the new presidential authority to silence a popular Lebanese
Christian politician who was planning to offer irrefutable evidence that
Israeli Prime Minister Ariel Sharon authorized the massacre of hundreds of
Palestinian men, women, and children in the Beirut refugee camps of Sabra
and Shatilla in 1982. In addition, Sharon provided the Lebanese forces who
carried out the grisly task. At the time of the massacres, Elie Hobeika was
intelligence chief of Lebanese Christian forces in Lebanon who were battling
Palestinians and other Muslim groups in a bloody civil war. He was also the
chief liaison to Israeli Defense Force (IDF) personnel in Lebanon. An
official Israeli inquiry into the massacre at the camps, the Kahan
Commission, merely found Sharon "indirectly" responsible for the slaughter
and fingered Hobeika as the chief instigator.
The Kahan Commission never called on Hobeika to offer testimony in his
defense. However, in response to charges brought against Sharon before a
special war crimes court in Belgium, Hobeika was urged to testify against
Sharon, according to well-informed Lebanese sources. Hobeika was prepared to
offer a different version of events than what was contained in the Kahan
report. A 1993 Belgian law permitting human rights prosecutions was unusual
in that non-Belgians could be tried for violations against other
non-Belgians in a Belgian court. Under pressure from the Bush
administration, the law was severely amended and the extra territoriality
provisions were curtailed.
Hobeika headed the Lebanese forces intelligence agency since the mid- 1970s
and he soon developed close ties to the CIA. He was a frequent visitor to
the CIA's headquarters at Langley, Virginia. After the Syrian invasion of
Lebanon in 1990, Hobeika held a number of cabinet positions in the Lebanese
government, a proxy for the Syrian occupation authorities. He also served in
the parliament. In July 2001, Hobeika called a press conference and
announced he was prepared to testify against Sharon in Belgium and revealed
that he had evidence of what actually occurred in Sabra and Shatilla.
Hobeika also indicated that Israel had flown members of the South Lebanon
Army (SLA) into Beirut International Airport in an Israeli Air Force C130
transport plane, in full view of dozens of witnesses, including members of
the Lebanese army and others. SLA troops under the command of Major Saad
Haddad were slipped into the camps to commit the massacres. The SLA troops
were under the direct command of Ariel Sharon and an Israeli Mossad agent
provocateur named Rafi Eitan. Hobeika offered evidence that a former U.S.
ambassador to Lebanon was aware of the Israeli plot. In addition, the IDF
had placed a camera in a strategic position to film the Sabra and Shatilla
massacres. Hobeika was going to ask that the footage be released as part of
the investigation of Sharon.
After announcing he was willing to testify against Sharon, Hobeika became
fearful for his safety and began moves to leave Lebanon. Hobeika was not
aware that his threats to testify against Sharon had triggered a series of
fateful events that reached well into the White House and Sharon's office.
On January 24, 2002, Hobeika's car was blown up by a remote controlled bomb
placed in a parked Mercedes along a street in the Hazmieh section of Beirut.
The bomb exploded when Hobeika and his three associates, Fares Souweidan,
Mitri Ajram, and Waleed Zein, were driving their Range Rover past the
TNT-laden Mercedes at 9:40 am Beirut time. The Range Rover's four passengers
were killed in the explosion. In case Hobeika's car had taken another route
through the neighborhood, two additional parked cars, located at two other
choke points, were also rigged with TNT. The powerful bomb wounded a number
of other people on the street. Other parked cars were destroyed and
buildings and homes were damaged. The Lebanese president, prime minister,
and interior minister all claimed that Israeli agents were behind the
attack.
It is noteworthy that the State Department's list of global terrorist
incidents for 2002 worldwide failed to list the car bombing attack on
Hobeika and his party. The White House wanted to ensure the attack was
censored from the report. The reason was simple: the attack ultimately had
Washington's fingerprints on it.
High level European intelligence sources now report that Karl Rove
personally coordinated Hobeika's assassination. The hit on Hobeika employed
Syrian intelligence agents. Syrian President Bashar Assad was trying to
curry favor with the Bush administration in the aftermath of 9-11 and was
more than willing to help the White House. In addition, Assad's father,
Hafez Assad, had been an ally of Bush's father during Desert Storm, a period
that saw Washington give a "wink and a nod" to Syria's occupation of
Lebanon. Rove wanted to help Sharon avoid any political embarrassment from
an in absentia trial in Brussels where Hobeika would be a star witness. Rove
and Sharon agreed on the plan to use Syrian Military Intelligence agents to
assassinate Hobeika. Rove saw Sharon as an indispensable ally of Bush in
ensuring the loyalty of the Christian evangelical and Jewish voting blocs in
the United States. Sharon saw the plan to have the United States coordinate
the hit as a way to mask all connections to Jerusalem.
The Syrian hit team was ordered by Assef Shawkat, the number two man in
Syrian military intelligence and a good friend and brother in law of Syrian
President Bashar Assad. Assad's intelligence services had already cooperated
with U.S. intelligence in resorting to unconventional methods to extract
information from al Qaeda detainees deported to Syria from the United States
and other countries in the wake of 9-11. The order to take out Hobeika was
transmitted by Shawkat to Roustom Ghazali, the head of Syrian military
intelligence in Beirut. Ghazali arranged for the three remote controlled
cars to be parked along Hobeika's route in Hazmieh; only few hundred yards
from the Barracks of Syrian Special Forces which are stationed in the area
near the Presidential palace , the ministry of Defense and various
Government and officers quarters . This particular area is covered 24/7 by a
very sophisticated USA multi-agency surveillance system to monitor Syrian
and Lebanese security activities and i
|
| |
| |
Geragos has legally cleared Scott. he cannot control a runaway jury or
a corrupt legal system.
http://1st.shorturl.com
|
| |
| |
|
