Wednesday, February 22, 2006

93 arrests at '05 rave now hang in balance - THE FLINT JOURNAL

An update on the Flint "rave" case...

By Paul Janczewski • 810.766.6333

FLINT -A judge is expected to decide within 35 days whether to dismiss misdemeanor charges of frequenting a drug house against 93 people arrested last March at a rave party at Club What's Next.

Genesee Circuit Judge Joseph J. Farah also will rule if evidentiary hearings are needed for those arrested when police swooped in.

Farah listened to arguments from attorney Kenneth M. Mogill, who represents one woman arrested in the bust, and assistant Flint City Attorney Sam R. Terry.

Mogill also spoke for other attorneys and the American Civil Liberties Union, who are representing others arrested at the club March 20.

Flint police and the Genesee County Sheriff's Department arrested clubgoers after undercover officers and civilian operatives bought Ecstasy, LSD and a psychedelic mushroom inside the club, they said.

About 17 people, including the promoter, were arrested on felony drug charges. The other partygoers were strip-searched and arrested on misdemeanor drug possession charges or for frequenting a drug house, a maximum 90-day misdemeanor.

Officers seized Ecstasy pills, LSD, the so-called "date rape drug" GHB and Ketamine, an animal tranquilizer.

Mogill said the people whom he and others represent had a right to be at the club and should not be arrested for the actions and activities of others. He said one clubgoer was arrested blocks away after he left the club at 2511 W. Pasadena Ave.

None of the defendants represented by the ACLU had drugs or drug paraphernalia on them.

Terry said police conducted surveillance and used confidential informants before making arrests.

He defended the language of the city ordinance that was used to issue charges and said drug activity or sales were noted in 60 spots in the club.

"It's completely unreasonable to say (those arrested) could not have known" of the drug activity, he said.

Earlier, Flint city prosecutors offered plea deals to those charged in the raid, but the deals were apparently withdrawn when no one accepted them by an October deadline.

An evidentiary hearing would shed more light on the arrests and procedures. Mogill said police do not know when those present entered the club, their proximity to drug activity or that they had knowledge that it was occurring, information that could be revealed through such a hearing.

Monday, February 06, 2006

ACLU sues over sex-change ban - THE BADGER HERALD

More press coverage relating to Sundstrom et. al. v. Frank et. al. Rep. Suder seems to consider the nation's most prominent civil liberties organization to be "crazy".

by Ann Babe
Monday, February 6, 2006

The American Civil Liberties Union filed a lawsuit against the Wisconsin Department of Corrections Jan. 24, challenging the constitutionality of a state statute that prohibits inmate sex changes.

The lawsuit came in response to the complaints of four Wisconsin prisoners currently undergoing hormonal sex changes, who were temporarily forced to discontinue hormonal therapy after the passage of Assembly Bill 184.

The bill, signed into law early last month, mandates that state funds cannot be used to fund the hormone therapy or sex-reassignment surgery of prisoners or forensic patients.

Although AB 184 lead author Rep. Scott Suder, R-Abbotsford, backs the current law’s legitimacy, the ACLU views it as a form of cruel and unusual punishment.

“Prisoners have a constitutional right to reasonable and necessary medical care,” said Attorney Larry Dupuis, who is representing the ACLU of Wisconsin. “If the state provides care that is deliberately different to serious medical needs, that violates the Eighth Amendment … and that’s unconstitutional.”

According to the ACLU, the law also violates the Equal Protection Clause, as it specifically targets an identifiable minority and treats it differently.

A federal district court in Milwaukee agreed the law may prove unconstitutional and ordered a temporary injunction last month to make the law inactive until the lawsuit is concluded.

Suder disagreed, however, pointing to the lack of certifiable proof and reducing the health risks to “medical theories.”

“I think it’s absurd for anyone, especially a federal judge, to argue that sex-change therapy is somehow medicinal in nature,” Suder said. “The so-called disorder the ACLU is referring to is not a medically necessary treatment. It is a choice.”

The ACLU, however, said prominent medical groups, including the American Psychiatric Association, recognize afflictions caused by hormone discontinuation as real disorders.

“The Legislature tried to substitute their judgment for the medical judgment of doctors,” Dupuis said.

According to Dupuis, forcing sex-change patients to discontinue hormone therapy is medically irresponsible and downright dangerous.

The four prisoners experienced hot flashes, anxiety attacks, skin breakouts and psychological disorders, Dupuis said, adding even further risks of contracting diabetes and heart complications are possible.

Suder, however, refuted claims the law amounts to cruel and unusual punishment, instead calling the hormone therapy an unfair financial punishment for the state’s taxpayers.

“To stop forcing taxpayers to pay for sex-change therapy for prisoners certainly is not cruel and unusual punishment,” Suder said, adding for judges to rule otherwise is “the height of judicial activism.”

Though Suder said he does not have a lot of confidence in Attorney General Peg Lautenschlager to “vigorously fight against the lawsuit,” he said he and bill co-sponsors would fight to uphold the law.

“It’s unfortunate crazy groups like the ACLU think it’s a good idea to give sex-change operations to [prisoners], but we’re going to fight in any way we can and the fight certainly isn’t over,” Suder said, adding he is not ruling out a constitutional amendment.

The final hearing is scheduled for Aug. 24.

Friday, February 03, 2006

Sundstrom case a topic on this morning's Joy Cardin call in show on Wisconsin Public Radio

Co-counsel in the Sundstrom case, Larry DuPuis with the ACLU of Wisconsin, appeared on the Joy Cardin show this morning. You can listen to the show at the link below.

For Program On: Friday, February 3, 2006 at 6:00 AM
After six, Joy Cardin's guest from the A-C-L-U of Wisconsin explains why his organization is challenging the constitutionality of a state law that bans sex change therapy for inmates. Guest: Larry Dupuis (do-PWEE), legal director for the American Civil Liberties Union (ACLU) of Wisconsin.

Sundstrom case a topic on last night's "The Situation with Tucker Carlson"

Co-counsel in the Sundstrom case, Cole Thaler with Lambda Legal, appeared last night on "The Situation with Tucker Carlson". Not surprisingly, Mr. Carlson failed to grasp that the judgment of medical and psychiatric professionals ought hold weight in determining medical necessity.

CARLSON: It looks like non-English speaking drunks aren‘t the only ones getting a break these days. Thanks to yet another judge, transsexual prisoners in Wisconsin will continue to get expensive, gender changing hormone therapy, despite a new state law barring the use of taxpayer money for inmate sex changes.

Here to defend the right of prisoners to use your money for sex changes, Cole Thaler. He‘s a lawyer with the Lambda Legal Defense and Education Fund. He joins us live tonight from Atlanta.

Mr. Thaler, thanks for coming on.


CARLSON: The state law seems pretty clear. The people of Wisconsin don‘t want to pay for inmates to change their sex. So why should the taxpayers be paying for inmates to change their sex? I don‘t get it.

THALER: Actually, Tucker, the lawsuit that‘s been filed by Lambda Legal and the ACLU is not about any particular medical treatment. It‘s about what the Constitution requires prisons to provide in terms of health care to transgender inmates.

And the three clients that Lambda Legal and the ACLU represent have been receiving hormone therapy for a serious health condition for years and years, and the law that has been passed by the Wisconsin—Wisconsin legislators withdraws the treatments that they have been receiving for all of their adult lives and puts them at serious risk of harm.

CARLSON: OK. There is so much spin in the sentence you just uttered, I just want to unpack it here slowly. The therapy they‘re receiving for a serious condition, what is this serious condition afflicting these people?

THALER: The clients that Lambda Legal and the ACLU represent have been diagnosed with gender identity disorder, which has been recognized, both by the medical establishment and by all of the courts that have...

CARLSON: So are they going to die if they don‘t get it?

THALER: There are potentially life-threatening risks of not receiving it.

CARLSON: Such as? What, are they going to have a heart attack?

Cancer? What are the risks?

THALER: Hormone therapy, Tucker, affects every system in the body, including the cardiovascular system, the metabolism. There are serious health risks, including potentially suicide, self injury.

CARLSON: Now—I‘m sorry, Mr. Thaler. I want to treat, again, you with respect, but you‘re spinning me. These are people who are men who believe that somehow they weren‘t meant to be men and they should be women. And they want to be women. And they think the state should pay them to make the transformation to men to women, male to female. That‘s the bottom line. And you know what? To pass this off as some sort of an emergency appendectomy is not telling the straight truth.

THALER: Actually, Tucker, the bottom line is the substitution of the legislature‘s judgment about what‘s appropriate medical treatment for medical judgment. Legislators are not in the business of making medical judgment. That‘s the doctor‘s job.

CARLSON: Give me—give me a break. Doctors don‘t have a right in this country to decide societal norms. I‘m sorry. They‘re physicians. We respect them. They don‘t get to—they don‘t get to decide what the rest of society believes is acceptable and unacceptable. Voters do. It‘s a democracy. It‘s not a society run by doctors.

And people don‘t believe in Wisconsin—they said so, in a referendum they don‘t believe that a sex change is a medical necessity. Are you arguing that it is?

THALER: I‘m arguing that the medical providers that have been giving treatment to all of our clients have determined that this is medically necessary for them. And the Department of Corrections in Wisconsin pays doctors to make medical judgments. The reason that the Department of Corrections has doctors is to treat each patient individually and to provide medical treatment that is in accordance...

CARLSON: I can tell you‘ve been doing focus groups that tell you that throwing out the term “medical” is the way to success on this issue. But let‘s just—let‘s just keep this perfectly clear. These are people who believe that they should be another sex. They are not dying of anything. They don‘t have a chronic, physical condition. They don‘t have cancer. They don‘t have coronary artery disease. They don‘t have diabetes. They have a desire to become women. That‘s different than a chronic disease.

THALER: Actually, Tucker, the American Psychiatric Association recognizes that the risk of not providing treatment to people who have been diagnosed with gender identity disorder could have potentially disastrous consequences. That‘s the words and the term of the American Psychiatric Association. Gender identity disorder is a recognized, serious health condition.

CARLSON: So a bunch of shrinks—just because a bunch of shrinks says something is so don‘t make it so.

But let me just get to the kind of bottom line principle issue here. Don‘t the voters of Wisconsin have a right to determine what their tax dollars go to? And isn‘t that right expressed in the form of a referendum, an election? Don‘t they get to vote on it? Or do the shrinks run everything in Wisconsin and the Lambda Legal Defense Fund? Are you in charge now?

THALER: Actually, Tucker, 30 years ago the U.S. Supreme Court decided that the Eight Amendment set certain constitutional requirements for the healthcare that is provided to inmates in prison. And—and the contours and the scope of that treatment is appropriately determined by doctors. That is a policy that was in place prior to the Wisconsin legislature passing this law last month.

CARLSON: Doctors—doctors are not God, and a sex change operation is not a medical necessity. I feel sorry for these guys. I really do. I think they must be very troubled people. But I can understand why people in Wisconsin don‘t want to pay for it. But they probably will, because you seem like a smart guy. And you‘ll probably end up winning, unfortunately.

Cole Thaler, thanks a lot.

THALER: Thank you, Tucker.

Thursday, February 02, 2006

Wis. law can't stop four inmates' hormone treatments - Associated Press

MILWAUKEE (AP) -- A new Wisconsin law barring the use of state tax money for prisoner sex changes won't stop four male inmates from getting state-paid hormone treatments until at least August.

The law took effect last week, but the American Civil Liberties Union and Lambda Legal, an Atlanta-based advocacy group for homosexual, bisexual and transgender people, filed suit in U.S. District Court in Milwaukee on behalf of the four, challenging the statute as unconstitutional.

The law bars the state Department of Correction from using tax dollars for hormone therapy or gender reassignment surgery to treat prisoners for a condition of gender identity disorder.

The four inmates claim stopping the treatments would be cruel and unusual punishment and would violate their right to equal protection under law.

"The Legislature is substituting its judgment for medical judgment, which is causing serious harm to our clients," said Cole Thaler, the lawyer for three of the inmates.

State Rep. Mark Gundrum, R-New Berlin, one of the authors of the law, predicted it would withstand the challenge.

"It's ridiculous to ask the taxpayers to pay for this," he said.

A preliminary injunction issued last week by Judge Charles Clevert Jr. prevents the state from stopping the hormone treatments at least until he holds a hearing on the matter, scheduled Aug. 24.

People with gender identity disorder have a strong and persistent discomfort with their birth gender and wish to live as the other,

According to the Diagnostic and Statistical Manual of Mental Disorders, those with the relatively rare gender identity disorder can have trouble functioning in society and severe depression, in some cases leading to suicide.

The legal fight over treatment started in 2003, when inmate Scott Konitzer filed a lawsuit against the Department of Corrections. He is serving 123 years in prison for multiple armed robberies and stabbing an inmate.

Konitzer, now known as Donna Dawn Konitzer, has been getting hormone therapy as treatment for gender identity disorder since 1999.

He was seeking gender reassignment surgery, which the state has never permitted and can cost $10,000 to $20,000.

In reaction to his lawsuit, legislators passed the Inmate Sex Change Prevention Act, which was enacted Jan. 6 and was set to take effect Jan. 25.

On Jan. 24, three more inmates filed suit.

The four are the only Wisconsin prisoners getting hormone therapy, which costs from $675 to $1,600 a year.

Wednesday, February 01, 2006

What’s Truth Got to Do With It? The Burden of Proof Instruction Violates the Presumption of Innocence - THE WISCONSIN DEFENDER (FALL 2005)

By Erik R. Guenther

In Wisconsin state courts, jurors are instructed that their role is to find the truth. Wis JI - Criminal 140 instructs jurors that: “While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt. You are to search for the truth.”

This statement is read to jurors in every county in Wisconsin without objection. This portion of the instruction ought be objected to by the defense as it violates the right of the accused to the presumption of innocence. The instruction also is contrary to the multiple purposes served by the criminal jury trial.

Whatever our broader hopes for our justice system, carefully speaking, a criminal trial is not a search for the “truth.” In actuality, a trial is an evaluation of the evidence presented in order to determine if the State has proved each element of each alleged offense beyond a reasonable doubt.

The criminal trial serves a number of goals that are inconsistent with a lay understanding of truth, by using of a higher burden of proof; by limiting the ability to have new evidence (even of actual innocence) considered; by using the exclusionary rule, the Rules of Evidence and privileges to exclude evidence; and by using a non-expert jury.

In a criminal case, an accused is entitled to a determination at a burden of proof higher than that of civil cases. The use of a burden of proof higher than that in civil cases expresses a preference for erring on the side of liberty, not its loss. In re Winship, 379 U.S. 358, 372 (1970) (Harlan, J., concurring). By requiring that a jury return a verdict of guilt only if it finds that the allegation was proven beyond a reasonable doubt, the system reflects a preference for a truth that is probabilistic, not absolute, and thus different from a lay understanding of the term “truth.”

In all criminal trials, the system is one of uncertainty, which remains following a jury verdict. Some residual doubt typically exists as to whether the alleged acts were committed by the accused following a jury verdict. As such, the system does not seek “the truth;” it opines whether or not the State has met its burden of proof. An acquittal is not a finding of an accused’s innocence, but merely a finding that the State has not met its burden. A conviction is not a finding that an accused is actually guilty, but a finding that the State has met its burden of proof beyond a reasonable doubt.

As Professor Alan M. Dershowitz explained in Reasonable Doubts:

If the only goal of the adversary system were to find “the truth” in every case, then it would be relatively simple to achieve. Suspects could be tortured, their families threatened, homes randomly searched, and lie detector tests routinely administered. Indeed, in order to facilitate this search for truth, we could all be subjected to a regimen of random blood and urine tests, and every public building and workplace could be outfitted with surveillance cameras. If these methods -- common in totalitarian countries -- are objected to on the ground that torture and threats sometimes produce false accusations, that objection could be overcome by requiring that all confessions induced by torture or threats must be independently corroborated. We would still never tolerate such a single-minded search for truth, nor would our constitution, because we believe that the ends -- even an end as noble as truth -- do not justify every possible means. Our system of justice thus reflects a balance among often inconsistent goals, which include truth, privacy, fairness, finality, and equality.

The U.S. Supreme Court has made clear that the justice system also has an
interest in finality that may be more important than truth. The Court ruled that there are limits to the ability of inmates to raise new evidence even in claims of actual innocence. Herrera v. Collins, 506 U.S. 390 (1993)(finding that some wrongful convictions and even executions of innocent defendants must be tolerated due to the need for finality in capital cases.)

In Herrera, the Court declined to expand the right to habeas relief to cases of evidence of innocence. The Court stated that, “[it] would be ... disruptive of our federal system ... to provide for federal habeas review of freestanding claims of actual innocence.” Id. at 401. The majority opinion carved the possibility of an exception, by noting:

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.

Id. at 417.

This decision pointedly illustrates that “truth” is but one aim of the criminal justice system and that “finality” is another important aim of the system. In a different way favoring defendants, the justice system’s interest in finality is also expressed in the use of statute of limitations or statutes of repose to bar claims after a certain point in all matters other than murder. A statute of limitations values a concern for the stale recollection of witnesses, the possible lack of other evidence and the need for an individual to move forward in life without fear of criminal charge, over a general notion of truth: after all, truth has no arbitrary cut-off date.

The interest in finality is also illustrated by the prohibition against double jeopardy. The court system operates differently than the common idea of searching for truth in life or scientific or historical study, where new evidence can lead to a re-examination of what is true at any time.

The exclusionary rule also supports the idea that preventing police misconduct can compete with truth as a value, and in some cases may even transcend it. In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court fashioned a remedy for police misconduct which would not allow evidence obtained by police action in violation of the defendant’s constitutional rights to be introduced even at a state trial. Therefore, the jury was prevented from hearing evidence (in that case, learning about obscene materials found by the police) which would have helped reach a determination of the truth of the accusation. Even beyond the inability to hear evidence at trial, the Supreme Court went further and explicitly recognized that the deterrence of wrongful government conduct may be so important that it is worth the cost of freedom for a criminal.

The Rules of Evidence also filter the types of evidence that may be presented to a jury. The most basic rules filter evidence that is not relevant to a determination of these charges, or that is unduly prejudicial. The most telling example in Wisconsin may be the exclusion of details of prior criminal charges, which prevents a jury from focusing on the criminal history of the defendant and redirects focus instead upon the pending allegation. In contrast, outside of the courtroom, the nature of a prior conviction would matter in choosing whom to watch your child, whom to associate with as friends, and whom to date or marry. As such, the system expresses a preference against common factors used in making a decision and dictates that in determining whether to convict an individual of a crime, we ought minimize the criminal history presented to a jury to the number of prior convictions and not their nature.

Hearsay is also excluded from trials, with some exceptions. This is based on concerns for fairness (specifically, confrontation) and reliability. As the Wisconsin Court of Appeals has noted, “[h]earsay should be carefully scrutinized since it is often unreliable: the statement is taken out of context and the demeanor of the witness cannot be observed.” State ex rel. Ortega v. McCaughtry, 221 Wis.2d 376, 388, 585 N.W.2d 640, 646 (Wis. App. 1998). Additionally, out of court statements in criminal cases can offend an accused’s rights under the Confrontation Clause. Crawford v. Washington, 541 U.S. 36 (2004). Again, though, outside the courtroom we consider all sorts of hearsay and regularly sift it for reliability, rather than rejecting it outright.

Other evidence, although it may help lead a jury to the truth is
inadmissible based on the grounds of privilege. Conversations by an accused with his current or former counsel, his spouse, his physician, his priest, his therapist (and to a limited extent his Dean) are all deemed privileged. The context of these conversations generally cannot be introduced at trial. These privileges are based on principles that in some circumstances the ability of individuals to speak freely without fear of reprisal has an importance greater than truth. Similarly, the accused’s decision to remain silent cannot be introduced at trial under the Fifth Amendment, which recognizes the importance of freedom from self-incrimination by keeping the choice to exercise this constitutional protection from the jury.

Some evidentiary privileges also operate to the detriment of the accused. For example, the sexual history of an accuser is protected, with some exceptions, by the rape shield privilege, which keeps relevant information from a jury in order to encourage complainants to speak to police. Limitations are also placed on the accused’s access to relevant medical records of her accuser. In carving these exceptions, a value is placed on privacy and the benefits of confidential communications which is deemed greater than allowing a jurors to hear the contents of these conversations or reviewing documents which may help them reach a commonsense determination of the truth.

The search for truth is also limited by the use of a jury from the community. A different type of decision might be reached if stock traders sat as jurors in a white collar criminal case, or ex-convicts or law enforcement officers sat exclusively in criminal cases generally. In searching the truth in other situations, typically experts in the field conduct the investigation. However, in our trial system we explicitly require a jury of people without regard to their expertise, and one that cannot be segregated by use of peremptory strikes in a discriminatory manner.

Referring to a jury’s role as the “search for truth” thus misstates the jury’s unique role in the criminal justice system. The jury’s determination is something different than seeking the common understanding of “truth.” A lay jury makes a collective determination whether the evidence (limited by Rules of Evidence, constitutional rights of the accused, and specific privileges) is sufficient to demonstrate that the prosecuting party proved its case to a certain standard unique to the criminal court system (“beyond a reasonable doubt”). This evidence may only be presented once by the prosecution and in most circumstances there are time limitations within which an individual must be charged. Further, the jury is told to find the “truth,” but the accused is limited in providing relevant evidence based on the rape shield law, the Schiffra-Green decisions and other handicaps in getting relevant information regarding his accuser. Even following a trial, the jury does not and cannot know for certain whether the accused committed the offense despite its collective wisdom.

Therefore the courts ought not include the broad language in the final paragraph of Wis JI - Criminal 140 as it misstates the role of the jury. This paragraph detracts from the State’s burden of proof to the detriment of an accused.

Defense counsel should request that Wis JI - Criminal 140 be read without inclusion of the final paragraph describing the jury’s job as a “search for the truth.” The removal of this paragraph would charge the jury to do its duty in a manner more consistent with the presumption of innocence afforded to everyone who is criminally charged.