Friday, February 17, 2006

Who Is Responible for the Forged Morales Declarations?

Who is Kathleen Culhane?

Well, we know that her name appears on five false juror declarations submitted by Ken Starr and David Senior on behalf of rapist and murderer Michael Morales.

We know that her name appears on at least one false witness declarations submitted by Ken Starr and David Senior on behalf of rapist and murderer Michael Morales.

We know that she submitted her own declaration that is false.

We know that Starr and Senior where notified on February 6th that at least one declaration was false.

We know that Starr and Senior stood by her declarations until they were all withdrawn on Monday the 13th. (See Michael Morales' Clemency for links.)

But who is Kathleen Culhane?

According to an investigation by the San Francisco Chronicle she:
was employed by the Habeas Corpus Resource Center between 2001 and 2005, the agency said Thursday.

The California Department of Consumer Affairs said she was not a licensed investigator.
And that's about it.

The Associated Press tried to talk to her but "Culhane declined to speak with them last week and her San Francisco phone was disconnected Thursday. The address listed on a business card she left with one juror led to a San Francisco business that rents post office boxes."

She has hired an attorney though.
Her attorney, Stuart Hanlon, said Culhane committed no wrongdoing and that there was no discrepancy with the signatures she submitted and the ones obtained by state investigators.

"We're comfortable that she didn't do anything wrong and we want to investigate the case," Hanlon said. San Francisco Chronicle
We'll see if he eats these words much like Senior did when he accused the prosecutors of intimidating the jurors whose names were on forged declarations submitted by Culhane.

It will also remain to be seen what if anything happens to Starr, Senior and Ben Weston, another Morales attorney.

Some experts with third hand information believe they are off the hook:
Gerald Uelmen, a Santa Clara School of law professor, said there was no ethical breach by either lawyer because they trusted an investigator who signed sworn declarations that she was telling the truth. In addition, Culhane worked four years at the Habeas Corpus Resource Center, which gave her work high marks. San Francisco Chronicle
Once Starr and Senior were on notice of problems with the declarations, "they acted apparently immediately and exactly appropriately,'' said Monroe Freedman, a law professor at Hofstra University in New York and a national authority on legal ethics. San Francisco Chronicle
But Mr. Freedman, they did NOT do that. They were put on notice on Monday the 6th and their response was to accuse the DA's office of coercion of a witness and then they submitted 5 more forged declarations by Culhane.

While currently there is no evidence that any of them has anything to do with the forgeries, I and others believe that ultimately, as attorneys, they bear an ethical obligation not present documents with out a good faith belief in them.
One who disagreed was Walnut Creek attorney Carol Langford, who teaches at UC Hastings College of the Law and is co-author of the textbook "Legal Ethics in the Practice of Law.'' She said Starr and Senior should have known something was amiss when prosecutors first presented evidence that the prosecution witness' recantation was forged.

"My view is that these lawyers were trying so zealously for their client that they crossed the line,'' she said
. San Francisco Chronicle
San Francisco attorney Richard Zitrin, who has written three books on legal ethics and teaches a course on the subject at Hastings and the University of San Francisco, said the defense lawyers were obliged to "sit down with the investigator and give her the third degree'' after the first hint that she might have forged a document.

Besides a lawyer's duty not to mislead a court or a governor, Zitrin said, "you also have an obligation to your client not to present false testimony, because it's going to come out and your client is going to get slammed.''
San Francisco Chronicle

Deputy District Attorney Robert Himelblau said Starr and Senior, the lawyers who prepared the clemency papers, may not have known of the alleged fabrications but were responsible for the documents they filed.
"The buck stops here,'' Himelblau said. After accusing the prosecutors of dishonesty in the exchange over Felix, he said, the lawyers now "owe an explanation to the district attorney's office, to the governor, to the jurors who (they) lied about, to the witnesses who (they) lied about, and finally to the people.'' San Francisco Chronicle

Morales Denied Despite Starr Power

Today, Ken Starr and David Senior held a press conference to discuss, among other things, their submission of forged documents in their Writ of Habeas Corpus and Petitions for Clemency. (Michael Morales Case)

Earlier this weeek, Starr, alone, held a smaller "closed" conference but it's not being reported what he actually said.
Starr held a question and answer session at the School of Law Wednesday, where he explained the case to law school students, professors and administrators. Pepperdine University Graphic, 2/16/06
I would love to hear from any Pepperdine students in attendance.

At today's press conference, Starr and Senior attempted to deflect the issue of fraudulent declarations and tried to focus the press on the value of sparing the life of of a rapist-murder because he said he's sorry. It didn't work very well.

As Starr was about to give his conference, word came down that Gov. Arnold Schwarzenegger denied Morales clemency:
"Nothing in the record or the materials before me compels a grant of clemency. The pain Ms. Winchell's loved ones have been forced to endure at the hands of Morales is unfathomable as is the brutality of the acts he perpetrated."
Starr, expressed his disappointment and then bowed out. He was only there for the clemency and nothing else so he bailed.

Starr already has told the press that:
"Society is not equipped to handle death penalty cases because of resources. ... Large law firms are not willing at this stage to take these cases on, at a cost of many thousands of dollars, in order to make sure that if the public wants the death penalty, it is not administered with arbitrariness and caprice.

[I support capital punishment but it should be] reserved for the most heinous crimes but enshrouded with the most exquisite safeguards. ... This is not frontier justice.

It will be an act of illegality for this execution to go forward next week, and people should be upset about that."
San Francisco Chronicle, 2/17/06



Sounds like he's anti-death penalty to me. Being for capital punishment in the abstract and requiring Platonic perfection, is the same as being against it. What are these "exquisite safeguards" he refers to?

In the Morales case, Morales confessed to raping and murdering 17 year old Terri Winchell. The murder weapons with her blood on them were found in his apartment. Guilt doesn't seem to be an issue.

What does Starr require, a unanimous verdict by 12 unbiased adults of the community watched over by a neutral judge constrained by rules of evidence in a public trial argued by state licensed lawyers reviewed by state and federal appellate courts? Well, we have that.



What Starr and Senior insist is the issue is the alleged false testimony of jail house informant Bruce Samuelson.

The issue of Samuelson’s testimony has been briefed, argued and resolved in multiple courts and remains to be an non-issue resurrected only by fallacious arguments made by Mr. Morales’ defense team. So desperate to make Samuelson a key part of their argument, forged documents were submitted by the defense in order to bolster their claims. Those documents, as well as other false documents, have now been withdrawn by the defense.

There is a mountain of evidence corroborating Mr. Samuelson’s testimony, including all the testimony received in the separate trial of Ricky Ortega, Mr. Morlaes’ co-defendant. Both Mr. Ortega’s statement and Mr. Morales’ own confession, where he admitted to raping and murdering Terri, corroborate Mr. Samuelson’s testimony.

Starr and Senior also falsely claim that Samuelson's testimony was "key" to the jury's decision to recommend death for Morales.

In fact, that was the whole impetus for submitting the forged juror declarations; to have the jurors claim that Samuelson's testimony was the deciding factor.

Fortunately, the prosecutors found these declarations to be fake. What's more, the jurors interviewed denied that Samuelson was key and said they voted for death based on the facts of the crime; a decision that they stand by. (Authentic Juror Declarations)

As "Juror Anita" said on February 9th (aired February 11th) on the John and Ken Show, "He was a jail house informant and we took what he said with a grain of salt." (paraphrased)

In a second to last gasp, Starr and Senior filed a Writ of Habeas Corpus in the California Supreme Court on Friday, February 10th. In it they argued the Samuleson issue yet again. (Also in the Writ was a claim of more false testimony but since that was based on a forged declaration, it was withdrawn by Senior.) On Wednesday, the Court again rejected the claim. San Francisco Chronicle 2/15/06.

Now Senior is left alone, abandoned by Starr, sputtering beating the same drum beat that has been ignored by every court that has heard the Morales case. Desperate to distance themselves from the over half-dozen false or forged declarations in their clemency papers, Senior and the rest of what is left of hus team, will continue to erroneously point to testimony that was neither false or key.

It's time for Starr to be honest and admit he's just against the death penalty. It's also time that Morales' sentence be carried out.

Thursday, February 16, 2006

Cheney: "My Bad," Part 2 --- Plame Status Declassified in 2003?

Apparently, for the last 2 1/2 years during DOJ investigating, Ashcroft feet-dragging, Special Prosecutor appointing, grand jury impaneling, reporter subpoenaing and jailing, Supreme Court arguing, and Chief of Staff perjuring, it's all been one big fucking mistake.

Is it possible that Cheney declassified Plame's identity as a CIA agent but was so concerned with how Joe Wilson felt, he forget to mention it to anybody?
Vice President Dick Cheney said Wednesday [February 15th, 2006] that an executive order gives him the authority to declassify secret documents, but he would not say whether he authorized an indicted former aide to release classified information. Associated Press
Now, is he just saying that to deflect stories about his bad aim, flex his muscles or did he actually declassify Plame's status?

Did he declassify the Plame Memo memo as well?
A classified State Department memorandum central to a federal leak investigation contained information about CIA officer Valerie Plame in a paragraph marked "(S)" for secret, a clear indication that any Bush administration official who read it should have been aware the information was classified, according to current and former government officials.
If he actually declassified this information "to defend the Bush administration's use of prewar intelligence in making the case to go to war with Iraq", it is clear why he did so.
The implication from the disclosure that Mr. Libby had authority to discuss sensitive intelligence matters with the press "is that the White House -- the vice president -- has been using his declassification authority as a way to advance the administration's political agenda," said Steven Aftergood, director of the project on government secrecy at the Federation of American Scientists. "In other words, information that supports the administration's position on Iraq or whatever is selectively declassified and other information is not. That's not a criminal offense, but it's kind of sleazy." WSJ, 2/11/06
But if the information was declassified, why would Libby lie about a "non-leak" to the grand jury? (National Journal) A simple matter of habit?



If Cheney didn't declassify Plame's status or the memo, what did he declassify, if anything?

This question looks like it maybe answered in the Libby trial in 2007 because right now, it appears to be part of Libby's defense.
I. Lewis Libby Jr., the former chief of staff to Vice President Dick Cheney, told a grand jury that he was authorized by his "superiors" to disclose classified information to reporters about Iraq's weapons capability in June and July 2003, according to a document filed by a federal prosecutor. NYT, 2/10/06
How many "superiors does Libby have? Bush and Cheney seem to be it. Cheney has already indicated that he believes he will be called to testify at Libby's trial. It would be astounding if Cheney admits that late in the game that the Plame information was declassified and all of the legal proceeding were for naught.

Something about all of this smells worse than it did before and it's not the rotting carcass of a dead quail.

Wednesday, February 15, 2006

Ann Coulter: Slandering and Plagarizing Media Whore but Voter Fraud Too?

Ann, my sweet Ann.



Her rhetoric is infammatory.
"Liberals hate America. They hate all religions except Islam. Liberals love Islam, hate all other religions."
"We should invade their countries, kill their leaders and convert them to Christianity. We weren't punctilious about locating and punishing only Hitler and his top officers. We carpet-bombed German cities; we killed civilians. That's war. And this is war."
"[I]t's far preferable to fight [terrorists] in the streets of Baghdad than in the streets of New York (where the residents would immediately surrender)."
"I think there should be a literacy test and a poll tax for people to vote."
And sometimes homicidial.
"My only regret with McVeigh is he did not go to the New York Times Building."
"We need somebody to put rat poisoning in Justice Stevens' creme brulee," Coulter said. "That's just a joke, for you in the media."
"If we find out someone [referring to a terrorist] is going to attack the Supreme Court next week, can't we tell Roberts, Alito, Thomas and Scalito?"
(Responding to a question from a Catholic University student about her biggest moral or ethical dilemna) "There was one time I had a shot at Clinton. I thought 'Ann, that's not going to help your career.'"
Her thoughts not so original.
Much of Coulter's Jun. 29, 2005 column, “Thou Shall Not Commit Religion,” bears a striking resemblance to pieces in magazines dating as far back as 1985—and a column written for the Boston Globe in 1995.
Between July 6th and November 3rd, 12 of the 16 columns Ann wrote were on Justice O'Connor's retirement and her potential replacement on the Supreme Court.

November 3, 2005 DEMOCRATS STICK FORK IN OWN HEADS
October 26, 2005 IT’S MORNING IN AMERICA!
October 19, 2005 WHO WAS THE SECOND CHOICE?
October 12, 2005 DOES THIS LAW DEGREE MAKE MY RESUME LOOK FAT?
October 5, 2005 THIS IS WHAT 'ADVICE AND CONSENT' MEANS
September 28, 2005 BOB SHRUM WITH A GOOD CAUSE
September 21, 2005 WHAT WOULD REAGAN DO?
September 14, 2005 ACTUALLY, 'JUDICIAL ACTIVISM' MEANS 'E=mc2'
August 3, 2005 READ MY LIPS: NO NEW LIBERALS
July 27, 2005 FOOL ME EIGHT TIMES, SHAME ON ME
July 20, 2005 SOUTER IN ROBERTS' CLOTHING
July 6, 2005 REAGAN'S BIGGEST MISTAKE FINALLY RETIRES



Her character a bit vindictive and mean-spirited.
Republican bootlicking extremist Ann Coulter has posted a personal phone number and email address of BRAD BLOG Guest Blogger Lydia Cornell on the front page of her website with a link to the post again on her "Questions from Chairman Ann" page.
And clearly The Worst Person in the World.

Now you can add, "Felonious Voter Fraud Media Whore" to her resume

Ballot Beeotch: Coulter votes in wrong precinct

Palm Beach Post Columnist --- Wednesday, February 15, 2006
She may be smart enough to earn millions from her acidic political barbs, but when it comes to something as simple as voting in her tiny hometown, hard-core conservative pundit Ann Coulter is a tad confused.

Palm Beach County Supervisor of Elections records show Coulter voted last week in Palm Beach's council election. Problem is: She cast her ballot in a precinct 4 miles north of the precinct where she owns a home — and that could be a big no-no.

Coulter, who owns a $1.8 million crib on Seabreeze Avenue, should have voted in Precinct 1198. It covers most homes on her street. Instead, records show, she voted in Precinct 1196, at the northern tip of the island.

Here's the sticky part for The Right's Lady Macbeth: She wrote down an Indian Road address instead of Seabreeze on her voter's registration application. And she signed to certify the information as true.

"She never lived here," said Suzanne Frisbie, owner of the Indian Road home. "I'm Ann's Realtor, and she used this address to forward mail when she moved from New York."

No matter, Florida statutes make it a third-degree felony to vote knowingly in the wrong precinct. Lying on a voter's registration can cost up to $5,000 and five years behind bars.


UPDATE February 17th, 2006

It just keeps getting better as this poll worker describes his run in with Ann.
Jim Whited says, Coulter dashed out of the polling place when he told her she needed to file a change of address.

"I even ran out after her," he says. "But she was fast. ... Ms. Coulter came to me, and the address we had for her in the computer didn't match the address I know she lives at," Whited says.

"I just told her she had come to the right place, but we needed to fill out a change of address," says Whited, a staunch Republican who says he "likes the girl."

"What am I going to report?" Whited said. "That Ann Coulter came in and left when I tried to have her fill out a change of address? I didn't know where she went afterwards."
Palm Beach Post

I thought Ann running away from Al-Pieda was a funny but this beats that by a 100 meter dash.

Who Ya Going to Call? Karl Rove!

In a statement released Monday by the White House said. "[Bush] did not know the vice president was involved at that time. Subsequent to the call, Deputy Chief of Staff Karl Rove spoke with Mrs. Armstrong. He then called the president shortly before 8 p.m. to update him and let him know the vice president had accidentally shot Mr. Whittington."



Why Rove and not Andy Card or David Addington?

Well, for one, the Armstrong's have long standing ties with the Republican Party.
Anne Armstrong, the matriarch of the family that owns the ranch, is a Republican Party stalwart who served in the Nixon and Ford administrations and also as ambassador to Great Britain. When her husband, Tobin Armstrong, died in October, Mr. Cheney and James A. Baker III, the former secretary of state, spoke at the funeral.
New York Times 2/13/06

In addition, Rove also is an old family friend of the Armstrong's as the New Yorker chronicled in 2003.
"Rove had the imprimatur of Texas’s Republican aristocracy from the beginning, through his connection to the Bush family and to Clements. An early financier of Karl Rove + Company [a direct mail business] was Tobin Armstrong, the owner of a Texas ranch (it was on land leased from Armstrong Rove and Bill Frist were planning to go hunting) and the husband of Anne Armstrong, a former Republican Cabinet officer."
Katharine Armstrong's influence in the White House is apparently lucrative as well. In 2004, Katharine Armstrong was paid $160,000 by the powerful legal firm Baker Botts to lobby the White House, according to records she filed with the U.S. Senate as required by lobbying disclosure rules, reported MSNBC.
In a phone interview, she told NBC News that in return for the money in one case, she set up a meeting at the White House for a Baker Botts client, although she said she felt she could not release the client’s name.

"A meeting for doing something with one of their clients," she said, describing the event. "I’m not at liberty to say which." She says she cannot remember which White House official the meeting was with. She also said that during the inauguration proceedings, she got Karl Rove to speak at a Baker Botts function. ""I got them Karl Rove," she said.
It is these ties that allowed Cheney to trust Armstrong to agree with his strategy "in which she was to call a trusted reporter at the local paper, the Corpus Christi Caller-Times, to disclose the news" many hours after the incident occurred. Time

It is these ties which place into question her credibility of the version of events. As the former Chair of Texas Parks and Wildlife Commission (appointed to the commission by then Gov. Bush in 1999) it would seem that she would have better understanding of the importance of getting an immediate and thorough investigation.

As a property-owner and friend, she apparently thought that wasn't the course to take; call it "Pioneer judgment"

Where is Whittington's statement or Pamela Willeford's, former Texas education official and the U.S. Ambassador to Switzerland, statement. Not that I expect much from them; a lot of "I didn't see"s and "It happened so fast"'s.



Apparently, we'll hear from Cheney tonight but it will be on FAUX NEWS. In a preview, Cheney took the "blame" ("my bad") but hasn't been exactly detailed:
"THE VICE PRESIDENT: I turned and shot at the bird, and at that second, saw Harry standing there. Didn't know he was there --

HUME: You had pulled the trigger and you saw him?

THE VICE PRESIDENT: Well, I saw him fall, basically. It had happened so fast.

...

THE VICE PRESIDENT: Ran over to him and --

Q And what did you see? He's lying there --

THE VICE PRESIDENT: He was laying there on his back, obviously bleeding. You could see where the shot had struck him. And one of the fortunate things was that I've always got a medical team, in effect, covering me wherever I go. I had a physician's assistant with me that day. Within a minute or two he was on the scene administering first-aid. And --

Q And Mr. Whittington was conscious, unconscious, what?

THE VICE PRESIDENT: He was conscious --

Q What did you say?

THE VICE PRESIDENT: Well, I said, "Harry, I had no idea you were there." And --

Q What did he say?

THE VICE PRESIDENT: He didn't respond. ...

Salon reported that O'Reilly had the interview but it's Brit Hume doing the questioning.
"The truth is, this is much ado about not really much. The VP might be able to dispel this a little bit if he came out and said something, but there's no other reason for him to do so, but he may anyway."

"Changing the tone in Washington has been the goal, for example, of this president since he was first elected. It has not changed, its worsened. One might have thought that the sense of national unity that occurred after the September 11th attacks would have lasted a while. It didn't. It lasted about a year, and now the partisan atmosphere is more fierce than ever and the acrimony between the body politic nation-wide is the worst I've ever seen.
"
Brit Hume, FAUX NEWS, 2/14/06

So we have four people with close ties to Bush, Rove, and the Republican party, none of which were interviewed by competent law enforcement officials at the scene.

It never sounded like it was any more than an accident with maybe some civil liability. The issue is, we'll never know if it would rise to the level of criminal negligence.

When Gary Condit appeared on Connie Chung to explain the circumstances surrounding Chandry Levy's disappearance, I thought: "If this is how he acts when he's innocent, I'd love to see how he acts when he's guilty."

The shooting of an old man by the Vice President has been handled like a cover-up; even if there's nothing to cover-up.

Tuesday, February 14, 2006

Starr --- Worst Person in the World

On Countdown, Kieth Olberman named Ken Starr "Worst Person in the World" for his filing of the forged documents.

Hopefully, Crooks and Liars will put up a video link.

FAUX and Friends Ignores Starr Forgery Flap

When I read that Ken Starr to represent Death Row Inmate, I was confident that this would be ignored by FAUX NEWS (or WSJ, Washington Times, Radio Factor, Limbaugh, Shuanitty.)

Former Whitewater independent counsel Starr released a statement through the American Civil Liberties Union that he would help draft the clemency petition.

Starr, who is currently the dean at Pepperdine University law school, will urge Schwarzenegger, who has never granted clemency, to commute Morales' term to life without parole. because Morales has taken responsibility for the murder, expressed remorse, and tried to atone for his crime while on death row.


Starr, author of a tale too lurid to read out loud on public airwaves, was set to represent death row inmate, Michael Morales, who is to be executed on February 21st. This on the heels of his successful representation of another death row inmate..

Would FAUX and Friends "savage" Starr, darling of the right, for trying to save a vicious murderer?

I thought not and I was right. Not a peep has been uttered or written.

Why? Some might claim that it's not a national story. After all it's a California issue. In California, it's important because after executing less than one person a year (with over 650 inmates on California death row.) But nationally?

The same could be said for Tookie Williams though. The introduction national names like Jessie Jackson brought the wolves out.

Now the Morales case has a national name, Ken Starr.

Despite the allegations that Morales' attorneys, as detailed yesterday by myself, submitted multiple forged and fabricated declarations, there has been no coverage by FAUX & Friends.

The print media has covered it well. Since last Friday almost every major paper has run the story written by the Associated Press. The LA Times, SF Chronicle, and Lodi Sentinel News are doing their own coverage.

Hannity and O'Reilly are on the air four hours a day. You think they could spend 10 minutes on the story?

Hannity is in San Francisco and mentions nothing. He seems busy being a couple's therapist for the past hour.

O'Reilly yesterday covered the asinine San Francisco impeachment resolution but nothing on Starr or Morales.

Look at The Drudge Report today. It's primarily a site that links other stories, so how hard would it be to link an Associated Press Story

Instead of linking the Starr/Morales Forgery story, Drudge decided today that these stories are more important:

George Lucas To Appear With House Democrats...
'Shock' at new James Bond plot...
Detectives got sex services as part of prostitution probe...
BATMAN TO TRACK DOWN BIN LADEN...


Drudge has never linked the Morales story in his site.

So far, the only conservative columnist I know who has written on this is Debra Saunders. But she's pro-death penalty and won't allow partisan politics to interfere with that position.

You have to respect that. It would be nice if FAUX & Friends wasn't so transparent in their lack of integrity.

Monday, February 13, 2006

Michael Morales' Clemency

The Crime

In 1981 Michael Morales and his cousin, Ricky Ortega, lured 17 year old Terri Winchell to the grape fields of Lodi. Once at the vineyard and still in the car, Morales, in the backseat, wrapped a belt around Terri's neck while she sat in the front seat. Morales pulled so hard on her neck that the belt broke.

When he failed to strangle her, he grabbed a hammer he had brought for this event, and hit her in the head twenty-three times. That didn't kill her so he dragged her out of the car and across the road. Her head wound left a long trail of blood in the road. Once in the vineyards, Morales raped Terri. After he was finished, he stabbed her in the chest four times and left her, naked in the dirt.

Victim Services Packet

The Trial

Because of the pretrial publicity, the defense got the judge to move the case from San Joaquin County to Ventura County.

There was a mountain of evidence. The bloody hammer was found in the refrigerator crisper. A kitchen knife with a broken tip was also found. A broken belt was found hidden beneath a mattress. In another room, police found Winchell's purse. The car had Terri's blood all over it.

Morales confessed to his girlfriend and his housemate, Patty Felix. On the stand, Morales admitted to the murder but claimed it was comitted in a drug induced fog.

In addition, a jail house informant, Bruce Samuelson, made a deal in his own case and testified to a confession Morales made to him. The testimony added nothing other than Morales's comment as he walked away from Terri's body, "You fucking bitch."

Opposition to Clemency (pdf) (page 9.)

In 1983, the jury voted to convict Morales of murder with the special circumstances of rape and lying-in-wait and recommended he be sentenced to death. A separate jury convicted Ricky Ortega and he received life without the possibility of parole.

The Appeals

Three execution dates have been set since Morales was sentenced to death. Morales has exhausted his appeals arguing a number of issues before state and federal courts, including the validity of the Bruce Samuelson testimony.

All appeals have been denied.

A last ditch appeal is before the federal court challenging the method of execution. San Jose Mercury News

The Clemecy

According to press reports, Kenneth Starr joined the Morales defense team on January 26th, 2006. David Senior has been Morales' main appellate attorney since 1992. San Francsico Chronicle, 1/27/06

On the 27th, the Morales defense team filed a "Petition for Executive Clemency".

In it they argued that (1) Morales was remorseful and; (2) his penalty trial was tainted by Samuelson's false testimony.

Among the exhibits they filed, they included a Declaration for Morales' roommate, Patty Felix, recanting her entire trial testimony. (Defense Exhibit 30.) Despite the fact that she accused the police and district attorney of threatening her with jail unless she testified to certain facts, the defense never argued this in the body of their "Petition for Executive Clemency".

On February 6th, the District Attorney filed their Opposition to Clemency

Contained in the People's Opposition was a Declaration Patty Felix prepared by the prosecution. In it, she claims that Defense Exhibit 30 is a fake and forgery. This interview was taped recorded and transcribed, both were submitted to the Governor. San Francisco Chronicle, 2/8/06

The Defense denies this claim.

"The declaration they provide from Patricia Felix is further evidence that they go out and muscle witnesses under oath," [Ben] Weston [a Morales attorney] said. "We have a plethora of witnesses and documents and records to establish that (Felix) did talk to us and did give us a declaration." Lodi Sentinel News, 2/7/06


The Reply

On February 7th, Defense filed their Reply to Opposition to Petition for Executive Clemency. (Reply) In it, they once again repeat the same attack on the testimony of Bruce Sameulson.

Forged Declaration of Witness Patricia Felix

In addition, the Reply argues that the Felix Declaration they submitted was genuine and submitted a Declaration from the defense investigator Kathleen Culhane, who interviewed Ms. Felix (Exhibit 56).

On February 10th, the District Attorney submitted another Declaration from Ms. Felix (2/9/06, page 15) where she stood by her claim that she had never met Kathleen Culhane, never signed a declaration for the defense. She stands by her trial testimony. This interview was also taped and transcribed. DA Press Release, 2/10/06

The defense has provided no similar taped interview.

Forged Juror Declarations

Also included in the Reply submitted by Starr and Senior are six juror declarations. Five of the declaration were witnessed by defense investigator Kathleen Culhane. In these five declarations, all say that 1) Samuelson was key in their decision for death and 2) they support Morales' bid for clemency.

In reading the Juror Declarations submitted by the People on February 10th, it's clear that declarations submitted by Starr and Senior are forged.

Juror Number 1 was on John and Ken Show the afternoon of February 9th. She was on the show to voice her opposition for Morales' clemency. She said that she stood by her verdict and that the jail house informant was barely considered in the decision for death.

Also on the show was Ben Weston, a Morales' attorney. He read a juror declaration to contest Juror #1's recollection of the jury deliberations; that declaration turns out to be forged.

It was only after the show, that Juror #1 found out she was supposed to be one of the jurors who submitted a declaration for clemency.

Juror Number 2 was interviewed by phone. He hasn't lived in California for twenty years. The Defense declaration misspelled his name.

Juror Number 3 called the District Attorney's office after she read newspaper accounts of the other jurors request for clemency. It appears that this juror is the one that clued the D.A. into the fact that the declarations are forgeries. Her name on the defense declaration is also incorrect.

Juror Number 4's name on the defense declaration is also incorrect. She hasn't used that name for 15 years and it's still misspelled.

Juror Number 6's name on the defense declaration is also incorrect.

All five jurors state that they never met defense investigator Kathleen Culhane, that they never gave a declaration for the defense, and that they support the execution of Mr. Morales.

Also, they deny that Samuelson's testimony was "key"; a claim advanced by the defense because it supports their legal argument.

The only legitimate declaration was witnessed by someone other than Kathleen Culhane and merely states she supports the decision of the Governor no matter what it is.

D.A. Press Release

Another Appeal

On February 10th, Mr. Starr and Mr. Senior filed a third
Writ of Habeas Corpus. (The first two were denied in 1992 and 1993)

In it, they reiterate the already litigated claim of Samuelson's testimony. In addition, they argue that the police and district attorney in coerced Patricia Felix to testify falsely during the trials of Mr. Morales (and by extension, Mr. Ortega.) They also accuse the prosecutors of now coercing Ms. Felix during the two separate interviews where she stood by her trial testimony and her insistence that the Defense Declaration is a fabrication.

The Writ of Habeas Corpus was filed before Starr and Senior learned of the discovery of forged juror documents. Now that Kathleen Culhane's credibilty is in issue, Starr and Senior, despite their accusations of prosecutorial misconduct of witness intimidation, have withdrawn all declarations involving Culhane including the five forged juror declarations.

"In a letter to Attorney General Bill Lockyer, attorney David Senior said he and Starr were “withdrawing any and all reliance on any exhibits generated” by one of their investigators.

Another statement purportedly taken from Morales' former Stockton roommate [Patrica Felix] and submitted to the California Supreme Court, requires “further investigation,” Senior wrote.

“The disparity between the signatures on those declarations and the declarations presented to us by our investigator raises substantial issues that we are continuing to investigate,” Senior wrote the governor.
Associated Press, 2/13/06

Who is Responsible for the Forgies?

It appears that Kathleen Culhane, who submitted her own declaration about the false Felix declaration, is the most likely suspect.

Ben Weston, a Morales attorney and vocal with the press, also appears to have some responsibility. Why didn't he say something when he was on the show with a juror who was contradicting a declaration that he had in his possession? He read one declaration on the air so he must have had access to them?

"Ben Weston, one of Morales’ attorneys, said the defense team spoke to nine of the 10 living jurors. Three refused to be interviewed, he said, and another could not be located." Associated Press, 2/8/06


Whether Ken Starr or David Senior knew anything about the forgeries is not known. Nevertheless, they bear some responsibility.

"Deputy District Attorney Robert Himelblau said Starr and Senior, the lawyers who prepared the clemency papers, may not have known of the alleged fabrications but were responsible for the documents they filed.

"The buck stops here,'' Himelblau said. After accusing the prosecutors of dishonesty in the exchange over Felix, he said, the lawyers now "owe an explanation to the district attorney's office, to the governor, to the jurors who (they) lied about, to the witnesses who (they) lied about, and finally to the people.''" San Francisco Chronicle, 2/11/06

Sunday, February 12, 2006

NSA Domestic Spying Program

Regardless where you stand on warrantless electronic eavesdropping by Government intelligence agencies, such wiretapping of citizens is illegal. Necessary or not, it's unconstitutional.

The current legal argument put forth by the White House and AG Gonzales for warrantless domestic wiretaps and dispensing with FISA/FISC has been 1) his authority as commander in chief (The Imperial Presidency) and 2) that Congress implicitly gave him that power when it authorized the use of force (AUMF) against those who attacked the United States on 9/11; a statement without any legal or principled authority.

The argument that the President has plenary powers as the President was an oft cited claim under Nixon. A claim that has been rejected in a variety of different ways in different cases.

Article II of the US Constitution states in relevant part: Section 1. The executive power shall be vested in a President of the United States of America. Section 2. The President shall be commander in chief of the Army and Navy of the United States. (It is also where the power to impeach the president lies.)

An Imperial Presidency argument will not fly legally under either Youngstown (Truman’s seizure of steel mills) or Hamdi (unanimous requirement of due process for enemy combatants.)

At issue here is the Separation of Powers: Presidential Authority vs Congressional Law. Youngstown Co. v. Sawyer, 343 US 937 (1952), the controlling case in this issue, requires the President to act within Congressional and Constitutional parameters.

Later, in a case closer to the issue at hand, the Court in US v. US District Court (Keith) 407 U.S. 297 (1972), unanimously held that the President could not circumvent the 4th Amendment's warrant clause in domestic national security surveillance.

Still, more recently the Court has held that, "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. (Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

Under current US Constitutional law, the President does not have the inherent power to violate the Bill of Rights.

The second justification is the one being sold by AG Alberto Gonzales; that the AUMF gave the President implicit powers to ignore FISA.

There are two problems with this justification. First, FISA does not do away with the 4th Amendment but rather incorporates it into it's language.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


FISA set up a special court (FISC) to review warrants for national security purposes. This method has worked well for close to thirty years.

Despite the claims made by this Administration, Congress can not simply overwrite the 4th Amendment either by statute or by resolution. (And please don't cite United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), a pre-FISA ruling rejected in FISC 02-001.)

But Congress did no such thing. The Administration claims that the language in the AUMF allows the President to do anything and everything necessary, including ignoring the Constitution: "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."

This reminds me of the scene in the Untouchables where Ness (Cosner) can't arrest Frank Nitti for carrying a gun in court because Nitti has a note from the Chicago mayor: Please afford all due consideration for Mr. Nitti.

The law clearly states that the criminal wiretap statute and FISA are “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

This justification is a fiction.

The second problem is that the Administration just invented it. Last spring, Gonzales didn't use that justification:

“Can the CIA spy on the American—” Sen. Barbara A. Mikulski (D-Md.) tried again.

“No,” answered Attorney General Gonzales, only to be amended later by FBI Director Robert S. Mueller III. “Surveillance of American citizens for national security matters is in the hands, generally, of the FBI,” Mueller told Mikulski and members of the Senate Select Committee on Intelligence. “The investigation or development of intelligence overseas is in the hands of the CIA and NSA [National Security Agency]. And generally, I would say generally, they are not allowed to spy or to gather information on American citizens. But there are limited exceptions to that.” Washington Post April 28, 2005



The White House knew FISA didn't authorize warrantless wiretapping otherwise why would Gonzales admit that the White House had considered asking Congress to pass new legislation that would explicitly permit those activities and that the Administration had abandoned the idea of new legislation because getting a bill through (a Republican) Congress “would be difficult if not impossible.”

"He claims he can ignore the law because Congress granted permission when it authorized him to use force against Al Qaeda. But we know that can’t be true. Atty. Gen. Alberto Gonzales says the administration didn't ask for a revision of the law to give the president explicit power to order such wiretaps because Congress—a Republican Congress, mind you—wouldn't have agreed. So the administration decided: Who needs Congress?" Chicago Tribune

This justification has been recently undermined further with the news of the proposed legislation a few years ago by Sen. Mike DeWine to ease FISA requirements and its subsequent rejection by this Administration.

“We have been aggressive in seeking FISA warrants, and thanks to Congress’ passage of the [Patriot Act] we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek FISA warrants we require.”
James A. Baker, the Justice Department’s counsel for intelligence policy, July 2002.

Without justifying “exigent circumstances” or it’s progeny on each case of wire-tapping of an American citizen, then it’s a violation of the 4th Amendment. The term now being employed, “hot pursuit”, is a literal term and not a metaphor.

Bush and his administration has always known that they needed to get a warrant.

“Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think ‘Patriot Act,’ constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.” George W. Bush, April 20th, 2004

Don't let then tell you otherwise.

The Fourth Amendment was placed in our Constitution to protect the innocent, not the guilty. That's why it so simple to get a warrant; all the request has to be is reasonable and supported by probable cause.

The argument that spying shouldn't matter to those who have nothing to hide ignores the past.

Pick your point in history: Christ's crucifixion, The Spanish Inquisition, The Salem Witch Trials, Robespierre and the Reign of Terror, McCarthy's Red Scare & HUAC, Nixon's Enemies List. During these periods (and others) all "innocents" had something to fear.