by Mary W Maxwell
Something so strange has happened in my life this week that me poor old brain has no place to process it. Viz, the federal judge in Boston (not O’Toole but one of the three who will hear Jahar’s appeal in the Marathon case), has permitted me and two others to be amici.
That’s pronounced “Ah Mickey!”. Emotionally at least, it gives me some sort of standing in this world. I have gone from being a housewife to being an amicus curiae, a friend of the court. Of course I was always a friend of the court under the table but now it’s on the table. Wow.
’Twas not I who cooked up the idea of intervening as an amicus. Years ago I asked to be an amicus in federal court Adelaide for Frederick Toben’s case and was rejected. This time it was Jack Graham of the Minnesota bar who arranged it. He wrote it up on behalf of myself, James Fetzer, PhD, and Cesar Baruja, MD. It refers to the possible execution of Jahar as “judicial murder.” That phrase “judicial murder” comes from US Supreme Court in the 1932 case Alabama v Powell.
The nine defendants were known in Alabama as the Scottsboro boys. Eight of them were convicted of raping two girls. There was a black-white aspect to the case, but even if all parties were white, the matter hung on a point of the right to counsel. The 8 were kept locked up with no chance to ask their families for advice much less to get an attorney.
Wrote Justice Sutherland:
“Let us suppose the extreme case of a prisoner charged with a capital offense who is deaf and dumb, illiterate and feeble minded, unable to employ counsel, with the whole power of the state arrayed against him, prosecuted by counsel for the state without assignment of counsel for his defense, tried, convicted and sentenced to death. Such a result, which, if carried into execution, would be little short of judicial murder.”
So back to the Tsarnaev appeal. I do not say the Court will listen to us, or carry into effect our complaints. It is nevertheless remarkable that our motion was not dismissed. Let’s assume the judge knows of my writings which are not exactly unbiased. I am very biased against the FBI.
I am biased against the very existence of a Federal Bureau of Investigation. Who needs it? The fifty states each have police. Can the FBI “investigate” crime of an interstate nature? I don’t even grant that — although I am no doubt in a minority there.
How could FBI’s behaviour be constitutional? The dear parchment gives only 18 powers to the Federal government, and shooting a semi-conscious unarmed boy on a boat is not one of them. Nor is destroying evidence (such as Sean Collier’s cruise car). Nor is telling the public not to look at their own videos of the Marathon type thing. All right I’ll stop there, or we’ll be going on all night.
So the judge knows that at least this one amicus (I can’t speak for Fetzer or Baruja here) takes a strong position in favor of Jahar. I previously thought an amicus had to be neutral, dead neutral, poker-face, but that’s apparently incorrect. Our submission to the court – which, I repeat, has been accepted – says “in support of Dzhokhar Tsarnaev.”
Here Come Da
Juan R Toruella graduated with a JD from Boston University in 1957. He was appointed to the federal bench in 1974, and became a chief judge in 1994. He retired in 2001 but apparently does relief work, THANK GOD. Maybe he’s a fiat-justitia-ruat-caelum kinda guy. Whom knows?
In early life (he’s now 84), Toruella competed at the Olympics four times in the sport of sailing. Well, it takes all kinds to make a world. In 2009 he wrote the opinion in Noonan V Staples holding that although the libellous stuff was true it was published “with actual malice.” I like that. I like calling malice, malice.
This judge was born in Puerto Rico and has written a lot about law as it pertains to persons living in US territories that are not states. To give the flavour I will just quote a passage from Juan R Torruella’s paper entitled:
“The Insular Cases: The Establishment of a Regime of Political Apartheid”
“There were, however, other differences that further distinguished the Spanish-American War acquisitions from those of Alaska and Hawaii. In the case of the Spanish islands of Puerto Rico, the Philippines, and Guam, there were almost no United States citizens residing therein when the change in sovereignty took place, and sub silentio, but perhaps most importantly in the real-politics of the times, much if not most of the large native populations inhabiting these islands were non-white. Thus, for the first time in its history, the United States acquired sovereignty over noncontiguous lands separated by thousands of miles from the political and economic epicenter of the American polity, and inhabited by large numbers of subject peoples of different races, languages, cultures, religions, and legal systems than those of the then-dominant Anglo-Saxon society of the United States.”
As I have not yet had a chance to coordinate with Prof Jim Fetzer and Dr Cesar Baruja, I’ll say no more for today about what may come to pass at the Moakley in the Year 2018.
At least it can’t be worse than the status quo, right?
–Mary W Maxwell’s revised book on the Marathon will appear at GumshoeNews later this week and at fine cosmetic counters everywhere.