COMMENTARY:

American Justice is Blind, But Her Scales are Rigged

When it comes to justice in America, the scales definitely badly need a visit by an inspector from the Department of Weights and Standards.

Consider the recent decision by Federal Judge Ricardo Urbina tossing out the federal indictment of five Blackwater (Now Xe) mercenaries for the 2007 slaughter of 14 innocent Iraqis in Baghdad.

The judge found that federal prosecutors had improperly used incriminating statements which he said had been “compelled” from the Blackwater personnel under “threat of job loss.”

Let’s compare that to how the courts have handled other cases involving coercion. We might start with John Walker Lindh, the young American captured in the first days of the US invasion of Afghanistan in 2001. Indicted on charges of conspiring to kill Americans, Lindh, currently serving a 20-year sentence after a plea agreement reached with the government, never had his case thrown out, though the government’s main evidence was a statement allegedly made by him (this on the word of an FBI agent) that he had been a member of the Taliban and Al Qaeda--a statement that even if actually made, had come at a time that Lindh was being kept duct-taped to a gurney and held in an unheated, unlit metal shipping container, with an untreated bullet wound in his leg, and denied access to an attorney. Surely the coercion behind this “confession”--Lindh’s military captors allegedly were routinely taunting him that he would die in Afghanistan--was at least as severe as the threat to Blackwater guards that they could lose their jobs if they didn’t tell what had happened at the bloody shooting in Baghdad. Yet Lindh’s charges were allowed to stand.

Or compare the Blackwater case to the case of Philadelphia journalist Mumia Abu-Jamal, who has been on Pennsylvania’s death row now for 27 years for the 1981 killing of a white Philadelphia police officer, Daniel Faulkner. Abu-Jamal was convicted largely on the basis of testimony by two alleged “eye-witnesses”: an African-American prostitute named Cynthia White and a white taxi driver named Robert Chobert. White gave wildly different accounts of what she had “seen” from her position on the sidewalk several car lengths away from the shooting. In her first statement to police, on Dec. 9, 1981, the day of the shooting, she claimed the shooter of officer Faulkner had “fired the gun at the police officer four or five times” after which “the police officer fell to the ground, started screaming.” But after that initial interview, White kept being picked up again and again by police, who would bring her to homicide where she would be re-interviewed. Each time, her version of what she had seen would change, and the number of shots fired at the officer while he was standing would get lower, from “four or five shots” on Dec. 12, to “one or two shots” on Dec. 17, to just one shot on Jan. 8. Asked at trial by Abu-Jamal’s attorney why her account of what she had seen kept changing, White replied, “They were asking me questions, and they asked me in a different way to explain it.” Was White being coerced by police investigators into making perjured testimony? White was a prostitute. Police kept arresting her on the street and asking her the same questions over and over. At least one fellow prostitute, Veronica Jones, later testified that she had been similarly pressured by police, with the offer allegedly being made that if she said what police investigators wanted, she would be left alone and would even be protected in her street-walking activity.

Chobert, meanwhile, the taxi driver, claimed to have been parked in his taxi behind Officer Faulkner’s squad car, when he witnessed the shooting two cars ahead of him. There has always been a question as to whether Chobert was really parked where he said he was. White, in two drawings of the scene done for police investigators, showed Faulkner’s car, Abu-Jamal’s brother’s car, and a Ford that was not involved in the incident at all, but she did not show any taxi. Nor did any other witness report seeing Chobert or his cab. In any event, while Joseph McGill, the assistant DA prosecuting the case, assured the jury of Chobert’s integrity (“Do you think anybody could get him to say anything that wasn’t the truth?” he asked them rhetorically in his summation.), in fact, he had worked assiduously to have the judge prevent them from knowing that this witness actually was a convicted arsonist (he had thrown a firebomb into an elementary school for money and was currently on out on probation for a five year sentence). McGill also convinced the judge to withhold from the jury the information that Chobert was driving his cab, and was testifying in court, at a time that his license that was under suspension for a DWI conviction--a crime that could have been used to revoke his probation and send him to jail to serve out his arson term. Further, McGill failed to tell either the jury or the judge or the defense that Chobert had asked him if the prosecutor could help him “fix” his license problem. Clearly, Chobert was also testifying in this controversial case under considerable coercion.

Yet through years of appeals, though the evidence of coerced testimony is clear in this case, no judge has seen fit to toss out Abu-Jamal’s conviction and order a new trial.

Although it is clearly anathema to any notion of fair trial, coercion by police and prosecutors is commonplace in the system of American “justice.” Whether a judge will decide that the coercion of confessions or of witnesses requires the tossing out of an indictment, or the overturning of a conviction, though, appears to have more to do with the political connections of the defendant than with the merits of the case.

John Walker Lindh was portrayed in the months before his trial as “the American Taliban” by no less than the Attorney General of the United States, John Ashcroft. He was widely portrayed in the media at the time as a traitor to America, though he had actually joined up with Taliban fighters in August of 2001, a month before the 9-11 attacks at a time that the US had no troops in Afghanistan, and was actually holding governmental meetings with the Taliban government over a pipeline deal, and over efforts to attack opium growing in the country.

Abu-Jamal, since the shooting of Officer Faulkner, has been the target of a nationwide campaign by the police union, the Fraternal Order of Police, to have him convicted and executed.

There is really no doubt that Blackwater “security guards” working for the US military and State Department, perhaps fearing they were under attack, went on a shooting rampage in a Baghdad intersection, mowing down 14 civilians, including women and children, and wounding many more. One of the group initially charged even confessed and is currently serving jail time for his actions. But in the view of a federal judge, the fear on the part of his colleagues that they might lose their jobs if they didn’t tell investigators what had happened makes their initial confessions “coerced,” and since those statements were used by federal prosecutors as a basis for their indictment of the men, the indictment was flawed and had to be tossed out.

American justice at work.

The scales are not balanced.

Here's what poet Langston Hughes had to say about it:

That Justice is a blind goddess
Is a thing to which we black are wise
Her bandage hides two festering sores
That once perhaps were eyes.

About the author: Philadelphia journalist Dave Lindorff is a 34-year veteran, an award-winning journalist, a former New York Times contributor, a graduate of the Columbia University Graduate School of Journalism, a two-time Journalism Fulbright Scholar, and the co-author, with Barbara Olshansky, of a well-regarded book on impeachment, The Case for Impeachment. His work is available at www.thiscantbehappening.net.