The Freedom Bulletin

As you probably know by now if you haven’t been living under a rock, Craigslist decided to take down its “adult services” section in response to pressure from 17 states’ attorneys general. In the aftermath of Philip Markoff‘s suicide, one of the most vocal critics of the site’s adult services section has been Massachusetts Attorney General Martha Coakley. She also wants to repeal the 1996 Communications Decency Act (CDA), which shields websites from liability for things that third parties post.

In my opinion, Craigslist was not legally or morally obligated to remove its “adult” ads, and the attorneys general are acting like a bunch of paternalistic, sexist bullies.

First of all, the CDA is a good law. In addition to protecting Craigslist from liability for thinly-veiled prostitution ads, the CDA also protects sites like Youtube from being sued when people post copyright-infringing videos, and forums from being sued for users’ defamatory comments. This principle just makes sense. People are responsible for their own actions, so they should be held responsible for all of and only what they post themselves. For large, popular websites, it is unreasonable to expect administrators to be able to monitor everything that gets posted.

Additionally, the attitude of Coakley and the other attorneys general is sexist and insulting. In a joint letter, they write about the “women and children who will continue to be victimized.” Although probably not common, it’s certainly possible for men to be forced into prostitution, or even for women to be the perpetrators.

Furthermore, the attorneys general fail to distinguish between prostitution, an activity that is illegal but which some people choose to participate in, and human trafficking, which is when people are forced into prostitution. Connecticut AG Richard Blumenthal, for example, said: “Prostitution is not a victimless crime. Human trafficking results in tragedies to children and others.” I don’t necessarily think prostitution should be legal, but everyone should recognize that there is a difference between choosing to do something and being forced to do it. Blumenthal seems unable to tell the difference.

Finally, the bullying by the attorneys general makes Craigslist, and by extension the Internet, worse. I don’t regularly use Craigslist, but it has a certain appeal that comes from its simplicity, freedom, and anonymity. In the age of cookies, behavioral tracking, and intrusive personalization, it is great that a site exists where people can simply post almost anything they want with little or no moderation. Last year, in response to pressure from 39 attorneys general, Craigslist began to require personally-identifying information for adult services ads. Although this might make the site safer, it detracts from the anarchy that makes Craigslist what it is.

In short, Craigslist is not doing anything wrong by merely failing to remove illegal ads that third parties post. In the vast majority of cases, people who post ads or respond to them do so because they have considered the risks involved and have decided that the benefits are worth it. To take away an option from people merely because it is dangerous insults them by implying that they cannot be trusted to make their own decisions, and harms them by denying them the ability to do something that they want to do. Although a small number of people are forced into prostitution against their will, and the existence of Craigslist might make their victimization slightly easier, not all prostitution involves force, and not all adult services ads involve prostitution. It is never okay to punish many people for the actions of a few.

In the eloquent words of the Cato Institute’s Jim Harper: “The cost to free speech in the AGs’ badgering of Craigslist vastly outweighs the infinitesimal crime-prevention benefit.”

I wish our attorneys general would stop bullying harmless websites like Craigslist, and start standing up for people’s liberty against oppressive federal laws like, say, the Durham-Humphrey Amendment or the health care non-reform law.

Thomas J. Mortimer IV was arraigned today in Middlesex Superior Court, pleading not guilty and agreeing to be held without bail. I attended today’s court proceedings, which began at around 9:30 a.m. in Courtroom 440 at the Woburn office park that is the courthouse.

Clerk Magistrate Michael Sullivan presided over Mortimer’s arraignment. Two prosecutors, Adrienne Lynch and John McEvoy, represented the state, while defense attorney Denise Regan represented Mortimer. Many relatives and/or friends of the alleged victims sat in the front two rows, but surprisingly there were only a few reporters.

A court clerk read the indictment against Mortimer, charging that he “did assault and beat” and “by such assault and beating did kill and murder” his wife Laura Stone Mortimer (41), his mother-in-law Ragna E. Stone (64), his son Thomas Joseph David Mortimer V (4), and his daughter Charlotte Ellen Sandra Mortimer (2). Four times the clerk asked, “Mr. Mortimer, how do you plead to this indictment?” and four times he replied “not guilty.”

While all this happened, Mortimer was in a little room adjacent to the courtroom, but he could easily be seen and participate in the proceedings through an opening in the wall. His dark hair was shorter than at his district court arraignment, and he was wearing a light blue shirt and reddish-brown tie. His hands were handcuffed in front of him. Most of the time he somberly looked straight ahead and down, never glancing toward the gallery or his wife’s family members. As he pled not guilty, he spoke somewhat quietly and seemed a little nervous and hesitant at first. He didn’t show much emotion but was friendly and polite with his lawyer, nodding and smiling when she spoke privately to him.

After Mortimer pled, Lynch requested that he be held without bail because of the nature of the crimes and his alleged flight to Western Massachusetts, and she also revealed a few new facts about the alleged murders. According to Lynch, the deaths took place between 9:10 p.m. on June 14 and 7:10 a.m. on June 15. Mortimer allegedly composed a confession letter between 11:16 p.m. and 3:19 a.m., when he shut down his computer. The letter was found in digital form on the computer, as well as two printed copies.

At 7:10 a.m. on the 15th, Mortimer called his workplace and his son’s day care to say that neither of them would be in. Later he answered his wife’s phone when her sister, Debra Sochat, called and told her that Laura would not be able to call her back for a long time. At some point that day he threw his and Laura’s phones away at a gas station on route 113.

On June 16, the bodies were found during a well-being check of the home at 2 Windsong Land in Winchester. The next day, Mortimer’s car battery died and he was arrested in Bernardston.

Regan did not contest Lynch’s request for no bail, so that was the end of the arraignment. She patted Mortimer’s shoulder before he was led away by officers.

But that was not the end of today’s court proceedings. After the arraignment, at 11:00, a hearing was held on a defense motion to seal the statement of the case, a document filed by the prosecution to summarize the allegations. This took place in the same courtroom but before a different judge, Thomas Billings.

Regan argued that the statement of the case should be temporarily impounded until the next hearing, on September 9, to give her time to make a written argument for it to be impounded permanently. She said that the last five pages of the nine-page document were “inflammatory” and that their release would be unfair to Mortimer and “detrimental to his right to a fair trial.” She added that no rule of court requires a statement of the case. “It has no bearing on the legal proceedings in the court,” she said.

Lynch, on the other hand, argued that “the defendant can’t pick and choose which information the commonwealth can present to the court.” She pointed out that prosecutors are required to file a statement of the case at arraignment.

Judge Billings then asked if anyone in the gallery wanted to be heard, and reporters John Ellement of the Boston Globe and Laurel Sweet of the Boston Herald both stood up and argued against impounding the statement of the case, saying that releasing it is customary and would not taint the jury pool because the trial will likely not take place until at least a year from now.

But Regan argued that a defendant’s Sixth Amendment right to a fair trial should win out over the media’s First Amendment right to report on the case and the public’s right to the information. She was surprised, she said, at the length and detail of the statement that she was shown today.

Judge Billings decided to impound the statement of the case until the 9th. The defense bears a heavy burden to show that the statement should be sealed, he said, but he is willing to give Regan a chance.

So the next court date for this case will be Thursday, September 9, at 2:00 p.m. in courtroom 630.

More from the Boston Globe, Boston Herald, Associated Press, and Winchester Star.

Another day, and more arguments in the hearing on Gary Sampson’s 2255 petition for a new trial. I wasn’t there for the entire time, but today seemed to feature Sampson’s least persuasive arguments. The judge, Mark Wolf, actually said, “Mr. Sampson’s counsel has done a good job. They put the weakest arguments towards the end.”

Here are a few of today’s apparently not so good arguments by Sampson’s defense team:

First, Sampson’s lawyers argued that his trial lawyers failed to investigate the effects of Depakote on his demeanor, or to offer testimony to explain his demeanor to the jury. According to various news reports, Sampson had a “flat affect,” showed no remorse or emotion, and looked bored during his trial. Sampson’s lawyers today argued that the medication caused this behavior, and that his trial lawyers should have called an expert witness to explain this to the jury. Prosecutors, however, argued that Sampson was only taking Depakote for his headaches, that his bipolar disorder and not the medication caused his unsympathetic demeanor, and that despite the medication he did show emotion, crying when the death penalty verdict was announced and yelling at officers in jail. Judge Wolf indicated informally that this claim might deserve further arguments and might not be summarily dismissed.

Sampson’s attorneys also claimed that the jury had seen the victims’ bloody shirts, which would be prejudicial. Judge Wolf, who was also the trial judge, excluded the shirts, but one might have been briefly visible during a doctor’s testimony. Sampson’s then-lawyers failed to move for a curative instruction or a mistrial.

Additionally, Sampson’s team argued that his trial lawyers failed to adequately investigate and develop evidence of his brain damage by conducting more detailed testing. Prosecutors tried to shoot down this claim, praising the trial attorneys’ good lawyering and thorough testing.

On Monday, Sampson’s lawyers presented what the judge likely considers their strongest arguments – that his trial attorneys failed to present enough evidence of his background, mental illness, and brain damage. In order for Sampson to get a new trial, all of these alleged mistakes by the trial lawyers must add up to actual incompetence, and there must be a ”reasonable probability” that if it weren’t for this incompetence, the jury would have reached a different verdict, namely life in prison instead of the death penalty.

Tomorrow I probably won’t have a Sampson update because I’m going to watch Thomas Mortimer’s arraignment. I’m not sure how long these hearings will go on or when the judge will issue his ruling. This sure has been a busy week for trials .

The hearing on Gary Sampson’s 2255 (habeas corpus) petition continued today. Sampson’s defense team has raised 18 issues that they believe violated Sampson’s constitutional rights and entitle him to a new trial.

Today’s arguments aren’t as interesting to write about as yesterday’s, and Judge Mark Wolf considers them less likely to succeed. Sampson’s main argument today was that his trial lawyers failed to adequately investigate the option of pleading guilty earlier on in the process and thereby avoiding the death penalty. The law on this issue was complicated and difficult for me to understand, but I think that if Sampson had pled guilty right away, he would have been ineligible for the death penalty. However, because of a Supreme Court decision sometime during Sampson’s legal proceedings, that no longer was an option by the time he decided to plead guilty.

Sampson’s team argued that his trial attorneys failed to plan for this Supreme Court decision, which was foreshadowed by several prior decisions, and to properly advise their client. Prosecutors, however, argued that expecting someone to predict Supreme Court decisions is unreasonable and stressed the experience and competence of Sampson’s trial lawyers. In order to receive a new trial, Sampson must show that there is a reasonable probability (doesn’t have to be more likely than not) that the jurors would not have arrived at a unanimous death penalty verdict if it weren’t for the incompetence of his trial lawyers.

The hearing will continue tomorrow and probably after that. Then Judge Wolf will formally issue a ruling on whether or not to summarily dismiss Sampson’s claims. If there are any claims he does not summarily dismiss (which is likely), then there will be more detailed hearings on those. Stay tuned!

Today was the first day of a series of hearings in the case of Gary Sampson, a convicted triple-murderer who was sentenced to death back in 2004. Sampson, from Abington, MA, pleaded guilty to murdering three random, completely innocent people in a 2001 crime spree: Philip McCloskey, Jonathan Rizzo, and Robert “Eli” Whitney.

Two of the murders took place in Massachusetts and one in New Hampshire. Although Massachusetts does not have the death penalty, federal law allowed Sampson to be tried in federal court, where he received a death sentence.  

Now, Sampson and his defense team have filed a habeas corpus petition, or 2255 petition, an attempt to get a new trial because he claims his constitutional rights were violated. In this particular petition, Sampson’s lawyers claim that his trial lawyers, including Robert Sheketoff and Stephanie Page (who represented Neil Entwistle) were ineffective.

I attended today’s hearing on the 2255 petition, which lasted for most of the day at the Moakley Federal Courthouse in Boston. Family members of the victims were in the courtroom, as well as five lawyers representing Sampson and four federal prosecutors. Sampson is spending his time on federal death row in Terre Haute, Indiana, and was not at the hearing.

The prosecutors have filed a motion for summary dismissal, a request to have Sampson’s petition thrown out without discovery or detailed arguments. At the hearing, Judge Mark Wolf ruled tentatively that he would deny the government’s motion and allow the 2255 petition to go forward, at least with respect to most of the issues the lawyers argued about today.

Sampson’s main complaint is that his trial lawyers failed to introduce adequate evidence of his history of mental illness during the penalty phase of the trial, which was essentially the only part, because he pled guilty. If it weren’t for their incompetence, Sampson’s team claims, at least one juror might have voted for life in prison.

According to defense attorney William McDaniels, Sampson fell ten feet down a flight of stairs when he was 4, was physically and emotionally abused, injured his head in about a dozen fights over the years, was in a car accident at age 20, jumped off a roof, was beaten in prison, and compounded these problems with drug and alcohol use. McDaniels says that Sampson is in the bottom 1% of the population in terms of mental functioning, and that he has bipolar disorder, as well as damage to the frontal, temporal, and occipital lobes of his brain, which combined to cause his recklessness, arrogance, and lack of remorse. However, little evidence was introduced at trial to corroborate these claims.

Sampson’s lawyers claimed that his trial attorneys failed to contact his family and friends in a timely fashion and did not try hard enough to get them to testify about his background and childhood. The prosecutors, on the other hand, defended the defense lawyers from the trial. They claimed that they tried all available means to contact Sampson’s family short of issuing subpoenas, but they refused to talk. Also, according to prosecutors, Sampson’s trial lawyers delayed contacting his family to give them time to get over the shock of learning of their son’s crimes, or decided against calling them to the witness stand because they would hurt Sampson’s case.

Additionally, both sides agreed that Sampson’s trial lawyers failed to introduce records from the Brockton Hospital of Sampson’s childhood head injury. Prosecutors downplayed this omission, arguing that it would not have changed the verdict.

The lawyers also argued about the credibility of a witness who downplayed the abuse Sampson suffered as a child. Sampson’s attorneys said that the trial lawyers should have impeached this witness, while the prosecutors, as they did throughout today’s hearing, maintained that the trial attorneys were competent and did a more than adequate job.

The arguments will continue tomorrow and most likely the day after. I’ll probably continue stopping by and will be sure to blog back with whatever I observe of the proceedings.

Read more at the Globe, Herald, and AP.