The Empty Can Olympics concluded with the competition for the most feckless feat of the week.

The bronze medal was awarded to the Court of Criminal Appeals from the Lone Star State of Texas. The court was confronted with the elementary question of whether a death row inmate, Charles Dean Hood, should be entitled to a new trial when it was discovered after twenty years that the judge and prosecutor in the original trial had been involved in a string of sexual liasons. In a decision that required the wisdom of the Simpsons rather than Solomon, the majority of the court dismissed the appeal on a sticky point of procedure. The issue of a potential conflict of interest hadn’t been raised as a ground of appeal in a sufficiently timely manner. Perhaps if the judge had admitted at the outset of the trial that she had been sleeping on the same pillow as the prosecutor, a loud objection could have been voiced sooner.

Awaiting his date of execution, Hood has petitioned the U.S. Supreme Court to hear his case. Late last week, twenty-one former judges and prosecutors filed a supporting brief. A flood of experts in legal ethics joined them in a separate brief which contained the following kernel of wisdom:

“A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself.” (NYT 02/22)

The choice for the silver medal became obvious as the week progressed.

New York Gov. David Paterson dropped out of contention in the race for governor of New York after reports surfaced that he had intervened in a domestic violence case involving his former driver and close aide. The New York Times disclosed that Paterson was in contact with the alleged victim and spoke to her briefly on the telephone. The next day she failed to appear in court to seek a final protective order and the case was dismissed. Paterson’s appalling lapse of judgment, a single coin rattling noisily in an empty can, left him vulnerable to the charge that he had used the vast powers of his political office to influence the complainant to drop the matter.

The gold medal in the Empty Can Olympics was awarded to Mark A. Thiessen, a columnist and former speechwriter for President George W. Bush. His prize was extended in recognition of managing the challenging task of cloaking torture with religious cover and making it appear palatable.

In a new book Thiessen defends the waterboarding of suspected terrorists as entirely justified and inaccurately argues that it conforms with the teachings of the Catholic Church.(NYT 02/26) He also rejects the incontrovertible fact acknowledged by the U.S. Attorney General that waterboarding is torture and prefers the more acceptable label of “coercive interrogation”.

As Dahlia Lithwick has observed, (Slate 02/22) Thiessen’s vigorous defence of waterboarding is indicative of the growing murky line between torture and tough talk in America. It is a murky line that the U.K. and Canada, both parties with the U.S. to the U.N. Convention against torture, are also encountering some difficulty in drawing.

Lord Neuberger, the Master of the Rolls in the U.K., recently proclaimed that some members of the British security service, M15, have a “dubious record” on human rights and torture. Prime Minister Gordon Brown was required to publicly refute the allegation of torture and to condemn its practice “without reservation”. (Telegraph 02/26)

In Canada former Supreme Court justice Justice Frank Iacobucci issued a supplemental report last week into his investigation of the cases of three Canadians who were detained abroad and allegedly tortured. Critical of an approach that he described as unsatisfactory and troubling, Justice Iacobucci noted that ” [s]everal witnesses, from both CSIS and the RCMP, told the Inquiry that it was not the responsibility of intelligence or law enforcement officials to be concerned about the human rights of a Canadian detainee, which were for DFAIT (the Department of Foreign Affairs) alone to consider”. (The Globe and Mail 02/23) With respect to one of the detainees, Ahmad El Maati, he concluded that he “suffered mistreatment of some form” in Egypt attributable to Canada’s spy agency. (The Star 02/25)

Justice Iacobucci was a member of the Supreme Court of Canada when the court considered for the first time the Anti-terrorism Act passed after the horrific events of September 11th, 2001. The nation’s highest court struggled with the problem of guarding civil liberties while battling the scourge of terrorism. In the end the Supreme Court referred approvingly to the lesson of former Chief Justice Barak of Israel who asserted that democracies must fight terrorism with one hand tied behind their back. It is for that very reason that they are likely to prevail in the end not only in containing terrorism but in preserving liberty.

E-mail: skurka@crimlaw.org