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Monday, December 09, 2019 {{ new Date().getDay() }}

Animals

Wild animals never kill for sport. Man is the only one for whom the torture and death of his fellow creatures is amusing in itself. --James Anthony Froude, Oceana,1866

On an entirely manmade earth there can no room for man either. All that will be left of us is robots. -- Romain Gary, The Roots of Heaven 1956

The latest act of debauchery and murder happened in Botswana several days ago, where one of the last great tuskers on earth was killed for its eight foot long tusks as a trophy. This elephant bull, more than 50 years old with magnificently huge teeth that grazed the ground when it walked, will now lifelessly stare into the void -- and into the soul of the monster in some men, as an inert mantel object somewhere in South Africa or perhaps Texas. For $50,000 one of the titans of the world is no more.

Botswana used to have a conservation ethos worth admiring under its former president Seretse Khama.'The pressure on the world’s natural resources is immense and not sustainable without change,” Seretse Khama once said. “The short-term approach that leaves nothing for the future. We will not let this happen here.”

Well it is happening -- and next door the oil group ReconAfrica from Canada has undertaken tests to drill right next to the greatest refuge left on earth for the African elephant, the miraculous Okavango Delta in Botswana. This is sheer madness. And now under the new president of Botswana, Africa’s greatest treasure, the elephant, is being yearly sacrificed in the hundreds. Over the last decade 130,000 were destroyed for their ivory. Now 300 elephants will be sacrificed annually to appease the bloodlust of killers. It is not what the late Julius Nyerere of Tanzania had in mind when he vowed in that country’s constitution to protect the natural splendors that make his country unique on earth.

Then why build the Uganda-Tanzania pipeline? Why invade the peat bogs in the northern Congo for oil? Africa will be lost if it is turned into the world’s last repository for the industrial north, with its fauna and indigenous peoples sacrificed for short-term gain. Even India , now undergoing a monstrous heat wave due to climate change, had a hero and tiger champion, in Jim Corbett who said,” A country’s fauna is a sacred trust and I appeal to you not to betray your trust.”

All over the world trophy hunters continue to ransack the unique fauna of the world, many of them endangered species. In the United States, 90 percent of the trophy hunters are believed to be Republicans. A bill introduced in 2019 by Rep. Sheila Jackson Lee (D-TX) to amend the Endangered Species Act, along with seven fellow Democrats and one Republican, would have gone a long way to prohibit the slaughter of the great tusker in Botswana that was just destroyed.

So far that bill, HR 4804, has not passed. Who is holding back this urgent piece of legislation? Special interests, including those who willfully continue to persecute innocent species for vainglory, and those in the oil and tobacco industries who have donated to major conservation organizations to influence them.

If there is corruption among top conservation groups, how can we hold onto the wildlife? Ranchers who senselessly trap and kill wolves by the hundreds in Montana and Idaho, and the trophy seekers who go to Africa and lure lions to blow their brains out are of the same ilk. In a time when the earth has already lost 70 percent of its wild animal population, America must act. A recent report showed that 700,000 animal trophies were brought into this country between 2016 and 2020.

We are acting as if we didn’t like life, as if life were expendable. But it is not just the United States that is seeking to stop the maddening pace of the cruelty we have forced on the non human world. Eduardo Goncalves has led the charge in his Campaign to Ban Trophy Hunting in the UK which will soon be voted on in Parliament. Ninety percent of the UK public is against trophy hunting and if the Goncalves bill passes it will have repercussions throughout the world. The murder of the innocent wildlife cannot be tolerated anymore. Africans never killed big game for fun. Native Americans didn’t destroy the great buffalo herds for fun.

There have been arguments justifying animal trophies from trophy-hunting groups throughout the world, none more financially endowed than the ones here in America. But the favors bestowed by the oil and tobacco industries on trophy-hunting groups beg the question, how much longer do we accept the lie that trophy hunting benefits the protection of species? Native people derive almost nothing from the billion-dollar trophy industry, which is all about revenue. As Rene Ebersole of Nat Geo writes,” It appears that the United States is the only country in the world where wild animals are killed by the tens of thousands strictly for prizes and entertainment.”

In a time when an enormous number of children are depressed about the future, this continued onslaught on the innocent is something the young among our own species can no longer countenance .

Passing HR 4804 in Congress and safeguarding all life for future generations should be something not to ponder but to act on immediately . It is why the Biden administration with bipartisan support is planning the Recovering America’s Wildlife Act, which, if passed, would provide $1.4 billion to protect our most endangered species. We ignored the Cop21 Paris Climate Agreement almost completely -- and now on the eve of the Kunming Biological Diversity Conference in China later this year, humanity needs to act. This is the final decade in which we can reverse the apocalyptic scale of biological degradation all over the world.

With all eyes on Ukraine, we nevertheless have been warned: The pandemic now upon is entirely due to how we have treated the animals and the forests of the world, the original true wealth of this planet. We have to stop killing ourselves and the planet’s innocent inhabitants before Earth becomes another Mars. Passage of HR 4804 in tandem with the UK bill to ban trophy imports would allow the wildlife of the world to live on this blessed planet.

Cyril Christo and Marie Wilkinson have been bearing witness to the interaction between tribal people and wildlife in Africa for over a generation. They have published four books on Africa including the latest with their son Lysander, Lords of the Earth -The Entwined Destiny of Wildlife and Humanity. Their most recent film is Walking Thunder- Ode to the African Elephant.

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Joseph Maldonado-Passage, center, also known as "Joe Exotic"

A new Tiger King show is out on Peacock, Joe vs. Carole. But the public should pay less attention to Joe vs. Carole and more to United States v. Maldonado-Passage (Joe Exotic’s legal name). While its fact pattern is highly unique, the case against Joe Exotic is predictable in that the court didn’t want to hear anything about misconduct by the United States Attorneys in Oklahoma.

On January 27, US District Court Judge Scott Palk refused to hear any evidence of government misconduct in reducing “Tiger King” Joseph Maldonado-Passage, AKA Joe Exotic’s 264 month sentence. After winning an appeal, developing cancer on top of pre-existing common variable immunodeficiency, Maldonado-Passage secured only a five percent reduction in his sentence; it went from 22 years to 21 years

The arguments before Judge Palk weren’t just that Maldonado-Passage prevailed on appeal. His attorneys said the original sentence violated federal law by enhancing the penalties twice for the same behavior. Maldonado-Passage’s attorneys offered another sentencing range: 121-151 months or around 10 to 13 years, but also that his sentence should be even shorter than that because United States Fish and Wildlife Service (USFWS) agents entrapped him, created a crime that wouldn’t have existed without their interference.

The Netflix series Tiger King was such a funnel cloud of severed limbs, political campaigns, cat prints, and Second Amendment abuses that it’s hard to keep straight exactly what the case against Joe Exotic alleges.

To recap: The jury convicted Maldonado-Passage of the two most serious crimes: separate attempts to hire someone to kill his nemesis, Carole Baskin. The first alleged attempt was the $3000 paid to Allan Glover, the hired hand who conducted his Netflix interview in a bathtub. Glover is the only witness to these alleged actions and he concedes that he never even approached Baskin. Glover’s also admitted to perjuring himself while describing his interactions with Maldonado-Passage.

The second alleged attempt happened after an undercover agent named “Mark” approached Maldonado-Passage and discussed a murder. No money, no weapons changed hands; United States Attorney for Amanda Green admitted as much in an interview for the Netflix series. To be guilty of the crime, someone has to take one of those “overt” actions. Simply ranting about killing someone doesn’t count. Yet that’s exactly what the majority of the case against Maldonado-Passage consists of.

Maldonado-Passage is also convicted of charges related to euthanizing and selling animals. I’ve reported before that prosecutors and investigators very likely committed Brady violations — instances of withholding exculpatory evidence — when they exhumed tiger carcasses.

The Tiger King’s re-sentencing is a great example of why judges should hold hearings on allegations of government and/or prosecutorial misconduct before imposing sentence or re-sentencing any defendant — and any finding of misconduct should slash the length of sentences imposed.

Courts have held that the punishment phase of a case is the wrong forum for violations of professional rules, and that claims of prosecutorial misconduct don't belong in sentencing hearings. In Joe Exotic’s case, Judge Palk said that his attorneys should bring it up in a Motion for a New Trial, which his attorneys plan to do.

That judges should keep misconduct allegations out of sentencing hearings would be a valid argument if there were a viable alternative for sussing out government or prosecutorial malfeasance, but there isn’t. Seeking to hold prosecutors accountable through the grievance system doesn’t really work.

This kind of misconduct accounts for about 30 percent of wrongful convictions; about 44 percent of murder convictions that were later overturned involved district attorneys’ dirty deeds, according to the National Registry of Exonerations of the University of California Irvine, the University of Michigan Law School and the Michigan State University College of Law.

Not only are incorrect murder convictions unjust they permit a dangerous person to possibly harm more people.

And the bar doesn’t really care about this. Only one percent of prosecutors who courts have determined committed misconduct ever undergo discipline. That’s not one percent of all prosecutors; it’s one percent of prosecutors who already had their bad behavior documented and decided in a courtroom. Ninety-nine percent of those already-determined-to-have-cut-corners lawyers skate. And when law professors filed grievances against 21 New York prosecutors last year, the professors got in trouble for complaining. This seedy subsection of the bar can secure a win any way they choose.

Because prosecutors tend to object to accountability, they will likely stomp and reel at any review of their actions in a case against someone else. They’ll predict that defendants will mount attacks on every prosecutor who tries a case in an attempt to reduce their sentence, the need for hearings will cause more court clog.

I think that argument overblows the numbers of people who try their cases and thus invite prosecutors to proceed ethically. According to the most recent numbers from the Bureau of Justice Statistics, 69,348 defendants appealed criminal convictions in 2010; that’s for all 50 state court systems combined. That’s a little over 1300 cases per state where a prosecutor’s trial behavior would even be at issue. But they can’t be evenly distributed: California likely has more than, say, Idaho.


Considering that only 12 percent win their appeals, that’s 8,226 around the country, and surface an opportunity for resentencing, fleshing out misconduct when it counts doesn’t seem insurmountable given what’s at stake: freedom.

Of course, allowing misconduct allegations to be aired during the trial phase isn’t foolproof; misconduct can affect a case in the pretrial phase; that’s the nature of Brady violations. Sometimes accused persons plead guilty because they’re unaware of exculpatory evidence. Those defendants wouldn’t necessarily benefit from litigating misconduct at sentencing.

And some experts aren’t convinced of this solution. Miriam Krinsky, Executive Director of Fair and Just Prosecution, an organization dedicated to reforming the ways criminal cases are pursued, said at the 17th Annual Harry Frank Guggenheim Symposium "Justice at the Crossroads" on March 3: “Not only are the courts a very inadequate vehicle, a far too limited vehicle for dealing with [prosecutorial misconduct], but I also really fear are presuming that the state bar is going to solve any of this.”

Krinsky may be correct. But there’s a more holistic reason to vet a prosecutor’s actions during — and not after, or in a different proceeding — a criminal case. Sentencing hearings go through a checklist of factors in a defendant’s life, facts usually presented to the court through pre-sentence investigation reports

.While criminal trials ask the question: “What happened here?” and determine the party responsible, sentencing hearings ask “How did we get here?” A prosecutor’s professional conduct answers that question. Any decent defense attorney who suspects something hinky should allege it on the record and request a hearing — and courts should grant it.

There are long-term benefits of getting this information on the record as soon as possible. It allows the remedy of sentence reduction when the conviction itself won’t budge because appellate courts are so loath to overturn convictions. Hashing out misconduct early on might speed up post-conviction review by enabling an appellate court to consider it when looking for reversible error.
Right now, anyone whose conviction resulted from misconduct has to exhaust the direct appeal process before post conviction review can expand to evidence outside the trial record in what’s called a petition for a writ of habeas corpus. Not only do prosecutors get away with misconduct, if they are caught, the remedy comes so late that it barely fixes anything. It’s bad enough that the criminal legal system coddles prosecutors and encourages them to use any tactic necessary. What’s worse is that no one can discuss these missteps in hearings where they can make a difference.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.