The Reasons For Trying Cases That Seem Clear-Cut

Guests

Jonathan Turley, professor, The George Washington University
David Bruck, director, Virginia Capital Case Clearinghouse

There's little doubt about who's responsible for the shootings in Tucson last month. Dozens of people watched as the suspect shot congresswoman Gabrielle Giffords and then turned his gun on the crowd. But Jared Loughner plead not guilty to federal charges, and now his life may rest on his lawyer.

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

Of course, every suspect is innocent until proven guilty. Everyone is entitled to due process and a fair trial. But there are times when some might wonder why.

When Arizona's shooting suspect, Jared Lee Loughner, appears in court, it's hard to believe that a single juror will doubt his responsibility for killing six people and wounding 13 others. He's got an experienced lawyer. Judy Clarke represented Unabomber Theodore Kaczynski, and September the 11th conspirator Zacarias Moussaoui.

But how do you mount a defense in a notorious case, where many of the facts are not in dispute? We want to hear from those of you who've been involved in such cases, where the defendant's guilt was not in question - from defense lawyers, prosecutors, victims and jurors. Tell us your story. Our number is 800-989-8255. Email talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, William H. Macy on his new TV show, "Shameless." But first, defending the indefensible. And we begin with Jonathan Turley, a professor of public-interest law at the George Washington University. He joins us here in Studio 3A. Nice to have you back on the program.

Professor JONATHAN TURLEY (George Washington University): Hi, Neal.

CONAN: And if you're involved in one of these cases as the defense attorney, what's your first step?

Prof. TURLEY: Well, your first step is, obviously, to see what your liabilities are. Sometimes that's perfectly clear. Your client's guilt may not be seriously in question, but there still is a question as to whether his guilt can be proven.

As his advocate, you have to put aside many natural feelings. And I've had clients in my past that I felt were not just obnoxious but revolting for what they've done, but that's not your job.

And so you look at the case, and you see what's the best case that can be made. Often that is not a question, necessarily, of guilt as it is for the level of guilt, and the degree of punishment that would come from it.

CONAN: So minimize the penalty - is what you're looking to do, perhaps.

Prof. TURLEY: That's right.

CONAN: There are any number of options available. First of all, I assume you always plead not guilty.

Prof. TURLEY: Yeah - you do plead not guilty. It is possible to not enter a plea, and to have the federal judge enter the plea for you. If you don't - if you choose not to enter a plea, the judge will enter a plea of not guilty. But most of the time, you plead not guilty or you don't enter a plea, and then you deal with it from that point on.

When you don't enter a plea, it often is an indication that you're speaking with the prosecutors for a possible plea agreement. But there's other reasons to do that.

CONAN: And - like?

Prof. TURLEY: Well, part of it is that, you know, your client may still be deciding whether he or she wants to plead guilty or admit to certain facts, certain charges in the indictment. Sometimes it's because you just got into the case, and you want more time to speak with your client.

Then there's also times where you're not sure your client is entirely competent to answer those questions.

CONAN: And that's another issue. You then go into an exploration of the competence to stand trial because a defendant must be able to participate in their own defense. There is also the selection of a - perhaps guilty but innocent by reason of mental defect. And that is a very risky business.

Prof. TURLEY: It is. It's a better defense to make on television than it is in a courtroom.

CONAN: It works a fair percentage of the time on TV.

(Soundbite of laughter)

Prof. TURLEY: Yes, and the attorneys look a lot better in those cases as well. But when you have to make one of these in court, they tend to be heavily disfavored by both the court and the jury.

Part of the problem is the standard. There's a standard called McNaughton standard, which - it came from a case in 1843, where an individual tried to assassinate the British prime minister.

And the House of Lords came up with a standard that said that you could be innocent by reason of insanity if you could show that you didn't understand the nature and quality of the act, or that you did not understand it was wrong.

Well, the McNaughton standard is a fairly harsh standard. In the United States, we went to what was called a Durham standard, which really asks whether the act was the product of mental disease. That's a standard that many people in the field - that is, the psychiatric and psychological bodies - favored.

But after Ronald Reagan's attempted assassination by John Hinckley, legislators were outraged that Hinckley was able to use the insanity defense, and so they ripped up insanity laws across the country.

One of the things that was lost is this idea of committing an act where you were compelled by your mental illness, even if you knew it was wrong. That's going to be critical in a case like Tucson.

CONAN: Yeah. And we should point out - John Hinckley, the assassination attempt was a long time ago. He is still in a mental institution here in Washington, D.C.

Prof. TURLEY: That's right.

CONAN: There is, then, the case and Mr. Loughner is going to face this - he faces federal charges, but he will also face state charges and is at risk to get the death penalty at both phases.

Prof. TURLEY: This is going to be, unfortunately, like the D.C. sniper case -where you had various states and the federal government literally falling over each other to try to take a piece of his hide. And many people thought it was a little bit over the top, as you sort of pile on these death penalty offenses. But everyone wanted their own conviction, and one could certainly understand the emotive value of that.

This is going to be the case here. The Arizona prosecutors are going to want to charge him with murder under state law. The Feds have already moved and charged him.

The interesting thing is that they're going to charge him with the murder of federal employees in the course of their duties. They're saying that the judge in this case, who went to see this outdoor event, was actually on official duty because he wanted to ask the congresswoman what she was going to do about the heavy docket of federal judges.

CONAN: And so that being official business, of course her employees, also federal employees, were there on official business. But the idea of, all right, you're being charge with the murder of a federal judge - which is, we now believe, caught on cameras, on digital recordings; and you're going to be tried in federal court. Good luck.

Prof. TURLEY: Yeah, well, there's certain times when, you know, you have to make lemonade out of lemons, and that certainly is the case where your client is on camera, committing a horrendous offense.

What you look for, then, are threshold issues - such as this issue of whether they were on official duty - and the propriety of using the statute against this individual. Those provisions are going to drive the sentencing here, and you can attack those as a legal matter.

And then the other question is going to be the competence issue and whether you can, in fact, establish that. But you have to remember that, you know, Ted Kaczynski, that you just mentioned, he was diagnosed as a paranoid schizophrenic, but he was still found to be sane.

You know, in her first trial, Andrea Yates, who had killed five children, had a history of paranoid schizophrenia, had just been in the mental hospital two weeks earlier - she was found to be sane.

Now, that was ultimately overturned, but it shows you how difficult this is, where, you know, you had people like Colin Ferguson, Zacarias Moussaoui, these are barking lunatics who were found to be sane under the federal or state standards.

CONAN: Yet not all of them were sentenced to death.

Prof. TURLEY: That's right, but you can - it can end up in a really horrific scene for lawyers. Colin Ferguson, who by most people's measure was a barking lunatic, not only was found to be sane, but because he was found to be sane, he was allowed to be his own lawyer, and it led to a circus.

CONAN: Well, joining us now to help us out on this point is David Bruck, a law professor and director of the Virginia Capital Case Clearinghouse. He's consulted on a number of cases that fall into the kind of categories we're talking about. He joins us from his office at Washington and Lee University School of Law. Nice of you to be with us today.

Professor DAVID BRUCK (School of Law, Washington and Lee University): Thanks for having me.

CONAN: And as a defense attorney in a case where the facts are not in doubt, what do you try to prove to the jury?

Prof. BRUCK: Well, it depends which facts you mean. The - it's very often the case that there's no doubt about what the defendant did, but in any criminal case, and especially in a case where the prosecution asks for the death penalty, the question of who he is and why he did it is front and center, and those facts are in doubt in most cases, especially where there's a great deal of evidence of severe mental illness.

It's way too early in this case to say whether Mr. Loughner is afflicted by severe mental illness. But from what's been reported in the press, the question certainly arises, and people are thinking about it. And the first task of the defense attorney is to make sure that all of the evidence that can possibly be gathered on that issue is gathered.

That means a painstaking background investigation that goes - that has the defense talking to, seeking out and finding everybody that knew this young man across the whole span of his life, and even looking back in the medical records of his family over several generations. So there's really no stone that can be left unturned to find out not just what he did - which may be known to everybody - but why.

CONAN: You've worked with Judy Clarke, Mr. Loughner's defense attorney, in the past. The consensus that I've read is that she's the best.

Prof. BRUCK: She is. She has handled cases like this. She's represented clients, including Ted Kaczynski, with severe mental illness. And it's often -you know, some of the cases that Judy Clarke has handled really illustrate the point that appearances can be very deceiving.

When Ted Kaczynski was first arrested, people thought of him primarily as a political extremist. And I suppose he was that but he also clearly was, and probably still is, a man suffering from - as Jonathan points out - paranoid schizophrenia.

His thoughts about ecology and the lumber companies and all are famous. But what's less well-known is that the man was driven out to live in a packing crate in the mountains of Montana mainly by a fixed delusion that his mother and father were trying to kill him. That's really what dominated his life.

That is the face of mental illness, and this isn't something that anybody chooses. This is something that happens to you. That's the story of how someone goes from being a brilliant mathematics graduate student at Berkeley to being Ted Kaczynski.

CONAN: But is Jonathan right? Is the prospect here to minimize what you fear will be the damage?

Prof. BRUCK: Well, yeah. You know, the question of the insanity defense, of not guilty by reason of insanity, is always something that a lawyer has to look at very carefully when there is evidence of mental illness. But that is the original stacked deck.

I mean, as Jonathan points out, after the Hinckley case, what - the insanity defense was narrowed down to the eye of a needle. Almost no one can thread it. It's not only that the standard is very, very narrow but the burden of proof is such that it - instead of being on the government, it's on the accused. And the burden of proof is now by clear and convincing evidence, which is a very high standard of proof that Congress has really decided that in this particular case, it's better to let 10 innocent men be convicted than to let one guilty man go free. It really is the opposite of the normal presumption.

And on top of all that, the jury is not told in federal cases - or in most insanity cases - that the law provides very, very strict protections to make sure that someone acquitted by reason of insanity is not set free. That is the law, but the jury is not told that.

CONAN: We're talking about defending the indefensible. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan.

There's little doubt about what happened last month in Tucson. Dozens watched as a suspect shot congresswoman Gabrielle Giffords and then turned his gun on the crowd.

Jared Lee Loughner has pled not guilty to federal charges. His attorney faces the challenge of defending a client who many already believe guilty.

We're talking today about defending the indefensible. We want to hear from those of you who've been involved in cases where the defendant's guilt was not really in question - from defense lawyers, prosecutors, victims, jurors. Tell us your story: 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Our guests are Jonathan Turley, a lawyer and professor of public-interest law at George Washington University; and David Bruck, also an attorney who's consulted in the past with the defense lawyer now representing Loughner. He's also director of the Virginia Capital Case Clearinghouse.

Let's get a caller in, and this is Matt(ph), Matt with us from Detroit.

MATT (Caller): Hi, how are you today?

CONAN: Very well, thank you.

MATT: Yes, I'm a criminal defense attorney, and I handle many capital cases here in the Detroit metropolitan area. And I've always looked at my role - is to make sure that my client gets a fair shake, and make sure that the people prove their case beyond a reasonable doubt.

And I've had a - you know, sometimes, you know, what - the actions that my client took are not in question. However, is he guilty of what, is really the true question. And that would be - you know, I had a case just in December where a guy comes him, his wife - they were separated - is in bed with another man. OK, she - and he stabs her, he stabs them. Nobody died. So he's charged with assault and attempted murder.

Well, you know, we were able to convince a jury that because of his mental state, you know, he didn't have the mindset, or the requisite intent, to form the formulation to murder, actually. And so he was found guilty of a lesser offense.

And now obviously in Tucson, you know - I think is a more daunting challenge for the attorney. But if you - you know, I've always attacked it from the standpoint that, you know, you're going to make the people prove their case.

CONAN: Of course. How much does publicity make a difference? Obviously the Loughner case, everybody's going to know about that.

MATT: I think when it comes to jury selection, obviously it's, you know, it's important. Now, you know, if your judges are elected, I think it's extremely important. You know, I think that how a press case is handled in Michigan, where we elect judges, what we would term as a press case and the one that really got not attention is handled quite a bit differently.

The judges and their - you know, they're - they have to face the people. So yes, I think it makes a huge difference.

CONAN: David Bruck, I wondered if - to bring you in on that. How much difference does it make? Well, this is obviously a very high-profile case in Tucson.

Prof. BRUCK: Well, it (coughing) excuse me - it probably makes more difference - excuse me - on the way that the prosecution handles the case. There is going to be political pressure on the government, for example, to seek the death penalty, where based on the evidence of - if this man does turn out to be severely mentally ill, there would be less reason for the government to do that in a lower-profile case.

I'm inclined to think that the attorney general will probably decide this case on the facts, rather than on public pressure. And for that reason, I don't think it's at all a foregone conclusion that the death penalty will even be asked for, much less opposed in this case.

CONAN: That's in federal court. There's also going to be state judges.

Prof. BRUCK: Well - and sure. You know, the way the prosecution handles the case - I think, certainly, these are elected public officials, and they are responsive to public pressure.

My experience generally - and I think most people that work in this system - is that juries are more impervious to that than - there's a tendency to screen out a lot of the noise. Part of the effect of publicity that creates more of a challenge for the lawyer is just that the lawyer has to screen out the noise.

When you are first appointed to represent a person like Jared Loughner, it just seems like you've been dropped inside of an industrial washing machine. There's just such a horrible racket, and the media is descending on you.

And the challenge for the lawyer is just you absolutely tune that out - I mean, to think about whether there is something that has to be said to the media for a particular purpose, to defend the client. But other than that, just to sort of get yourself to a calm place, where you can focus on the needs of the client and on protecting the client.

That's something that Judy Clarke is especially good at doing. She just doesn't really notice the fact that there's this huge, high-profile racket going on around her.

But in the end, I'm not sure. Other than the effect on the decisions by prosecutors, I'm not sure that the public, high-profile nature of the case really does make all that much difference.

CONAN: Jonathan Turley, does that cut the other way? You can have an occasional defense attorney who is a charismatic personality and can say, my client was orphaned at the age of three days and has suffered terribly in his youth, and you know, these terrible things have happened to him and blah, blah, blah - and try to play to the public. Does that not work particularly well, either?

Prof. TURLEY: Well, first of all, many of these cases, you're under gag orders with the court. You're certainly under ethical restrictions about what you can say publicly. It's also not a good move to make, to try to litigate cases in public.

You do have a duty to respond. Your client, hopefully, if you prevail, is going to have to go out into the world. I mean, when I represented Danny King, who was accused of being a Russian spy, one of the first things I did after we won that case was to arrange for him to go back to his small town and invite everyone to the local gymnasium, so they could ask every question they wanted to ask.

You really need to look ahead as well as to what shape you're going to leave your client at the end of this.

CONAN: Let's go next to John, John with us from Goodyear, Arizona.

JOHN (Caller): How you doing?

CONAN: Very well, thanks.

JOHN: Yeah, I want to say a lot, but I'll consolidate it to a really quick comment. It seems like, to me, this is almost the kind of situation where the judicial system puts itself - I don't know - kind of like on a soapbox or, you know, on a platform.

Ultimately, we have a situation where, like you said, the guy is seen by many people; he's on film. It's a waste of time to make such a circus out of it, but we see - this is where everybody's able to see all the wheels of justice, if you will, turning.

Yet - I'm a correctional officer, and I can tell you there's a lot of people in prison - and I'm not really giving, you know, my opinion about individual cases -but there's a lot of people in prison where I believe, as a correctional officer and a citizen, where there was horrible miscarriages of justice; people that are serving time for crimes, you know, that, you know, we're paying for the trials, we're paying for them to be in prison, where they could be out and be productive members of society, where a guy like Jared Loughner will never be a productive member of society again. No matter how long his trial is or what witnesses are called, or experts, it's going to end up the same: He's going to be in prison until he dies. So why are we carrying this out when ultimately, it's already known what he's done, there's no question. He's going to be in prison.

CONAN: Jonathan Turley, let me put that to you. This is going to cost first, the federal government, then the state of Arizona, a lot of money.

Prof. TURLEY: Well, justice isn't cheap. I mean, the fact is, you can't do it on the cheap. You have to convict someone, if you are going to convict them, in full knowledge of not only what they did but who they are.

And understanding a crime and the criminal does not mean you agree with it, but you have to try to understand the motivations. Many of these are intent crimes. Scienter is required to establish what the intent was.

And I have to tell you: After 30 years of practice, the greatest variety of clients and defendants that I have met have been murderers. They come in the greatest variety. I expectt that David has found the same thing. And so we have a duty to get it right, even if we are convinced as to the merits.

And I also want to point out that there have been many cases where everyone agreed on the merits, that someone was guilty, and they proved to be innocent.

CONAN: Here's an email, this we have from Larry - Lane(ph), rather, in California: Everyone deserves the right to defend themselves in court, even when it's obvious they committed the crime. I, however, find it annoying that NPR and other news outlets have been referring to Jared Loughner as the accused and not the perpetrator.

We don't need a guilty verdict to know he committed this crime. There were many witnesses, and he was caught in the act, and it seems a bit pedantic to insist on calling him the accused - we sometimes use the suspect - until the time of conviction. In cases like this, you should let the rule of not prejudging go and just call a duck a duck.

Well, that's a question for journalism and not for lawyers, but we try to stick to the rules we write for ourselves, and that says until you're convicted, you're the accused; you're a suspect. You're not guilty until you're proven guilty, however silly that may seem at various times. But as Jonathan says, every once in a while, there's a surprise.

So let's see if we go next to - this is - excuse me, let's go to Alan(ph), Alan with us from Davenport in Iowa.

ALAN (Caller): Yes, I have a question. I've been listening to all - the thing, and it's just a technical question. I was curious: Does the insanity defense have to be used in connection with a crime? For instance, like the guy could believe pigs fly, but yet that has no relation to a murder, for instance.

CONAN: David Bruck?

Prof. BRUCK: Well, it's a good question. The insanity defense could only be proven if it's established that the defendant didn't appreciate the wrongfulness of what he did, of the actual crime. So sure, if someone who is mentally ill but that - it's just a coincidence, and that happens to have nothing to do with the crime, would not make out the insanity defense. That may not be something that happens that terribly often when you're talking about severe mental illness like paranoid schizophrenia, but it could happen.

The other thing about mental illness, though, is that even if there is no insanity defense, or even if one is presented and rejected, there remains the issue of punishment - and especially if the prosecution seeks the death penalty.

The effect of the person's mental illness on his thinking, on his motivation, is tremendously important for deciding whether a given convicted murderer is one of those 1 or 2 percent who deserve the death penalty - the most guilty, the most culpable - or whether life imprisonment, without the possibility of parole, is punishment enough. That's the punishment that 99 percent of murderers get anyway. And it would be very hard to imagine how a severely mentally ill person could, in justice and fairness, fall into that most guilty 1 percent, rather than the 99 percent who do not receive the death penalty.

The death penalty also is a large part of the reason why these cases cost so much. If the decision is made to forego that, the taxpayers will save an enormous amount, and the case will be enormously simplified.

CONAN: Let me ask a related question from email from Timark(ph) in Chagrin Falls, in Ohio. I always thought that just by virtue of committing a heinous public act, like the shootings by Jared Loughner, that one can assume the suspect is mentally ill. A sane person wouldn't dream of doing such a thing. Please comment.

Prof. BRUCK: Well, I don't know if that's entirely true. I mean, there are people driven by political motivation - you know, assassins. Not all assassins by - are, by definition, insane although they, you know, they do terrible things.

I think it really is a question that depends on the facts of the individual case, and we really need to look at these cases one at a time. You could say that anybody that commits a crime must not be normal. And I suppose in some sense, that's true. But that's doesn't tell you whether they're legally guilty, and it doesn't tell you what the punishment should be if they're convicted.

CONAN: OK. Alan, thanks very much for the call.

We're talking about defending the indefensible. Our guests, David Bruck, you just heard, a clinical professor of law and director of the Virginia Capital Case Clearinghouse; and Jonathan Turley, a professor of public interest law at George Washington University. You're listening to TALK OF THE NATION from NPR News.

Let's go to Rick(ph), and Rick is with us from Albany, Georgia.

RICK (Caller): Hi. Good afternoon.

CONAN: Afternoon.

RICK: I'm a criminal defense attorney in Albany, Georgia, and one thing that I've noticed over the years is that as a social control, oftentimes juries will convict out of fear because they don't want the mentally ill in a restaurant with them, at the mall or so forth, even though the evidence may not be - may not prove guilt beyond a reasonable doubt. They're just afraid to have these people back out into society - in society, and our prisons have become very much a warehouse for the mentally ill.

CONAN: Jonathan Turley?

Prof. TURLEY: Well, that's a very good point. One of the things that you have to track very closely is how those types of feelings by the jury may affect your case. You know, I have to agree with something David said earlier, that I think we often sell juries short - not to the caller selling them short. I think that's a very solid point.

But, you know, when I represented the so-called Dr. Plague case of Dr. Butler in Texas - in Lubbock, Texas. This was a small town that was sent into an absolute panic over the allegation that a plague had been given to al-Qaida operatives. And we spent a lot of money trying to get a venue change, to get out of Lubbock. I wanted to be anywhere but Lubbock.

And, you know, a very seasoned criminal defense attorney told me, you know, pulled me aside and said, look, you know, I know you're going to try to get out of Lubbock, but you should understand: The jurors in Lubbock, they'll give him a fair hearing. And they did. You know, we lost the venue, but they ruled in favor of our client on all the national security counts.

And I think the jurors had a good - an important task there. You're limited, to some extent, in what you can tell a jury as to what will happen to the defendant later. And certainly, the prosecutors are often challenged for raising this. Sometimes, prosecutors will intimate that you sure better find him guilty and sentence him death or he could end up back out of jail...

CONAN: Mm-hmm.

Prof. TURLEY: ...that's something that can get a prosecutor in serious trouble.

CONAN: Rick, thanks very much. And let's see if we can get Allison(ph) in. Allison with us from Charlotte.

ALLISON (Caller): Yes.

CONAN: Hi. Go ahead, please.

ALLISON: Well, I was calling because we were family-member victims of the Atlanta courthouse killing that you mentioned at the top of the hour.

CONAN: Yes. Mr. Nichols.

ALLISON: And I was calling, I guess, from a victim's perspective.

CONAN: And it's interesting. He was eventually the - to get the death penalty, the jury required a unanimous verdict. I wondered how you felt at that moment.

ALLISON: Well, I mean, it's very complicated because, I mean, he was guilty. It was certainly not anything that was questionable, but it came down to - for the jury - whether you were for the death penalty or against the death penalty.

CONAN: And what did you think, as a family member?

ALLISON: Well, I mean, we were, in all honesty, disappointed that - what we found out later, the jurors who voted against the death penalty had - pretty much had their minds made up beforehand, that they were doing crossword puzzles, and you know, when I gave my victim testimony, wouldn't even look me in the eye.

So I think that the death penalty really is, you know, it's a problem for some people to deal with, but the state of Georgia has that as a law. The prosecutors need it and deservedly so for - there was a judge that was killed, a court reporter and a federal agent, and other people. And if you're going to have the law, you have to - that's the perfect case to have a death penalty case.

CONAN: There was - just to clarify, obviously, there was a unanimous verdict. You had to have a unanimous recommendation for the death penalty in the state of Georgia. And, David Bruck, we just have a few seconds left, but I wondered if you wanted to reply to that.

Prof. BRUCK: Well, I certainly understand how the caller must have felt. Victims' families are like the rest of the public in that they react differently. People respond very differently to these horrible crimes. And I think wherever they stand on the issue with the death penalty, I think we should keep in mind that since so few people are sentenced to the death penalty, that is probably not a good way that for us to rely on...

CONAN: And I'm afraid we're going to have to end it there.

Thanks very much for your time. This is NPR News.

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