December 28, 2006
The North Carolina bar filed ethics charges Thursday against the prosecutor in the Duke lacrosse case, accusing him of saying misleading or inflammatory things to the news media about the athletes under suspicion.The punishment for ethics violations can range from admonishment to disbarment.
Among the four rules of professional conduct that District Attorney Mike Nifong was accused of violating was a prohibition against making comments "that have a substantial likelihood of heightening public condemnation of the accused."
The charges will be heard by an independent body called the Disciplinary Hearing Commission, made up of both lawyers and non-lawyers.
In a statement, the bar said it opened a case against Nifong in March 30, a little more than two weeks after the party where a 28-year-old student at North Carolina Central University hired to perform as a stripper said she was raped.
Another rule the rogue prosecutor is alleged to have broken is the one against dishonesty, fraud, deceit, and misrepresentation".
Methinks that DA Nifong is going down fast.
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December 27, 2006
The Supreme Judicial Court ruled today that it had no authority to order the Legislature to vote on a ballot initiative to ban gay marriage, but the justices gave Governor Mitt Romney a symbolic victory by scolding lawmakers for shirking "their lawful obligations."The SJC, the same court which legalized gay marriage in 2004, issued the unanimous 11-page ruling this morning in response to a lawsuit spearheaded by Romney, who is expected to run for the 2008 Republican presidential nomination as a social conservative.
The justices wrote that all the legislators took an oath to uphold the Constitution and will "ultimately will have to answer to the people who elected them."
Eric Fehrnstrom, a spokesman for Governor Mitt Romney, hailed the ruling as vindication for the plaintiffs even though the court dismissed the suit.
"We are very pleased that the court has confirmed once and for all that the Legislature has a constitutional duty to vote on the marriage amendment and that any failure to do so would be a violation of their oaths of office," Fehrnstrom said.
Interesting, isn't it, that the judges here find a violation of the constitution with no remedy, while a couple of years back they found a remedy with no actual violation of that constitution. I guess that their activism does have limits -- and those limits are exceeded when it might allow the people of Massachusetts to vote in a non-liberal manner.
UPDATE -- 12/31/06: An interesting piece on the topic from Opinion Journal.com.
The petitioners sued the legislature for abrogating its constitutional duty, and the state Supreme Judicial Court took the case. In its ruling last week, it agreed that the legislature's duty to vote on the measure was "unambiguous." But it claimed to be powerless to compel a vote. So the Supreme Judicial Court of Massachusetts, whose own arrogation of power created this mess, has suddenly discovered the limits of its power to clean it up.All in all, this is quite the political spectacle. First judges usurp the power of the legislature to dictate their own social policy. Then the legislature uses a procedural ruse to deny voters a say on the gay-marriage issue. And these are some of the same people who say Iraqis aren't ready for democracy.
Have we reached the point where the federal government can intervene on the grounds that Massachusetts no longer has a functioning "republican form of government"?
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December 22, 2006
Prosecutors dropped rape charges Friday against three Duke University lacrosse players accused of attacking a woman who had been hired to strip at a team party, but the three still face counts of kidnapping and sexual assault.District Attorney Mike Nifong faxed a copy of the notice of dismissal to defense attorneys on Friday at 11:45 a.m. EST. The move took defense attorneys by surprise
In a news conference Friday afternoon, lawyers for the three players called on Nifong to drop the other charges as well, saying there is no evidence that their clients kidnapped or assaulted the woman in any way.
Nifong did not immediately return calls seeking comment about the dismissal.
The mere lack of evidence or a credible accuser, however, was not enough to get Nifong to dismiss all charges. Neither was the disclosure of prosecutorial misconduct on his part last week. And his actions still leave these young men facing a potential 20 years in prison. So Nifong tried to hide the story in by announcing it just before lunch on the Friday before Christmas, in the hopes that the disintegration of his case would be missed by the press.
The Washington Post's Andrew Cohen believes, as I do, that this ultimately bodes ill for Nifong's case.
There are two ways to digest today's big news about the dismissal of rape charges against the Duke lacrosse students. You can say that a very weak case against the three defendants has just gotten measurably weaker, which makes it almost non-existent. Or you can say that by getting rid of the rape charge, the prosecutor, and presumbly his complaining witness, now can move forwad on more solid legal and factual ground. While I think there is some truth to Option B, I'm going with Option A.Why? Because whatever shred of credibility the alleged victim had-- whatever residual confidence people may have had in her story until now-- is now lost. If the woman is now unsure she was raped why should anyone believe her beyond a reasonable dobut going forward that she was sexually assaulted-- touched in a way short of rape? I think this likely loss of credibility will more than offset the fact that the prosecution's case, without rape, is much easier to prove against any or all of the three defendants. For them, Christmas came a few days early.
The dismissal documents may be found here.
Indeed, Nifong may be on the hook for criminal and or civil misconduct -- having possibly acted in a fashion that overcomes the presumption that he is immune from damages.
Great covrage at Durham Wonderland and LaShawn Barber.
More at Gay Orbit, A Blog For All, HuffPo, Florida Cracker, Alas, A Blog, Outside The Beltway, Digger's Realm, American Pundit, Opinipundit, Independent Conservative, NixGuy, Lead & Gold, Sensible Mom, Bitch Girls, HoyStory, Tapscott, Michelle Malkin, Talk Left, American Pundit, Hot Air, Johnsonville News, Mary Katherine Ham, Betsy Newmark, Leaning Straight Up, Bill's Bites, JammieWearingFool, Stop the ACLU, Unpartisan, Kevin Show, It Shines For All, Booker Rising, Hit & Run, Ace of Spades HQ, Pardon My English, Dartblog, Astute Bloggers, Six Meat Buffet, Wizbang, QandO, Don Surber, Mrs. Gribbit's Word
UPDATE: The New York Times has this great piece on the ongoing disintegration of the case.
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December 20, 2006
Claiming he is the victim of legalized extortion carried out under eminent domain powers, a landowner in New York is asking the Supreme Court to hear his case.Landowner Bart Didden claims in a petition that a developer convinced the village of Port Chester, N.Y., to seize his land through eminent domain after Didden had refused to pay the developer $800,000.
As part of a 1999 redevelopment plan, the council had designated Didden's land as a "redevelopment area." This gives the council the power to condemn the property and hand it over to a developer of its choice.
Didden planned to build a CVS Pharmacy on the site, but the developer, Gregory Wasser of G&S Investors, wanted to build a Walgreens there. According to the petition, Wasser threatened to convince officials to condemn Didden's land under eminent domain if Didden did not pay him $800,000 or make him a 50 percent partner in the CVS project.
Didden says he refused the offer on Nov. 5, 2003. On Nov. 6, 2003, the village of Port Chester filed a condemnation petition to acquire the land and transfer the lease to G&S to construct a Walgreens.
Didden calls the case "extortion through the abuse of eminent domain" justified by the 2005 Supreme Court decision in Kelo vs. City of New London, in which the court ruled that the Fifth Amendment "takings clause" allows the government to condemn private property for redevelopment purposes.
"Essentially, the courts have ruled Kelo turns any redevelopment zone into a Constitution-free zone for property owners confronted by politically connected developers," Dana Berliner, a senior attorney with the Institute for Justice, said in a statement.
Frankly, we simply need to go a step further, and ban the use of eminent domain in any case where the land will leave government hands in less than 50 years -- or at least permitting land-owners and their heirs the right to repurchase their property for $1 if the land is to be turned over for private development in any time period less than half a century.
And if not, we simply need the Supreme Court to declare that private property, as understood by Americans since the founding of the Republic, no longer exists in this country.
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December 16, 2006
Executions by lethal injection were suspended in Florida and ordered revamped in California on Friday, as the chemical method once billed as a more humane way of killing the condemned came under mounting scrutiny over the pain it may cause.Gov. Jeb Bush (R) ordered the suspension in Florida after a botched execution in which it took 34 minutes and a second injection to kill convicted murderer Angel Nieves Diaz. A state medical examiner said that needles used to carry the poison had passed through the prisoner's veins and delivered the three-chemical mix into the tissues of his arm.
In California, a federal judge ruled that the state must overhaul its lethal-injection procedures, calling its current protocol unconstitutional because it may inflict unacceptable levels of pain.
Judge Jeremy D. Fogel of the U.S. District Court for Northern California ordered the state to revise its procedures and consider eliminating the use of two drugs: pancuronium bromide, which causes paralysis, and potassium chloride, which causes cardiac arrest.
The judge did not order executions halted, though they have been effectively on hold since February while he conducted a review.
The "pervasive lack of professionalism" in the executions, Fogel wrote, "at the least is very disturbing."
Forgive me, but since when did it become a moral, much less constitutional, requirement that executions be painless, bloodless procedures that spare teh convicted killer pain? Yes, I know we do not permit "cruel and unusual" punishment, but is it really cruel that a condemned man might be conscious of his punishment being carried out? Does it really shock the conscience that the guilty might feel some level of fear and pain, just like his victims did as he snuffed out their innocent lives? No, it does not.
But this illustrates the fundamental problem with the jurisprudence in this area. We have allowed judges to set themselves up as philosopher kings, deciding on the basis of some undefined standard what constitutes "cruel and unusual". We have judges who are intent upon ensuring that the condemned not experience on bit of suffering as their lives ebb away in payment for their crimes. The ultimate end is likely to be a ban on lethal injection -- currently considered to be a "humane" method of execution, on the grounds that any suffering on the part of the condemned constitutes cruelty which shocks the conscience.
However, I would argue that your average American holds a very different position on the issue. We recognize that capital punishment is, in the end, punishment. And while we do not want ancient spectacles like those in the Colosseum, burning at the stake, or crucifixion, we are not troubled that a killer might feel some discomfort as he experiences his much-deserved demise. I'd bet that your average American would have no problem with seeing the return of firing squads or the hangman's noose as the standard form of execution. Indeed, only the horrors of the Holocaust render the gas chamber unacceptable to me, the method of execution indelibly linked to the Hitlerian genocide and therefore morally unacceptable.
So I'll say it plainly -- rather than a lethal injection of three drugs, let's go back to the lethal injection of lead by a team of marksmen.
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DD, rlcuyjew, >:O, ikavpqpk, 79188, December 15, 2006
The first is a motion to throw out the photo lineup.
The woman who said she was raped at a party thrown by Duke's lacrosse team misidentified her alleged attackers in a photo lineup that was "an incoherent mass of contradiction and error," defense lawyers argued in court papers filed Thursday.Attorneys for the three indicted players filed a motion asking a judge to bar prosecutors from using the photo lineup at their clients' trial and prevent the accuser from identifying the players from the witness stand.
Duke University law professor James E. Coleman Jr. said the case would be "effectively dismissed" if the court finds the lineup inadmissible "and rules that it is so suggestive that there can't be an in-court identification."
What evidence would be left without the identification? None, based upon yesterday's information about the DNA testing.
And then there is this -- which may be irrelevant, but could be a bombshell.
The woman at the center of the Duke lacrosse rape case is pregnant and due to give birth any day, roughly nine months after the team party where she says she was raped by three men.The pregnancy was confirmed late Thursday by a person familiar with the case, speaking to the Associated Press on the condition of anonymity. Fox News and WRAL-TV in Raleigh reported that she gave birth Thursday night.
There had been no prior indication that the woman, a 28-year-old college student who already has children, was pregnant. She has not spoken in public since granting an interview to the News & Observer of Raleigh shortly after the party.
The person who confirmed the pregnancy to the AP had no information about the father. Defense attorneys have stressed for months that no sex occurred at the party. They have cited DNA testing that found genetic material from several men in the accuser's body and in her underwear -- but none from any member of the lacrosse team.
If the baby's father is not one of the accused, it probably won't impact the case at all. On the other hand, if one of the accused is the father, that takes the case in an entirely new direction. (UPDATE: She is not due until February. A judge has ordered a paternity test anyway.)
UPDATE: The fraud appears to be confirmed. Where is the US Department of Justice to deal with this obvious conspiracy to violate the civil rights of these young men?
The head of a private DNA laboratory said under oath today that he and District Attorney Mike Nifong agreed not to report DNA results favorable to Duke lacrosse players charged with rape.Brian Meehan, director of DNA Security of Burlington, said his lab found DNA from unidentified men in the underwear, pubic hair and rectum of the woman who said she was gang-raped at a lacrosse party in March. Nurses at Duke Hospital collected the samples a few hours after the alleged assault. Meehan said the DNA did not come from Reade Seligmann, David Evans, or Collin Finnerty, who have been charged with rape and sexual assault in the case.
Meehan struggled to say why he didnÂ’t include the favorable evidence in a report dated May 12, almost a month after Seligmann and Finnerty had been indicted. He cited concerns about the privacy of the lacrosse players, his discussions at several meetings with Nifong, and the fact that he didnÂ’t know whose DNA it was.
Under questioning by Jim Cooney, a defense attorney for Seligmann, Meehan admitted that his report violated his laboratoryÂ’s standards by not reporting results of all tests.
Did Nifong and his investigators know the results of all the DNA tests? Cooney asked.
“I believe so,” Meehan said.
“Did they know the test results excluded Reade Seligmann?” Cooney asked.
“I believe so,” Meehan said.
Was the failure to report these results the intentional decision of you and the district attorney? Cooney asked.
“Yes,” Meehan replied.
This farce needs to be ended immediately -- and Nifong needs to go to jail.
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December 11, 2006
The Supreme Court ruled on Monday that the federal appeals court in California overstepped its authority when it granted a new trial to a murder defendant whose victimÂ’s relatives sat at the trial, in the view of the jury, wearing buttons with the victimÂ’s picture on them.The appeals court, in granting a writ of habeas corpus, found that the buttons were inherently prejudicial and deprived the defendant, Mathew Musladin, of the right to a fair trial.
Voting 9 to 0, the Supreme Court overturned that ruling in an opinion by Justice Clarence Thomas that did not actually decide whether the buttons were prejudicial. That was, and remains, “an open question in our jurisprudence,” Justice Thomas said. And that was precisely where the appeals court had gone wrong, the justices agreed; it had based a grant of habeas corpus on a legal principle that the Supreme Court itself had not adopted.
The short answer is that the justices unanimously decided that there is no basis in law or precedent for holding that the actions of private individuals (wearing buttons showing the victim in a murder case) constitutes state action depriving a defendant of due process.
I do find it of concern, however, that some members of the court seem to leave open the door for the possibility that the buttons do constitute a violation of the defendant's rights.
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November 30, 2006
Wholly guacamole?That's the issue in a fraud lawsuit filed Wednesday against Kraft Foods, Inc., by a Los Angeles woman who claims the company's avocado dip doesn't qualify as guacamole.
"It just didn't taste avocadoey," said Brenda Lifsey, who used Kraft Dips Guacamole in a three-layer dip last year. "I looked at the ingredients and found there was almost no avocado in it."
She is seeking unspecified damages and a Superior Court order barring Kraft from calling its dip guacamole. Her suit seeks class-action status.
The Kraft product contains modified food starch, coconut and soybean oils, corn syrup and food coloring. It is less than 2 percent avocado, which in traditional recipes is the main ingredient of the Mexican dish.
The government doesn't have any requirements on how much avocado a product must contain to be labeled guacamole, said Michael Herndon, a spokesman for the U.S. Food and Drug Administration.
Northfield, Ill.-based Kraft said it had not seen the lawsuit but believed it was not deceiving anyone.
"We think customers understand that it isn't made from avocado," Claire Regan, Kraft Foods' vice president of corporate affairs, told the Los Angeles Times. "All of the ingredients are listed on the label for consumers to reference."
However, the company will relabel the product to make it clearer that the dip is guacamole-flavored, Regan said.
In other words, the information was already there for the lazy litigant to see – but she didn’t bother looking.
Dismiss the case. Disbar the lawyer. And donÂ’t buy the cheapest product on the shelf and expect it to be 100% avocado.
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November 29, 2006
A journalistÂ’s ability to protect the identity of confidential sources has been further eroded by the Supreme CourtÂ’s refusal this week to stop a prosecutor from reviewing the telephone records of two New York Times reporters. This is the latest legal blow to the diminishing right of journalists to shield informants who often provide information of great interest and importance but who might be punished if their identities were known.
Yeah, that’s right – folks who engage in criminal leaking of juicy information that the NY Times wants to publish on Page One because it helps the enemies of America. That’s right – the NY Times argues that journalists ought to have the right to obstruct justice.
The case arose from a Chicago grand jury investigation into who told the two reporters, Judith Miller and Philip Shenon, about actions the government planned to take against two Islamic charities in late 2001. The government contends that the reporters, in performing the normal journalistic practice of calling the charities for comment, effectively tipped them off to impending raids and asset seizures, undermining the effort.
Yes, it is true that the reporters may not have done anything criminal, but it would certainly appear that their sources did. That is why the information on the sources is necessary – it is essential to punishing criminal wrong-doing by the sources.
Rather than drag the reporters into court, where they could have protected their sources by refusing to testify, the prosecutor subpoenaed their phone records for 11 days in 2001. A trial court prohibited the government from obtaining the records from the phone companies, but a divided appeals court reversed that decision. Now the Supreme Court, in refusing to intervene, has effectively allowed the prosecutor to search through the records in hopes he can pinpoint the source of the leak.
Indeed, precisely because the reporters would have obstructed justice and jailed for contempt it is necessary for the prosecutors to obtain the phone records. If the reporters would recognize that they are subject to precisely the same laws that apply to the rest of Americans, such a subpoena would not be necessary. Bu reporters seem to believe that they are different, endowed by rights above those of ordinary Americans, and so the subpoena is the only way to get the records. The entire thing could be settled by an offer to reveal the sources to the investigators in the case – but the NY Times views itself and its employees as more important than the criminal justice system.
This is a bad outcome for the press and for the public. The phone records reveal the identities of lots of sources having nothing to do with the leaks. The appeals courtÂ’s disingenuous suggestion that The Times might redact irrelevant records would simply have helped point to possible leakers.
Again, that is the choice of the New York Times and its employees – revealing the sources directly would avoid this undesirable outcome, and sustain the rule of law over the rule of the media.
The public will be ill served if this case reduces the willingness of officials to reveal important but sensitive information. The privilege granted to journalists to protect their sources needs to be bolstered with a strong federal shield law that would preserve the public interest in newsgathering and dissemination of information.
Actually, the public will be well-served if the case reduces the willingness of unscrupulous officials to reveal important sensitive information that undermine the Crusade Against Jihadi Terrorism and other national security matters. There should be no special privileges granted journalists, no shield laws and no right to obstruct justice. AmericaÂ’s security depends upon it.
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November 04, 2006
For the past several weeks, there has been a rumor circulating among high-level officials in Washington, D.C., that a member of the U.S. Supreme Court has received grave medical news and will announce his or her retirement by year’s end. While such rumors are not unusual in the nation’s capital, this one comes from credible sources. Additionally, a less credible but still noteworthy post last week at the liberal Democratic Underground blog says, “Send your good vibes to Justice Stevens. I just got off the phone with a friend of his family and right now he is very ill and at 86 years old that is not good.”Normally, this news might be too ghoulish to repeat publicly. Nevertheless, with the election just days away, it is news that should be considered. It points out what could be a once-in-a-lifetime chance for the 20-year movement to recast the court with a constitutionalist majority. It would be a cruel twist indeed for conservatives to “teach Republicans a lesson” next Tuesday, only to be taught a lesson themselves within months when new Senate Judiciary Chairman Patrick Leahy (D.-Vt.) leads a Democratic majority against the most important Supreme Court nominee in decades. Conservatives whose mantra is “no more Souters” should bear in mind Robert Bork’s fate after the Senate changed from Republican to Democratic hands in 1986.
And the "moderate" Democrats running this year? What would they do?
With 55 Republican senators, the majority needed for the “constitutional option” was never a sure thing. But with significant Republican losses on Tuesday, it will surely be buried, leaving Senators Teddy Kennedy (D.-Mass.) and Chuck Schumer (D.-N.Y.) free to return to filibusters, including against Supreme Court nominees. Schumer is reported to have assured Democrats that Bob Casey Jr. -- despite running as a moderate Senate candidate -- would be supportive of Democratic efforts to block constitutionalist judicial nominees. “There’s no worry on judges,” said Schumer. “And judges is the whole ball of wax.” Other supposedly centrist Democratic candidates including Harold Ford Jr. (Tenn.), Jon Tester (Mont.) and Jim Webb (Va.) have refused to rule out filibusters against judicial nominees.
So my friends, get out and vote Republican if you have a Senate race (not to mention in your local House race). Even if you don't like the candidate, vote for Republican.
Or else all the progress we have made over the last six years in filling judgeships with strict-constructionist judges will be ended in an instance.
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September 06, 2006
T he reporters working the story broke no rules. They violated no laws. They did their jobs, and like a lot of journalists, they probably believed that a free press protected under our Constitution was not only a good thing, but an integral part of a democracy.It all sounds great.
Until you consider they're facing prison time.
Sounds dire – until you consider why they face prison time. They have been subpoenaed to provide evidence in a criminal investigation – in particular, evidence regarding who leaked secret grand jury testimony contrary to the laws of the United States. Indeed, these reporters were the recipients of that information, presumably from the criminal or criminals who did the leaking. They have evidence of criminal activity, and like any other citizen have been called to supply evidence in the course of a criminal investigation.
Except they have refused to testify. If this were you or I, we would be hauled off to jail on charges of contempt of court until such time as we testified. These two reporters, on the other hand, remain at liberty while defying the subpoena power of a court and a grand jury while they appeal their contempt citations to a higher court. They want a declaration that reporters, among all the professionals in the United States, have a constitutional right to defy a subpoena on the basis of freedom of the press. They want the Bill of Rights to grant them a special right, granted to no one else. What arrogance!
John Canzano wants to make this a matter of life or death for the First Amendment.
Journalism sometimes depends upon sources being able to share relevant information without fear of exposure and retribution. Reporters need to remain independent. There are times when the use of an anonymous source can have significant benefits.Reporters are not above the law. And editors go to great lengths to restrict the use of anonymous sources, including weighing the public's need to know. In this case, the reporters reported relevant information that was presented to them. And for that, they've become the focus of prosecutors.
T his isn't a matter of national security. A child's life is not in danger. We're talking about stories relating to a performance-enhancing drug scandal -- important coverage that resulted in sweeping changes in sport. Federal prosecutors, frustrated and at a dead end in trying to root out the leak, decided the best way to proceed is to lock up the messengers.
The only thing being stifled here is a free press, which is guaranteed by the First Amendment. If reporters are compelled to identify confidential sources, you might as well declare it dead.
As a matter of principle, most reporters will choose jail over revealing a confidential source. But time behind bars shouldn't ever be a consequence for those who have followed the rules.
There is a grand jury involved in this case, now. And it's in the hands of a court of appeals now. And lawyers have argued. And subpoenas have been issued. And the defendants are two reporters who haven't broken a law anywhere on the books.
Land of the free, we're told.
But journalists have no right to make such a promise. They are not privileged with the ability to defy laws of general applicability because they believe that “the people’s right to know” trumps the laws of the United States in cases that they consider to be relatively less important than giving protection to the illegal activity of their sources. And that this case goes to the very heart of our legal system – the ability of a grand jury to gather evidence and conduct deliberations related to the bringing of criminal charges without the content of those investigations and deliberations being made public – is certainly a matter of grave importance for the administration of justice.
For Canzano to declare that applying laws to reporters in precisely the same manner which they apply to other citizens constitutes the death knell for the First Amendment is simply absurd hyperbole. Furthermore, it indicates that John Canzano has an exaggerated sense of self-importance.
And it shows that he is a liar as well – for reporters in question have broken the law by their refusal to follow the dictates of the subpoena.
Liberty isnÂ’t license, Mr. Canzano, and the rule of law is a bitch. Deal with it.
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August 08, 2006
A state panel has disciplined a judge who ordered cheers in court for the Super Bowl-bound Seattle Seahawks before issuing a manslaughter sentence.Pierce County Superior Court Judge Beverly Grant asked about 100 people in court to say "Go Seahawks" before taking their seats on Feb. 3. Dissatisfied with the low volume of the response, she repeated the request.
That same day, Grant sentenced Steve Keo Teang to 13 1/2 years for manslaughter in the 2005 shooting death of Tino Patricelli, 28.
The Seahawks played in the Super Bowl that weekend. Patricelli's stepmother said she was offended in part because the game fell on the anniversary of her stepson's death.
Grant, who was appointed to the bench in 2003, apologized the following Monday. She eventually filed the formal conduct complaint against herself.
"Although my intentions were to defuse the courtroom situation, I realize now the inappropriateness of my opening comments," Grant told the commission.
The state Commission on Judicial Conduct gave the judge an admonishment, the panel's lowest-ranking punishment. An admonishment is a written reprimand.
At least the judge recognized teh error of her ways and had the decency to file her own misconduct complaint against herself.
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August 06, 2006
"Too many people think whenever there's any kind of dispute in our society, well let's take it to the Supreme Court and they'll decide," he said. "In a democratic republic that shouldn't be someone's first reaction. Their first reaction should be to resolve political disputes in the political process."
To my fellow educators -- this is a part of the CSPAN Classroom series, so it is available for your classroom.
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So listening to them whining is simply music to my ears.
ournalism groups on Saturday decried the jailing of a video journalist and other recent court rulings pressuring media workers to divulge information to the government.The news media becomes an information-gathering arm of law enforcement when journalists are ordered to give up confidential sources or unpublished material, said Tony Overman, president of the National Press Photographers Association.
"When news sources believe that statements or actions observed or reported by journalists find their way into the hands of police or prosecutors, those sources will be less willing - or flat-out afraid - to cooperate with the media," Overman said at a news conference.
The photographers association and the Society of Professional Journalists announced they would help pay for the legal defense of freelance video journalist Joshua Wolf.
A federal judge in San Francisco ordered Wolf jailed this week for refusing to hand over unaired video shot during a July 2005 protest in which a police car was vandalized and an officer injured.
If my wife had such photos, nobody would bat an eyelash if a court ordered her to turn them over. If I, an "independent journalist and commentator of the new media" (AKA a blogger) had such photos, the courts would surely have the authority to order me to hand them to the authorities on pain of imprisonment. Why should Josh Wolf be exempt from the duty to obey a lawful court order to produce materials relevant to an investigation -- especially after the federal courts have repeatedly and definitively determined that the First Amendment grants no exemption from such obligations?
Similarly, in the Judith Miller cas, why should she have been exempt. If she had not been a reporter for the NY Times, but rather had been Scooter Libby's third cousin four times removed, nobody would have argued that she had a right to defy a lawful court order.
Of course, tehre is this arrogant claim from professional journalist groups.
"We must stand together as journalists, scholars, educators and American citizens for freedom of the press, on behalf of our country," said Julianne Newton, a professor at the University of Oregon's journalism school.
Freedom of the press, Ms. Newton, is the right to write and publish. It is not the right to withhold evidence or obstruct justice. Indeed, just as the right to freedom of the press does not adhere only to "professional journalists" (an oxymoron if there ever was one) but to every American, so too does the obligation to produce evidence fall upon every American -- journalists included. And particularly in cases where the illicit disclosure of information to journalists is th matter under investigation, the obligation is that much more clear.
But an option does remain. Journalists could stat claiming their rights under the Fifth Amendment, implicitly acknowledging that, in many cases, they are accessories to (if not direct perpetrators of) the crimes being investigated.
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July 26, 2006
It is a travesty of justice.
I am sickened beyond words.
She was tried on only three counts of murder, so I hope they go back and nail her on the other two. Hospitalization is insufficient -- and I would argue that prison doesn't constitute justice, either. If she does not merit an IV in the death chamber, no one does.
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July 10, 2006
Well, a federal judge backed my position today.
An FBI raid on a Louisiana congressman's Capitol Hill office was legal, a federal judge ruled Monday.Chief U.S. District Judge Thomas F. Hogan said members of Congress are not above the law. He rejected requests from lawmakers and Democratic Rep. William Jefferson to return material seized by the FBI in a May 20-21 search of Jefferson's office.
In a 28-page opinion, Hogan dismissed arguments that the first-ever raid on a congressman's office violated the Constitution's protections against intimidation of elected officials.
The attempt to apply the Speech and Debate Clause to this was patently absurd. The judge dismissed it out of hand. Futhermore, he also rejected the notion that the raid breached the separation of powers.
"No one argues that the warrant executed upon Congressman Jefferson's office was not properly administered," Hogan wrote. "Therefore, there was no impermissible intrusion on the Legislature. The fact that some privileged material was incidentally captured by the search does not constitute an unlawful intrusion."
I particularly love this quote.
If there is any threat to the separation of powers here, it is not from the execution of a search warrant by one co-equal branch of government upon another, after the independent approval of the third separate, and co-equal branch. Rather, the principle of the separation of powers is threatened by the position that the Legislative Branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant. This theory would allow Members of Congress to frustrate investigations into non-legislative criminal activities for which the Speech or Debate Clause clearly provides no protection from prosecution.
Read the whole opinion here.
(H/T Captain's Quarters, Stop the ACLU, Gay Patriot, GOPBloggers)
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July 09, 2006
A 29-foot war memorial shaped like a cross should be allowed to remain on public land. A teacher should be able to emphasize references to God in the Declaration of Independence. Protesters should be permitted to approach women near the doors of an abortion clinic.These courtroom fights and dozens of others pending across the country belong to the portfolio of the ambitious Alliance Defense Fund, a socially conservative legal consortium. It spends $20 million a year seeking to protect what it regards as the place of religion -- and especially Christianity -- in public life.
Considering itself the antithesis of the American Civil Liberties Union, the Scottsdale-based organization has used money and moxie to become the leading player in a movement to tug the nation to the right by challenging decades of legal precedent. By stepping into the nation's most impassioned debates about religion in the public sphere, the group aims to bring law and society into alignment with conservative Christianity.
There are those who argue that the group's Christian orientation puts it at odds with the First Amendment. That is nonsense. While the First Amendment clearly forbids establishing a religion as the national church, there is nothing in it which prohibits the people from enacting laws which reflect their views -- even if those views grow from their faith. And there is certainly no requirement that people of faith take a backseat to secularists. That is why the Alliance Defense Fund exists.
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July 04, 2006
Under the DTA, the only court that is authorized to hear appeals brought by captured terrorists is the United States Court of Appeals for the District of Columbia (commonly known as the “DC Circuit”), which had ruled in favor of the federal government. Nevertheless, the five liberal justices of the Supreme Court (Stevens, Ginsberg, Souter, Breyer, Kennedy) concocted an explanation for why the DTA does not mean what it says, and then invalidated the military tribunals established by President Bush and the Department of Defense as part of the fight against international Islamic terrorism.
And therein lies the problem. In order to reach the decision on the merits of the case in Hamdan, the majority had to engage in what may be the most egregious case of legislating from the bench which has ever occurred in American history. In doing so, it far exceeded the reaching for unbridled power of which it accused President Bush. This raises questions as to the legitimacy of the decision, and the propriety of following it. Indeed, it once more raises tthe spectre of an imperial judiciary, an unaccountable body steping outside of its proper bounds to overrule the political branches of government in their proper constitutional spheres.
And yet, where lies the solution to this problem. The partisan divide in Washington is such that the obvious constitutional approach, impeachment of the offending quintet, is out of the question. Democrats are so eager to strike at the president for partisan advantage that they will support the warping of the proper constitutional order if they believe it will aid them in taking back Congress and the presidency. In addition, the Democrats would be loath to give President bush even one more opportunity to reshape the Supreme Court with a conservative nominee. So much for that option.
The alternative reaches back to the days of Andrew Jackson. Jackson is quoted as saying of the Chief Justice, "John Marshall has made his decision, now let him enforce it." So, too, muight the president and Congress choose to ignore a decision that is illegitmate at its root -- not because they dislike the decision, but because the Court's very act of deciding was contrary to the law and the Constitution, and therefore illegitimate and void.
The truth is that the Supreme Court’s actual authority is only as deep as the willingness of the other branches of government and the American people to “obey” its commands. At some point, we have to say, enough is enough. I think we have reached that point with Hamdan. In my opinion, the President and Congress should treat the Court’s decision respectfully but as advisory only, and abide only by those aspects of the decision that they agree are in the national interest.
To take such a step would be a momentous decision in American history. As Warshawsky points out, the Supreme Court has th closest thing to absolute power in American government because the other branches of government, and the American people as a whole, have chosen to accept its decisions as final and beyond reproach even when they appear to exceed the bounds of constitutionality. Perhaps this decision constitutes the tipping point away from that consensus of infalliblity.
The President, of course, may not act alone in this regard. Such a course of action would require the support and consent of the bulk of Congress. Perhaps teh best approach would be for Congress to grant the President the statutory powers neccessary to follow the procedures in place pre-Hamdan, and to definitively strip all but the DC Circuit of jurisdiction in such cases. Indeed, the statute must EXPLICITLY overrule Hamdan in no uncertain terms.
Such a move would be daring, given that the judiciary has never been rebuked in such a manner. And in light of the reflexive deferrence that the American people give the Supreme Court, the action would have to be done in a manner which was clear to the American people as respectful to the legitimate authority of the Court but also necessary to preserving the powers of the other co-equal branches.
For if such a course of action is not taken, the reality will be that the checks and balances put in place by the founders will have been upset byt the branch seen as least likely to become the source of tyranny which destroys our Constitutional system of government.
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June 22, 2006
The Supreme Court on Thursday dealt a blow to some longtime illegal residents, upholding the deportation of a Mexican man who lived in the United States for 20 years.By an 8-1 vote, justices said that Humberto Fernandez-Vargas, who was deported several times from the 1970s to 1981, is subject to a 1996 law Congress passed to streamline the legal process for expelling aliens who have been deported at least once before and returned.
After his last deportation in 1981, Fernandez-Vargas returned to the United States, fathered a child, started a trucking company in Utah and eventually married his longtime companion, a U.S. citizen.
But by the time he applied for legal status _ after his marriage in 2001 _ Congress had passed the Illegal Immigration and Immigrant Responsibility Act, which revoked the right to appeal to an immigration judge an order of removal.
Fernandez-Vargas was sent back to Mexico in 2004, and wanted to return to his family in the United States. He argued that the 1996 law should not be applied to him because he last entered America more than a decade before Congress passed the statute.
"Fernandez-Vargas continued to violate the law by remaining in this country day after day and ... the United States was entitled to bring that continuing violation to an end," Justice David Souter wrote in the decision.
One more sign that we can round up illegals and send them back – if our elected officials have the will to do so.
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June 18, 2006
Two months later we saw them again, on the news. The mother had murdered the children. Her name would become a household word -- Andrea Yates.
Five years to the day after Andrea Yates systematically drowned her five children in a bathtub, a new panel of potential jurors will be summoned to downtown Houston on Tuesday in preparation for her new trial.The first half of a 120-person panel will begin answering questionnaires intended to help attorneys gauge who can fairly and impartially decide whether Yates knew right from wrong when she killed her children in their Clear Lake-area home.
The remaining panelists will go through the process Wednesday, with jury selection to begin the following day. The trial, which is expected to last about a month, will begin June 26.
Few, if any, of those involved in the case might have imagined they would have to repeat this laborious task when Yates first went on trial four years ago. But everything changed when the state's sole mental health expert testified mistakenly about a TV program he claimed had been broadcast just before the drownings.
Forensic psychiatrist Park Dietz — a consultant to the Law & Order TV series — told jurors in Yates' first trial about an episode portraying a woman who drowned her children and was found not guilty by reason of insanity.
After Yates' conviction, it was discovered that no such episode existed.
As a result, an appeals court threw out Yates' capital murder conviction last year, citing concerns that Dietz's error may have swayed the jury's judgment. With recent plea negotiations going nowhere, a new trial was inevitable.
"This is a classic case that probably has to be tried," said Gerald Treece, a constitutional law professor at the South Texas College of Law. "The government's doing its job and the defense is doing its job. And there's no compromise."
I don't think the Dietz error made a big diffeence -- not with five little kids dead. But justice seems to require that the reset button be pressed and the case be submitted to a jury again. So be it.
May justice be done on behalf of her murdered children.
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June 10, 2006
With no more than three weeks left in the Supreme Court's current Term, the Justices are expected to move more rapidly in the coming weeks toward clearing the remaining decisions on their docket. There are 32 cases to be decided, but multiples on several issues indicate that all cases can be decided with 24 rulings. At the moment, there appears little likelihood that any of the cases will be put over for reargument in the next Term. The Court heard three re-arguments during this Term, but that was due to its change in membership, with Justice Samuel A. Alito, Jr., arriving at about mid-Term.Since completing oral argument with a special sitting on May 18, the Court has continued to issue opinions only one day a week. Now that the middle of June is approaching, the Court is likely to begin releasing rulings on two or more days in the remaining weeks. Next Monday, at the close of the public session, the Court's marshal may announce whether there will be another decision day in the coming week. At last once a week, the Court will issue orders granting or denying new cases; any newly granted cases will be heard in the next Term.
So we are looking for about two dozen decisions -- which to my way of thinking means that we are likely to see at least two decision days each of the next three weeks, one on Monday and one later on in the week, with the possibility of three or more during the final week. After all, the Justices (or their clerks) are drafting opinions, making revisions to meet the objections of other Justices as they seek a majority, and writing concurring and disenting opinions. A couple of the cases are seen as really big deals that are no doubt getting heightened consideration from the Justices -- and there is always a chance that some case will come down in a way that will make it a blockbuster.
What cases are left?
04-607 -- Laboratory Corp. v. Metabolite Laboratories (patentability of a naturally occuring process)04-1034 (and a companion case) -- Rapanos v. U.S. (Clean Water Act application to wetlands)
04-1170 -- Kansas v. Marsh (constitutionality of a death penalty law that
requires death if plus and minor factors are in balance) (re-argued case)04-1360 - Hudson v. Michigan (remedy for violation of knock-and-announce rule for police entering a home) (re-argued case)
04-1376 -- Fernandez-Vargas v. Gonzales (right of deported alien to return to U.S.)
04-1528 (and two companion cases) -- Randall v. Sorrell (constitutionality of state ceilings on campaign expenditures)
04-1739 -- Beard v. Banks (right of dangerous prison inmates to have access to newspapers, magazines and photographs)
04-8990 -- House v. Bell (scope of right to present new evidence to show innocence of crime)
04-9728 -- Samson v. California (authority to search parolee without a warrant or suspicion)
04-10566 (and a companion case) -- Sanchez-Llamas v. Oregon (state court duty to obey World Court ruling on arrested foreign nationals' access to consular officer)
05-18 -- Arlington School District v. Murphy (parents' right to recover fees for expert witness in disabled child education case)
05-83 -- Washington v. Recuenco (harmless error analysis for error in sentence enhancement)
05-128 -- Howard Delivery v. Zurich American Insurance (priority in bankruptcy of claim for workmen's compensation premiums)
05-184 -- Hamdan v. Rumsfeld (Supreme Court power to decide constitutionality of war-on-terrorism war crimes tribunals, and the merits of that constitutional question)
05-200 -- Empire Healthchoice v. McVeigh (private contractor right to enforce benefits for federal government employees)
05-204 (and three companion cases) -- League of United Latin American Citizens v. Perry (validity of Texas congressional redistricting plan)
05-259 -- Burlington Northern Railway v. White (proof needed to show retaliation claim under Title VII job bias law)
05-352 -- U.S. v. Gonzalez-Lopez (remedy for denial of access to counsel of choice in a criminal case)
05-409 -- Kircher v. Putnam Funds Trust (federal appeals court power to review remand of securities case to state court)
05-416 -- Woodford v. Ngo (scope of exhaustion of claims requirement under Prison Litigation Reform Act)
05-5224 and 05-5705 (two cases, perhaps one opinion) -- Davis v. Washington and Hammon v. Indiana (exclusion of evidence of "excited utterances" in 911 calls or at a crime scene, under Crawford v. Washington)
05-5966 -- Clark v. Arizona (right to make an insanity defense to disprove criminal intent)
05-7053 -- Dixon v. U.S. (burden of proof on defense of duress or coercion in criminal case)
05-8794 -- Hill v. McDonough (procedures available for challenges to lethal injection method of execution)
The two I am most interested in are Hamdan v. Rumsfeld and League of United Latin American Citizens v. Perry. The former would effectively overturn the unanimous decision rendered during WWII in Ex Parte Quirin if it were decided that military tribunals for unlawful combattants in the war on terror are unconstitutional. The latter has the potential to upset the entire congressional map here in Texas, and to make radical changes in the rules regarding congressional redistricting.
It should be a fun three weeks.
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June 08, 2006
As you may recall, I ended my post with these words.
Let us hope that this decision does not stand -- and that this judge is off the bench.
Well I don't know what is going on in the way of appeals, but the grassroots of the GOP dumped Lynn Bradshaw-Hull on primary day back in March, despite the strong backing of the Establishment Wing of the party. It was close, but for a sitting judge to be dumped by her own party is a major thing, and indicates a real lack of confidence in her competence and judicial philosophy.
Quite frankly, I was pleased.
But now it turns out that there is a move afoot to make sure that Lynn Bradshaw-Hull remains a judge -- and not only that, but gets a promotion after the people rejected her at the polls!
How is this possible? Following a gubernatorial appointment, the judicial seat n the 80th District Court is open, and the Harris County GOP has to select a new candidate for the November ballot. Judge Bradshaw-Hull wants that seat, which would be a promotion to a state court from a county court.
Today I received a letter from Lynn Bradshaw-Hull, soliciting my endorsement and bragging that 102 precinct chairs have endorsed her for the seat on the 80th District Court!
Dear Precinct Chairs,Since I wrote to you, I have received more precinct chair endorsements and have attended the Republican State Convention. Please see the attached list, which includes most of the new endorsements. There are some precinct chair endorsements who requested their names not be listed at this time. What a great time to be a "grass-roots politician"!
I am most grateful to those who have given their support. To the remaining chairs, I ask for your endorsement today and your vote at the upcoming Executive Committee meeting. As of today, that meeting has not been scheduled.
There are now approximately 418 Precinct Chairs on the rolls. 210 constitute, for statute purposes, the number required to conduct business. A simple majority of 210 voters is 106. Hopefully, more will attend this vital meeting so the, numbers may well increase.
I cite these numbers to impress how important it is that every precinct chair attend and participate in this election. If we fail to place a name on the ballot, we can be assured the Democrats will win this bench by default.
It has been an honor to serve in one of Harris County's busiest courts. I hope to continue serving the law and the people of Harris County. If you have not already done so, please return the enclosed postcard today or contact me at email@judgebradshawhullcom with your pledge of support. You may want to visit my website at www.judgebradshawhull.com. Please feel free to call me at XXX-XXX-XXXX with questions.
Sincerely yours,
Lynn Bradshaw-Hull
Frankly, I find this sickening.
Not just because I disagree with her on one judicial decision in which she ignored the constitutional principle of just compensation for private property taken by government for public use.
More because it is offensive that so many of the precinct chairs of Harris County, who are supposed to represent the grassroots of the party, are ignoring the voice of the people as expressed at the polls in March and working to promote a judge they rejected.
There are at least three other candidates out there, and possibly a fourth. Former Judge Scott Link, who chose not to run for reelection to the 80th District Court in 2002 because of serious illnesses in his family is seeking the chance to regain his former post. Former HISD School Board Member Jeff Shadwick has contacted precinct chairs seeking endorsements I've also heard from attorney and fellow precinct chair Marilyn Griffin, who is seeking support. There is also a rumor that attorney Patrick Pacheco may be interested in the nomination.
I'm not sure yet who i will support -- but I would like to urge all of my fellow precinct chairs to reconsider this rejection of the voter's will as expressed on primary day. I also encourage all Harris County Republicans to contact their precinct chairs and insist that they not support Lynn Bradshaw-Hull for the nomination to the 80th District Court.
We can do better.
OPEN TRACKBACKED TO: Mudville Gazette, Outside the Beltway, Stuck on Stupid, Conservative Cat, Bacon Bits, Samantha Burns, Adam's Blog, Is It Just Me?, Passionate America, Blue Star Chronicles, Dumb Ox, 7 Deadly Sins, Free Constitution, Uncooperative Blogger, Stop The ACLU, Wizbang, Cao's Blog, Euphoric Reality
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June 06, 2006
Which is, of course, why the Colorado Supreme Court is considering the issue in relation to a voting rights suit on behalf of Colorado felons on parole.
The state Supreme Court has agreed to consider a case that could determine whether parolees can vote in Colorado.In an announcement late Monday, the court said it would review a ruling by a Denver District Court judge who upheld a state law prohibiting Colorado's nearly 6,000 parolees from voting.
Judge Michael Martinez had concluded convicted felons haven't completed their sentences until their parole ended, therefore those on parole aren't eligible to vote.
The American Civil Liberties Union appealed. It had sued on behalf of two nonprofit groups and Michael Danielson of Fort Collins, who was ordained a pastor while in prison on drug and theft charges. Danielson, who now runs a ministry for released prisoners, said restoring parolees' voting rights would help them with the transition.
In their appeal, attorneys argued that under the state Constitution, prisoners' voting rights should be restored when they are released from prison, even if they are still on parole.
Kristen Hubbell, a spokeswoman for Attorney General John Suthers, said the state will defend the law.
Seems pretty clear to me -- you have been sentenced to 25 years in prison. you are givn parole after 15 years. Your sentence runs for another 10 years. Duh! No shit! Where is the ambiguity that the courts need to adjudicate?
Now maybe Rev. Danielson has a valid point. Maybe the restoration of voting rights would help felons reintegrate. But that is a decision to be made by the legislature, not the courts.
But if the Colorado Supreme Court DOES rule contrary to sense, reason, and the commonly understood definition of the word "sentence", there remains a solution out there for the Colorado legislature. Eliminate the possibility of parole completely by requiring that all felons serve 100% of the term to which they are sentenced.
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June 01, 2006
Attorneys for a group of immigrant children dropped from the state's medical assistance program because of budget cuts asked Maryland's highest court yesterday to restore the benefits.But an attorney for the state said that courts do not have the authority to override budget decisions made by lawmakers and that Maryland was justified in cutting a state-funded medical assistance program for recent legal immigrants.
Last year, Gov. Robert L. Ehrlich Jr. (R) decided to cut $7 million from the program that provided heath care for about 4,000 pregnant women and children classified as permanent legal residents for less than five years.
In response, attorneys for 13 sick children -- ranging in age from 2 to 17 and suffering from a variety of health problems, including asthma, West Nile virus, a crippling hip disorder and a rare blood disease -- sued the state, asking that benefits be restored.
In January, a Montgomery County Circuit Court judge granted a preliminary injunction, opening the way to reinstate the children's health-care benefits. The state, however, was granted a stay, pending appeal, from the Court of Special Appeals. The matter was then taken up by the state's highest court, the Court of Appeals of Maryland. The seven-judge panel heard arguments yesterday and will issue a written decision.
I thought that federal law required that immigrants be self-supporting, and not on the government dole, as a condition of staying here. Perhaps we need to reinstitute that requirement as part of our “comprehensive immigration reform” package. But setting that matter aside, Maryland is acting in a manner consistent with the Federal government’s decision (dating back to the Clinton administration) to exclude aliens in the country less than five years from federal medical programs such as Medicaid. This has been upheld on the federal level, and there is therefore no legitimate reason for ruling that the state action is invalid.
Now one can question the wisdom of such a budgetary decision, though I believe most Americans would support policies like this if asked. But even if one decides the legislatureÂ’s action is unwise, that does not equate with unconstitutional.
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May 17, 2006
The worst thing said in the case involving rape charges against Duke University students was not said by either the prosecutor or the defense attorneys, or even by any of the accusers or the accused. It was said by a student at North Carolina Central University, a black institution attended by the stripper who made rape charges against Duke lacrosse players.According to Newsweek, the young man at NCCU said that he wanted to see the Duke students prosecuted, "whether it happened or not. It would be justice for things that happened in the past."
Demanding that someone pay for a crime, regardless of actual guilt, is reprehensible. . If such attitudes are common sentiment in the black community, it appears there is a bigger issue than whether or not this woman was raped and who did it. Rather, there is the issue of our moving further and further away from the concept that individuals should be judged based on their character as demonstrated by their deeds.
Do we really want judgments made based upon skin color? Do we really want to bring back the bad old days?
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May 14, 2006
What is still out there to decide?
Still to be decided are cases involving President Bush's power to order military trials for suspected foreign terrorists held at the Navy prison at Guantanamo Bay, Cuba, and an appeal that will decide when death row inmates should get a new chance to prove their innocence with DNA and other evidence.In addition, the justices are delving into politics. At issue in one case is whether the court should throw out all or part of a Texas congressional map promoted by former House Majority Leader Tom DeLay, R-Texas. A free-speech case asks whether states can limit how much money is spent in political campaigns.
My gueses are as follows.
1) Tribunals for terrorists -- yes.
2) DNA evidence -- sometimes.
3) Texas remap -- acceptable.
4) Campaign spending limits -- permitted, unless they decide to oveturn recent precedents on campaign finance "reforms".
And as far as resignations/retirements go, I wouldn't expect any to be announced this year, unless there is a serious health issue that has been kept under wraps. Justices tend not to leave when there might be problems getting the new nominee confirmed before the start of the new Supreme Court term in October -- and there is no way that any justice would get confirmed in this contentious election year.
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May 11, 2006
A Los Angeles psychologist who was denied a tote bag during a Mother's Day giveaway at an Angel game is suing the baseball team, alleging sex and age discrimination.Michael Cohn's class-action claim in Orange County Superior Court alleges that thousands of males and fans under 18 were "treated unequally" at a "Family Sunday" promotion last May and are entitled to $4,000 each in damages.
The targets of the suit are the team and the Corinthian Colleges. Corinthian oversees Bryman College, which has an Anaheim campus and sponsored the event, its name printed on the bags.
Thousands of the red nylon bags were given to women 18 and older attending the Sunday Mother's Day game.
Angel officials said they had not seen the suit, filed May 4, and could not comment. But Angel spokesman Tim Mead said the team was proud of its promotions and giveaway days.
"Historically, we have tried to appeal on those special days that might be nationally noted holidays or special occasions," he said. "We have tailored programs or giveaways accordingly. In the past, we've given the moms rosesÂ…. We're trying to satisfy fans of all ages, genders and, most importantly, the baseball fans, so there's something for everybody."
I am sure about two things that will result from this piece of litigation.
First, sports teams will be less likely to have special giveaways like this one, resulting in ever dwindling attendance.
Second, Cohn will be deemed eligible to receive the team logo “pound of flesh” to be given away at next season’s “Litigious Assholes Day”.
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May 09, 2006
The day after the March 13 team party where a 27-year-old black woman claimed she was raped, Durham police told campus officers that "this will blow over," the report said. The woman initially told police she was raped by 20 white men, then said she was attacked by three, the report said.
Now given the timeline that we are aware of in this case, this does raise some questions about the accusations. It isn’t as if she said four, or even five. The accuser indicated that she was raped by twenty men – which makes for one every 90 seconds during the time she was in the house. She later settled on three. I cannot see this as doing anything other than helping the defense.
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May 03, 2006
A Philippine judge who claimed he could see into the future and admitted consulting imaginary mystic dwarfs has asked for his job back after being sacked by the country's Supreme Court."They should not have dismissed me for what I believed," Florentino Floro, a trial judge in the capital's Malabon northern suburb, told reporters after filing his appeal.
Floro was sacked last month and fined 40 000 pesos ($780) after a three-year investigation found he was incompetent, had shown bias in a case he was trying and had criticised court procedure, a ruling showed.
He told investigators that three mystic dwarfs - Armand, Luis and Angel - helped him carry out healing sessions during breaks in his chambers.
The Supreme Court said it was not within its expertise to conclude that Floro was insane, but agreed with the court clinic's finding that he was suffering from psychosis.
And if we count the dwarves, perhaps we could make Senators Boxer and Feinstein happy about the number of California judges on the court, provided Judge Florio and his companions decide to live in the land of fruits and nuts. After all, sounds like they would fit right in.
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who was ousted by people power on January 20, 2001. You can read the Philippine Supreme Court Decision penned by M. Justice Minita Viray-Chico Nazario, 75 pages, March 31, 2006 in: Judge Florentino V. Floro, Jr. A.M. No. RTJ-99-1460 OCAD - versus - JUDGE FLORENTINO V. FLORO, JR....supremecourt.gov.ph/jurisprudence/.../mar2006/A.M. No. RTJ-99-1460.htm - 525k -
Politically correct feminists claim false rape accusations are rare and account for only 2 percent of all reports. Men's rights sites point to research that places the rate as high as 41 percent. These are wildly disparate figures that cannot be reconciled.This week I stumbled over a passage in a 1996 study published by the U.S. Department of Justice: Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial.
The study documents 28 cases which, "with the exception of one young man of limited mental capacity who pleaded guilty," consist of individuals who were convicted by juries and, then, later exonerated by DNA tests.
At the time of release, they had each served an average of 7 years in prison.
The passage that riveted my attention was a quote from Peter Neufeld and Barry C. Scheck, prominent criminal attorneys and co-founders of the Innocence Project that seeks to release those falsely imprisoned.They stated, "Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have "matched" or included the primary suspect."
The authors continued, "these percentages have remained constant for 7 years, and the National Institute of Justice's informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate."
If the foregoing results can be extrapolated, then the rate of false reports is roughly between 20 (if DNA excludes an accused) to 40 percent (if inconclusive DNA is added). The relatively low estimate of 25 to 26 percent is probably accurate, especially since it is supported by other sources.
We need to consider this as we look at prominent rape cases like the one at Duke, as well as other cases that are less prominent. So many protections are placed upon the accusers, but so few are available to the accused – despite the fact that so many cases appear to be questionable. I think statistics like those above raise the possibility that we need to rethink the way in which we deal with such accusations.
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May 02, 2006
Guess not -- it appears that "extraordinary circumstances" are not htat extraordinary after all.
After months of relative quiet, senators raised the prospect yesterday of a return to bitter battles and a possible filibuster over judicial nominations, as the White House urged confirmation of two conservative nominees who have sought approval for years.Democratic leaders said they certainly would filibuster one of the nominees, Terrence W. Boyle, and might filibuster the second, Brett Kavanaugh, if Republicans refuse to call him back for a second hearing before the Senate Judiciary Committee. The partisan rhetoric was the strongest signal yet that the Senate might revisit the brinkmanship that brought the chamber to the edge of crisis a year ago, when a bipartisan group of 14 members crafted a temporary cease-fire.
The "Gang of 14" pact cleared the path for confirmation of several appellate court nominees whom Democrats had filibustered in President Bush's first term, and it doomed the chances of a few others. It also narrowed the Democrats' tactical options for opposing Bush's two appointees to the Supreme Court last year. But the Kavanaugh and Boyle nominations may test its resiliency.
Seems to me that we are back where we started -- and that the nuclear option will likely have to be invoked to overcome demand by Democrats for an extra-constitutuional super-majority to confirm judges.
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April 25, 2006
The U.S. Supreme Court refused yesterday to hear an appeal from a Utah man convicted of violating the civil rights of an interracial couple by burning a cross in their yard.Michael Brad Magleby, 33, is serving a dozen years at a federal prison in Fort Worth, Texas, according to the U.S. Bureau of Prisons.
The justices, without comment, turned away Magleby's arguments that his conduct was protected by the First Amendment and wasn't threatening.
In September 1998, Magleby and a juvenile companion made a wooden cross, doused it with gasoline and then set it afire on the lawn of a Salt Lake City couple.
An all-white jury found Magleby guilty in 1999 of conspiring to violate the civil rights of Ronald Henry, who is black, and then-wife Robyn Henry, who is white. Magleby was also convicted of interfering with the right to occupy a dwelling free of intimidation because of race; witness tampering; and creating a fake alibi.
It is really very simple – burn your cross on your property and you are fine. Burn one on someone else’s property without their permission, and you rightly go to jail.
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April 24, 2006
Execution by lethal injection may cause excruciating pain, contradicting its reputation as a humane and thus publicly acceptable way to impose the death penalty, Human Rights Watch said.Executioners fail to take the steps needed to ensure a painless death and use a drug that veterinarians have deemed too cruel for putting down dogs and cats, the group said in a report released on Monday.
However, a leading death penalty proponent dismissed the report as "blind speculation," saying there was no evidence of someone being conscious and in agony during lethal injection.
Human Rights Watch, which opposes the death penalty in all cases, issued the report amid increased scrutiny of lethal injections across America.
In other words, these are folks who are willing to do whatever it takes to get the death penalty abolished, and they are willing to make claims that are unsubstantiated to get their desired result. They also ignore the bigger question – is suffering as a part of punishment inappropriate?
UPDATE: The Supreme Court will be hearing oral arguments on a lethal injection challenge on Wednesday, April 26. Let's hope that the justices find this argument as absurd as I do.
"The point of this is not to prevent the death penalty," said Paul Enzinna, a lawyer who represents James Roane, one of three federal prisoners who were to be executed in May until Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia granted them stays of execution March 2. "I have a client who is going to be put to death and the federal government owes him, under the Constitution, an execution without pain."
No, the government does not owe this shyster's client a painless death. Constitutionally, it owes him a humane death -- and I question whether he is morally owed even that much. After all, as noted above, most of these monsters showed no such consideration for their victims.
If lethal injection is ended, I urge states to bring back the firing squad and hanging as civilized methods that have stood the test of time.
Oh, and by the way, I love this inane argument from the New York Times.
Over the years, several justices have concluded that the death penalty is in all cases unconstitutional, including Justice Harry Blackmun, who famously declared, "From this day forward, I no longer shall tinker with the machinery of death." We agree with Justice Blackmun and hope that the tinkering will someday stop and that the law of the land will recognize that the Eighth Amendment bars capital punishment completely. But even justices who think the Constitution permits capital punishment should find that lethal injections that torture prisoners in the process of killing them are unconstitutional.
Only one problem with that Eighth Amendment argument, other than the fact that it has been repeatedly rejected by virtually every court that has considered the issue. It is that the Fift Amendment, adopted at the same time as teh Eighth, makes specific reference to capital crimes and individuals being put in jeopardy of their lives for their crimes. Obviously the Eighth Amendment, read in context, cannot be seen as banning the death penalty. The Fourteenth Amendment includes similar language which again upholds the notion that the death penalty is constitutionally acceptable.
In other words, the clear language of the Constitution must be ignored to argue that there is a Constitutional prohibition on the death penalty -- so the proper place to seek its elimination is the legislatures of the fifty states and the US Congress.
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April 22, 2006
A 15-page document shown to Darla Miles of WTVD, an ABC-owned station in Durham, N.C., described how the alleged rape victim, a 27-year-old exotic dancer and mother of two, identified three lacrosse players as those who she said attacked her the night of March 13.According to the police report, the alleged victim was shown a police lineup of 46 photos individually depicting all the Duke lacrosse team members except for freshman goalie Devon Sherwood, the only black member of the team. He was excluded because the alleged victim told police her attackers were white.
After being shown the pictures in a sequence of PowerPoint slides, the document adds, the woman said she could identify the two players indicted April 17 with 100 percent certainty. She picked out Reade Seligmann as the attacker who forced her to perform oral sex and Collin Finnerty as the second man to rape and sodomize her.
She said she also could identify with 90 percent certainty the first man who raped and sodomized her. This attacker has not been arrested as of today, though District Attorney Mike Nifong said at the beginning of the week that he was looking to make a third arrest.
Think about it -- this is the equivalent of giving someone a bucket full of red golf balls and then claiming vindication when three red golf balls in a row are drawn. What else could have happened? In this case, the woman was given only members of the team to identify, and so she identified members of the team. It was a set-up!
However, an eyewitness identification expert believes the police lineup procedure was flawed because no non-lacrosse players were included.Gary Wells, president of the American Psychology-Law Society, described it as "a multiple-choice test without any wrong answers."
By including "fillers," or non-suspects, in a police lineup, an accuser has to pick past the filler to choose people who actually might have committed the crime.
"Without fillers as a control, the process has no internal credibility check," Wells said.
David Rudolf, a North Carolina defense lawyer who has been an adjunct professor at Duke and the University of North Carolina-Chapel Hill, believes the procedures may be problematic to the point of being inadmissible in court.
"I have significant doubt that this will be admitted in court," he said, "and no doubt defense will challenge it vigorously."
The issue, Rudolf explains, is that due process prohibits evidence from lineups that are unnecessarily suggestive and conducive to mistaken identity.
"When you take the only suspect group and put it in front of the victim," Rudolf says, "by definition you're suggesting it was one of the 46 people in that group."
Some have suggested that there should have been 46 different photo lineups. Others suggest that the sequential lineup was fine, but that additional individuals should have been included as a control on the process, to give the victim a chance to identify someone not at the party. You know -- sed a few white golf balls in amongst the red ones. That would have made the selections much more convincing.
If the identification is thrown out, there then arises the question of the validity of the alleged victim as a witness. And if she is excluded from testifying -- or at least from making an identification in front of the jury -- then the entire case will disintegrate due to the previously disclosed lack of DNA evidence.
This doesn't look good for anyone.
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April 21, 2006
"Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the Macintosh news sites) are doing nothing more than feeding the public's insatiable desire for information," Kleinberg wrote at the time.
This is a position which is completely alien to American notions of liberty to speak and write.
Using this argument, gossip columns, tabloids, and human interest stories are not covered under the First Amendment, given that they are merely “feeding the public’s insatiable desire for information.” The same would be true of magazines like “Popular Mechanics”, “Field and Stream”, and “Sports Illustrated”. Heck, we’d have to divide newspapers into two sections – those sections which have First Amendment coverage and those that do not.
That is not to say that there are not legitimate questions of trade secrets and industrial espionage. But what Apple is attempting to do is nothing short of building a fence around the guarantees of the Bill of Rights and posting a giant “KEEP OUT” sign directed at citizen-journalists using the very technologies Apple’s products are designed to use.
The judges need to slap the computer giant down – with extreme prejudice.
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April 20, 2006
Unfortunately, my material was out of date.
My copy of the Bill of Rights included a First Amendment that read "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
I didn't realize that there had been a revision to tack on the phrase "but the courts and the school boards of the nation can do whatever they want."
That includes viewpoint discrimination that endores one view of a controversial social issue and bans the opposing view. At least according to the Ninth Circuit.
A suburban San Diego teenager who was barred from wearing a T-shirt with anti-gay rhetoric to class lost a bid to have his high school's dress code suspended Thursday after a federal appeals court ruled the school could restrict what students wear to prevent disruptions.The ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals addressed only the narrow issue of whether the dress code should be unenforced pending the outcome of the student's lawsuit.
A majority of judges said, however, that Tyler Chase Harper was unlikely to prevail on claims that the Poway Unified School District violated his First Amendment rights to freedom of speech and religion for keeping him out of class when he wore a shirt with the message "homosexuality is shameful."
Tyler Chase Harper sued the Poway Unified School District in San Diego federal court after the principal at Poway High School refused to let the student attend class wearing a T-shirt scrawled with the message "homosexuality is shameful."
Harper was a sophomore at Poway High in 2004 when he wore the T-shirt the day after a group called the Gay-Straight Alliance held a "Day of Silence" to protest intolerance of gays and lesbians. The year before, the campus was disrupted by protests and conflicts between students over the Day of Silence.
After Harper refused to take off the T-shirt, Poway High School's principal kept Harper out of class and assigned him to do homework in a conference room for the rest of the day. He was not suspended from school.
The problem is, from my point of view, that the school had permitted (and even endorsed) the "Day of Silence". So what you had was a situation in which the marketplace of ideas was shut down, to be replaced with a Soviet-style command economy of ideas.
And what did the judges base their actions upon? Why, such important legal texts as Brokeback Mountain and The Matthew Shepard Story..
The third judge, Circuit Judge Alex Kozinski, vigorously dissented: “I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning.... The fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law. It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future.”The two-judge majority criticized Kozinski, suggesting that the majority could rely upon the motion pictures Brokeback Mountain or The Matthew Shepard Story “as evidence of the harmful effects of anti-gay harassment....”
“The majority implied that Brokeback Mountain is in, and the Bible is out. What’s really broken here is the majority’s approach to the First Amendment,” Theriot observed.
“The court has manufactured new law in the area of student speech in saying students cannot say anything that school officials deem ‘demeaning’ to another,” Theriot explained. “This is the same court that ruled that parental rights stop at the schoolhouse gate and that ‘God’ should be removed from the Pledge of Allegiance. This case is not over.”
Ultimately it comes down to this -- does speech that does no more than raise a moral objection to homosexuality constitute harassment which can (and, implicitly, should) be banned? After all, this shirt did not say "Homosexuals Are Perverts" or "God Hates Fags" -- and certainly no threat of violence. It said "Homosexuality Is Shameful" -- a moral judgement on the lifestyle. Would the school have been equally opposed to a shirt which claimed that "Racism Is Shameful" or "War Is Shameful" or "Voting Republican Is Shameful"? I think the question answers itself.
This decision must be overturned -- either permitting non-disruptive speech by students (no claim of disruption has ever been made by the school) or imposing a gag on all student speech. And given that the latter is antithetical to the First Amendment and contrary to over six decades of precedent on the matter, the answer is clearly my first suggestion -- a reiteration of the Tinker principle that students do not shed their liberties at the schoolhouse gate, and the barnett pinciple that school officials shall not prescribe what positions shall be orthodox in matters of personal belief and may not compel assent to those positions or forbid viewsexpression to the contrary.
ADDITIONAL COMMENTARY ON THIS ISSUE POSTED ABOVE IN "Responding to a Critic"
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April 19, 2006
The Supreme Court embarked on a potentially far-reaching review of the insanity defense yesterday, as the justices heard oral arguments in the case of an Arizona man, Eric Michael Clark, who was suffering from paranoid schizophrenia at the time he shot a police officer to death.At issue in the case is whether Arizona's version of the insanity defense, which requires defendants to prove with "clear and convincing" evidence that they were too mentally ill to understand that their conduct was wrong, is so narrow that it violates the constitutional right to due process of law.
The problem is that such pleas, even to the degree they are rooted in common law, are ultimately shaped and defined by the statutes passed by the legislatures of the 50 states and by Congress. A decision going against the state of Arizona has the potential of pre-empting the right of the states to determine the operation of their own courts. If there is a federal constitutional right to "not guilty by reason of insanity" rather than "guilty but insane", then the principles of federalism and states' rights will have been severely undermined.
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April 06, 2006
That practice troubled at least one shyster lawyer in his courtroom, who demanded hat the judge recuse himself for doing so.
The judge rightly refused.
And then came an unethical act by the lawyer.
n a letter dated March 17, Atlanta-based attorney Donald A. Weissman, who is representing the defendant, told Lewis he objected to beginning court with "a public declaration of national loyalty."He asked Lewis to stop the practice or recuse himself from the case.
In an order dated March 30, Lewis said reciting the pledge is not "mandatory, requested or required" for people in the courtroom, and ruled that Weissman's request had no basis.
The next day, during a hearing in open court with television cameras rolling, Weissman handed Lewis a copy of an official complaint he filed with the state Judicial Qualifications Commission.
Once the complaint was filed in court, Lewis was "ethically required" to remove himself from the case, Gwinnett Chief Magistrate Warren Davis said.
"It's always just good form to recuse," Lewis said Wednesday.
In other words, the lawyer objects to having the case presided over by a judge loyal to the United States. When the judge refused to be cowed by his arrogant demand, Weissman staged a PR stunt intended to force Judge Lewis off the case.
This complaint needs to be dismissed forthwith by the Judicial Qualifications Commission – and actions then need to be taken to disbar Weissman for this stunt.
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That practice troubled at least one shyster lawyer in his courtroom, who demanded hat the judge recuse himself for doing so.
The judge rightly refused.
And then came an unethical act by the lawyer.
[I]n a letter dated March 17, Atlanta-based attorney Donald A. Weissman, who is representing the defendant, told Lewis he objected to beginning court with "a public declaration of national loyalty."He asked Lewis to stop the practice or recuse himself from the case.
In an order dated March 30, Lewis said reciting the pledge is not "mandatory, requested or required" for people in the courtroom, and ruled that Weissman's request had no basis.
The next day, during a hearing in open court with television cameras rolling, Weissman handed Lewis a copy of an official complaint he filed with the state Judicial Qualifications Commission.
Once the complaint was filed in court, Lewis was "ethically required" to remove himself from the case, Gwinnett Chief Magistrate Warren Davis said.
"It's always just good form to recuse," Lewis said Wednesday.
In other words, the lawyer objects to having the case presided over by a judge loyal to the United States. When the judge refused to be cowed by his arrogant demand, Weissman staged a PR stunt intended to force Judge Lewis off the case.
This complaint needs to be dismissed forthwith by the Judicial Qualifications Commission – and actions then need to be taken to disbar Weissman for this stunt.
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March 28, 2006
A King County Superior Court judge Monday ruled that thousands of Washington felons should be able to vote even though they have yet to pay off court-ordered fines."It is well recognized that there is simply no rational relationship between the ability to pay and the exercise of constitutional rights," Judge Michael Spearman wrote in a ruling backing the challenge of three indigent felons.
Spearman said the state law requiring payment of all court-ordered fines and fees before a felon can vote again violates the equal-protection clause in the U.S. Constitution and the state constitution. He said "discrimination on the basis of wealth and property has long been disfavored.
Under state law, felons can petition the state to have their voting rights restored, but only after they have completed their sentences — including any probation or community service — and have paid all of their court-related costs.
State lawyers argued that the judge shouldn't make a distinction between court-ordered payments and other parts of a felon's sentence, such as jail time.
"It's rational for the Legislature to say we want you to complete everything, as opposed to start separating out sentence elements," said deputy solicitor general Jeff Even.
What’s more, the very amendment that contains the Equal Protection Clause countenances the restriction of voting rights for felons. Go here and read Section 2 of the Fourteenth Amendment. It is makes it clear that a state may restrict the franchise “for participation in rebellion, or other crime”. The law in question restricts the franchise until ALL other parts of the sentence for a crime are completed, and therefore needs no additional justification. The judge has therefore engaged in a wanton act of arrogant judicial activism.
Probably the only positive point I can make is that this ninny didn't try to rule that this constituted a poll tax -- at least not from what I can tell in this article.
The state of Washington needs to engage in three separate actions. First, it must appeal the decision. Second, it must impeach the judge. Third, it must remove him from the bench. Otherwise, rule of law is dead in Washington state.
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