Archive for August, 2007



John Walker Lindh, Treason, and Citizenship

Published December 2001

In the U.S., espionage crime is easy to understand but difficult to prove

CHIEF JUSTICE John Marshall once said that treason is the crime that most can “excite and agitate the passions of men.” The public outcry after the capture of John Walker Lindh, an American who fought with the Taliban, shows that Marshall was right. Treason remains our ultimate form of betrayal, an offense that is felt personally and intimately by every other citizen. Continue reading ‘John Walker Lindh, Treason, and Citizenship’

Terrorist Attacks and an Incapacitated Congress

Published October 2001
THERE was a time when the idea of an incapacitated Congress would have been greeted with considerable relief by most citizens. In what may be the ultimate sign of our times, a constitutional amendment has been proposed to address what was once the unthinkable: the death or incapacitation of one-fourth or more of the members of the House of Representatives. This amendment, introduced by Rep. Brian Baird (D, Wash.), cannot be easily dismissed. The Constitution does in fact have a blind spot that makes the system vulnerable to terrorism. Continue reading ‘Terrorist Attacks and an Incapacitated Congress’

Intellectual Relativism and the Al Qaida

Published October 2001

THERE is an interesting by-product of the bombings on September 11, 2001 that seems to be sweeping the country. In universities and the media, people are learning about Al-Qaida and their religious philosophy. There is a tendency in our country, particularly among academics, to treat all beliefs as worthy of equal merit. It is a type of intellectual relativism that ignores the obvious in favor of the inquiry. Continue reading ‘Intellectual Relativism and the Al Qaida’

The Boxer Rebellion and the War on Terror

Published September 2001

PERHAPS one of the most frightening aspects of our current crisis is the uncertainty of how to fight an enemy, which is largely unseen and incomprehensible. Americans have been shocked by the raw hatred that would sustain such attacks on innocent persons and the support of such terrorists by other nations. What is most frightening is the idea that we have never had to face such fanatical individuals and that we are facing the prospect of perpetual war. It is here that history can offer a degree of knowledge and perhaps a bit of comfort. While we often forget our past, we would be wise to consider an anniversary this month and a prior war against religious-based terrorists. Continue reading ‘The Boxer Rebellion and the War on Terror’

Condit and the Chandra Levy Scandal

Published August 2001

A FEW years ago, the public was caught up in the debate over which stamp they preferred: the fat Elvis or the thin Elvis. This great public debate came to mind after Rep. Gary Condit finally came forward and spoke for the first time about his involvement with missing intern Chandra Levy. We can now decide which we prefer: the silent Condit or the speaking Condit. I, for one, preferred the former. Continue reading ‘Condit and the Chandra Levy Scandal’

Congressional Perks and Working Out the Body Politic

Published August 2001

MEMBERS of Congress have rallied around a cause that has united outraged representatives from both parties. The passion was evident in a recent hearing before the House Appropriations Committee, where Rep. Anne Northup (R-Ky.) informed a shocked committee of members that ”the fact is we have a very inferior gym.”

Northup was referring to the facility for members and their spouses that is something more than a ”gym.” The House members enjoy a public-financed athletic club with a gymnasium, Olympic-size pool, work-out rooms and other amenities. Continue reading ‘Congressional Perks and Working Out the Body Politic’

Nepotism and Congress: Don’t Let Jobs Grow on Family Trees

Published 7/30/03

When he became governor of Alaska, Frank Murkowski had to decide who should finish the two years remaining on his U.S. Senate term. After a supposedly exhaustive search, Murkowski appointed his daughter, Lisa Murkowski.

Although the first U.S. senator appointed by a father, Lisa Murkowski is hardly unique among the children and spouses of politicians. For example, Vice President Cheney’s daughter, Elizabeth Cheney, and his son-in-law, Philip Perry, were appointed by President Bush to high-level positions: deputy assistant secretary of State and chief counsel for the Office of Management and Budget, respectively. Continue reading ‘Nepotism and Congress: Don’t Let Jobs Grow on Family Trees’

Lee Malvo and the Jury Decision

With the start of the trial of accused Washington, D.C., sniper Lee Malvo, the public is being introduced to America’s most troubled teen. Unlike his father figure, John Muhammad, who was found guilty Monday of murder in one of 10 sniper killings, Malvo is not denying his role in the murders. Instead, his attorneys are developing an insanity defense that bears striking resemblance to other cases involving infamous criminal duos. Indeed, his insanity plea may be more of a tactical device than a legal defense: The lawyers for Malvo, now 18, may be using the claim to convert the guilt phase into a trial over the proper punishment of a boy-killer. Continue reading ‘Lee Malvo and the Jury Decision’

Michael Vick and State Charges

I have received a fair number of emails on Michael Vick’s plea, which should come as a surprise to no one. This is the type of crime that puts a defendant instantly on the bad side of any jury. The most that a defense attorney could hope for is a hung jury in most such cases.

I have no sympathy for Vick who not only engaged in a cruel and medieval form of entertainment, but he threw away a career that millions of kids can only dream of. Continue reading ‘Michael Vick and State Charges’

Body Armor: U.S. Soldiers Lack Best Protective Gear

Published 12/17/2003

I recently received a note from one of the few husbands who knows just what his wife wants as a holiday gift. The Army sergeant (who asked to remain anonymous) e-mailed me from Iraq asking my help in finding him a store to buy body armor for his wife.

Both the sergeant and his wife are serving in Iraq, and both have seen action. But, like thousands of U.S. soldiers, his wife was not given the vital ceramic plates for her Kevlar Interceptor vest to protect her from bullet wounds. Instead, he said, she had to scavenge to find plates left behind by Iraqi soldiers — plates of inferior quality that do not properly fit her vest. Continue reading ‘Body Armor: U.S. Soldiers Lack Best Protective Gear’

Non-profits’ Executives Avoid Scrutiny, Valid Reforms

Published 2/11/2004

At a time when efforts to reform the corporate world are getting all of the attention, there is another group of chief executives who remain insulated from the effects of scandals at Tyco, WorldCom and the like. They are America’s not-for-profit profiteers: the executives who cash in at universities, foundations and other tax-exempt organizations. Continue reading ‘Non-profits’ Executives Avoid Scrutiny, Valid Reforms’

Attorney-Client Confidentiality: Valued Bond Between Client, Lawyer Eroding

Published 3/16/2004

While lawyers often are valued for such canine-like attributes as aggression, persistence and even viciousness, loyalty is their most essential attribute. With confidentiality, it represents a type of legal Hippocratic oath: that we will do no harm to our clients.
Two disturbing trends that reduce confidentiality guarantees have surfaced recently: a rise in the number of exceptions to attorney-client confidentiality and an increase in lawyers discussing cases at the expense of their former clients. Continue reading ‘Attorney-Client Confidentiality: Valued Bond Between Client, Lawyer Eroding’

Bush’s Stem-cell Politics Leaves Dad to Wither

Published 5/17/2004

My father is dying from an American political disease. In a nation divided evenly between red and blue states, governmental policies have long been distorted by the gravitational pull of the extremes of the two parties.

For President Bush, policies often have been shaped by his fundamentalist and conservative religious base. While controversial, many of these policies are largely symbolic, such as his unheeded call for an amendment to ban gay marriage. The president’s policy opposing stem-cell research, however, presents a far more deadly concession — one that might secure votes, but at a prohibitive cost of human life. Continue reading ‘Bush’s Stem-cell Politics Leaves Dad to Wither’

372nd Unit Deserves Better Homecoming

Published 8/8/2004

The soldiers of the 372nd Military Police Company recently came home from Iraq — and some are pretty angry. Made infamous by the abuses at Abu Ghraib prison, they have been caricatured as a bunch of thuggish yahoos from the hills of West Virginia and Maryland. Now their entire unit may be deactivated.
They seem, however, unwilling to go quietly, taking their infamy into self-imposed exile. Continue reading ’372nd Unit Deserves Better Homecoming’

Polygamy Laws Expose Our Own Hypocrisy

Published 10/3/2004

Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.
If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.

For polygamists, it is simply a matter of unequal treatment under the law. Continue reading ‘Polygamy Laws Expose Our Own Hypocrisy’

Arnold Schwarzenegger and the Constitutional Ban on Foreign Born Presidents

Published 11/22/2004

It is the most glaring contradiction in our Constitution: a nation of immigrants that excludes anyone who is not born in the United States from becoming president. While long criticized, it went largely unchallenged until Arnold Schwarzenegger became governor of California and his fans discovered that he couldn’t become “The Presinator” because of his Austrian birth.
It is hardly the stuff that inspiring constitutional movements are made of, but, then again, one takes what one can get when it comes to constitutional reform. Continue reading ‘Arnold Schwarzenegger and the Constitutional Ban on Foreign Born Presidents’

It’s All Legal in the Bizarre World of Congressional Ethics

published 12/27/2004

Orientation week can be a daunting and confusing process for any freshman, particularly for the nine new senators and 38 new House members of the 109th Congress. During the recent orientation week on Capitol Hill, one freshman, Representative-elect Al Green, D-Texas, noted “as a neophyte trying to find his way, you need as many people to direct you as you can.”
Indeed, that education is about to begin in earnest, starting with the ethics book included in their orientation kits. On their face, the ethics rules would seem to bar any self-dealing or profit-taking by members. In reality, they actually legalize conduct that would be viewed as grossly unethical or corrupt in the other government branches. For Green and the other neophytes, therefore, the following are four easy lessons on how to earn millions on a government salary. Continue reading ‘It’s All Legal in the Bizarre World of Congressional Ethics’

The Lawn Mower Guy and Other Legal Myths in the Tort Reform Movement

Published 1/30/2005

By Jonathan Turley
Have you heard about the guy who injured himself while using his lawn mower as a hedge clipper, and then won $500,000 in a lawsuit against the lawn mower company? How about the woman who threw a soft drink at her boyfriend, slipped on the wet floor, and then won $100,000 in a lawsuit against the restaurant? These are only two of the common examples of lawsuit abuses that are fueling the call for “litigation reform.” They are also completely untrue — part of a growing collection of legal mythologies that are appearing widely in the national media. Continue reading ‘The Lawn Mower Guy and Other Legal Myths in the Tort Reform Movement’

The Other Jonathan Turley: How My Identity was Stolen and I Brought Two Luxury Cars

Published 2/21/2005

For the past month, a detective has been trying to arrest me in New York. Most people in such a position would be highly distressed, but I am frankly delighted. Perhaps an arrest will bring an end to a criminal life that began for me in December, when I started buying luxury cars for friends in the Bronx.
Of course, when I first learned that I was on the lam, I was more than a little surprised because I was in Washington at the time, driving a beat-up green Volvo wagon. I had become the latest victim of identity theft, joining tens of millions of other victims across the country. Continue reading ‘The Other Jonathan Turley: How My Identity was Stolen and I Brought Two Luxury Cars’

Terri Schiavo and How Temptation Can Top the Constitution

Pubished 3/22/2005
By Jonathan Turley
During the drafting of the Constitution, the Framers often spoke of the interests of the “body politic” — a term that took on a new and chilling meaning this week in the fight over Terri Schiavo. Laying in a persistent vegetative state in Florida, Schiavo has literally become the body politic — a transcendent symbol claimed by rivals in an ongoing cultural war. Ironically, as each side has struggled to embrace her cause, she has become less real, more personification than person. Continue reading ‘Terri Schiavo and How Temptation Can Top the Constitution’

Mr. Frist Goes to Washington — and the Art of the Filibuster

Published 4/6/2005

If, like me, you hate sequels, stay away from the Senate floor this month. Senate Majority Leader Bill Frist, R-Tenn., may soon try to change one of the longest congressional traditions in the nation’s history — the 200-year-old right to filibuster. However, unlike the original movie, Mr. Smith Goes to Washington, this modern sequel has the makings of neither good viewing nor good politics.
For many Americans, Frank Capra’s 1939 classic work was their first introduction to the filibuster and contains perhaps the quintessential American film scene. Standing alone on the floor of the U.S. Senate, young Sen. Jefferson Smith refuses to yield to the corrupt plans of his powerful colleagues. Against all odds, he invokes the filibuster — the right of a single person to hold the floor against the world — as long as he can continue to stand and to speak. Continue reading ‘Mr. Frist Goes to Washington — and the Art of the Filibuster’

The Supreme Court and the Possibility of a Hard Right Turn

Published 6/26/2005

It is a true sign of desperate times when liberals are fretting over of the expected retirement of Chief Justice William Rehnquist. It is not that they have come to love Rehnquist — once called the “Lone Ranger” for his strident conservative dissents on the Warren Court. Yet, liberals have learned that there are actually judges to the right of Rehnquist, a number of whom are on the short list to replace him. It is like Luke Skywalker celebrating the demise of the Emperor only to learn that he was considered the mild-mannered runt of the litter. Continue reading ‘The Supreme Court and the Possibility of a Hard Right Turn’

Candidates for the Supreme Court: Judging the Short List

Published 6/26/05

With the anticipated retirement of Chief Justice William Rehnquist, speculation is rife on the possible nominees on President Bush’s short list. Fortunately for Supreme Court handicappers, Bush has only a couple of simple known criteria. First, he wants ideological consistency. Second, he wants longevity. Short of nominating an embryonic stem cell, the White House would prefer a baby boomer with long-term potential. A few candidates have emerged as leading short-listers. For simplicity, each will be rated below based on the gold standard for conservative purity: Karl Rove. On the Rove-o-meter, five Roves represents the purest conservatism while one would represent marginal conservatism. Continue reading ‘Candidates for the Supreme Court: Judging the Short List’

John Roberts: The Before and The After

Published 8/30/2005

Imagine dating someone for a couple of weeks before you have to decide whether to make a lifetime commitment. That is precisely the situation of senators in confirming a Supreme Court justice. Because a confirmation is rarely a case of love at first sight, it usually comes down to the testimony of the nominee, who is invariably told by White House chaperones to say little and smile a lot.
John Roberts may be the ultimate example of the judicial blind date. Continue reading ‘John Roberts: The Before and The After’

What Qualifies One for the Supreme Court?

Published 10/5/2005

In his announcement of the nomination of White House counsel Harriet Miers to be an associate justice of the Supreme Court, President Bush concluded with a simple and direct statement to Congress: “I ask the Senate to review her qualifications thoroughly and fairly and to vote on her nomination promptly.”
On its face, it seems straightforward enough. Like the president, most senators speak of “qualifications” as if the term is self-defining or obvious. Yet, after more than 200 years, neither the Senate nor law professors have agreed on what constitutes a “qualification” for the nation’s highest court. Indeed, looking over the past 157 nominations (and 42 unsuccessful nominations since 1789), there is little consensus on what constitutes a truly qualified person to sit on the court. Continue reading ‘What Qualifies One for the Supreme Court?’

The Plame Scandal and a Story In Search of a Redeeming Character

Published 10/31/2005
The indictment of I. Lewis “Scooter” Libby, former chief of staff to Vice President Cheney, has given the Valerie Plame scandal the pre-requisite indictee, a face for this ongoing drama. What is more troubling, however, has been the absence of a heroic or even positive figure.
On its face, this affair had all of the elements of a blockbuster political drama. An embattled president is accused of lying to the American people to take the country to war. Shadowy political operatives launch a campaign to punish the man who uncovered the lie by destroying the career of his wife, a covert CIA operative. Indeed, even the name — the Valerie Plame affair — carried a certain sexy and intriguing appeal. By this point, Washington should be crawling with book and movie agents except for the one missing element: a single redeeming character. Continue reading ‘The Plame Scandal and a Story In Search of a Redeeming Character’

Role Models for Roberts: Chief Justices and the Legacies

Published 9/11/2005

With the formal end of the Rehnquist Court, John Roberts will by definition hearken a new era on the Supreme Court if confirmed as the 17th chief justice of the United States. Before there is a “Roberts Court,” however, there must first be a clearly defined Chief Justice Roberts. With the start of his Senate hearings today, Roberts will begin the transformation from a circuit judge to chief justice. In doing so, he might want to consider the models left by 16 great and not-so-great predecessors. Continue reading ‘Role Models for Roberts: Chief Justices and the Legacies’

Parental Rights and Abortion

Published 12/5/2005

Last week, the U.S. Supreme Court heard arguments in Ayotte v. Planned Parenthood, a case concerning the right of parents to be notified on abortions given to minor children. The case is seen as a bellwether on the court’s shifting majority on abortion as well as the future of parental notice and consent laws in 43 states.
Cases like Ayotte are produced by a collision of two powerful interests: The right of parents to participate in major medical and moral decisions affecting their minor children vs. the right of children to have abortions. Continue reading ‘Parental Rights and Abortion’

Bush and Domestic Spying: A Threat to Our Principles

Published 12/21/2005

This week, President Bush is struggling to deal with rising accusations that he committed federal crimes in ordering the eavesdropping on hundreds, if not thousands, of people without court orders. It is a scandal that raises troubling questions not just for the presidency but also for the president.

In some ways, it was inevitable that we would find ourselves at this historic confrontation. Bush has long viewed the law as some malleable means to achieve particular ends, rather than the ends itself. In this sense, there is an eerie similarity between the views of Bush and two of his predecessors: Richard Nixon and Bill Clinton. Continue reading ‘Bush and Domestic Spying: A Threat to Our Principles’

Troubling Times for a Troubling Nominee: Samuel Alito

Published 1/9/06

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito’s cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.

In my years as an academic and a litigator, I have rarely seen the equal of Alito’s bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe. Continue reading ‘Troubling Times for a Troubling Nominee: Samuel Alito’

Lap Dances, Wills, and You — The Legal Legacy of Anna Nicole Smith

Posted 2/27/2006

It is a classic American tale: Boy meets stripper, boy marries stripper, stripper goes to court to get the dead boy’s estate. Of course, in this case, the “boy” was 90-year-old oil magnate Howard Marshall and the stripper is the buxom reality-TV star Anna Nicole Smith. The court is none other than the U.S. Supreme Court, where Anna’s appearance Tuesday will draw more coverage than it would if Chief Justice John Marshall returned from the dead for the argument.
In the case of Marshall v. Marshall (Smith’s legal name is Vickie Lynn Marshall), the characters are more interesting than are the issues. Continue reading ‘Lap Dances, Wills, and You — The Legal Legacy of Anna Nicole Smith’

How to End the Gay Marriage Debate: Civil Unions and You

Published 4/2/2006

With mid-term elections approaching, politicians are once again returning to one of their favorite themes: protecting the sanctity of marriage. When same-sex marriage is raised, citizens quickly forget about rampant corruption in Congress, towering budget deficits, or even the Iraq war. Not surprisingly, therefore, a constitutional amendment has been cited as a legislative priority by both President Bush and Republican leadership. The message is clear: What politics and religion have joined, let no one pull apart.
The fact is that the same-sex marriage fight is one that advocates on both sides would hate to end. Money is pouring in, membership rolls are expanding, and advocates have an issue that borders on obsession for many Americans. Continue reading ‘How to End the Gay Marriage Debate: Civil Unions and You’

Down to the Fourth Estate: The Failure of the American System to Protect Liberty

Published 5/16/2006

This month, Congress is faced with a most inconvenient crime. With the recent disclosure of a massive secret database program run by the National Security Agency involving tens of millions of innocent Americans, members are confronted with a second intelligence operation that not only lacks congressional authorization but also appears patently unlawful. In December, the public learned that the NSA was engaging in warrantless domestic surveillance of overseas communications — an operation many experts believe is a clear federal crime ordered by the president more than 30 times.
What is most striking about these programs is that they were revealed not by members of Congress but by members of the Fourth Estate: Journalists who confronted Congress with evidence of potentially illegal conduct by this president that was known to various congressional leaders.

In response, President Bush has demanded to know who will rid him of these meddlesome whistle-blowers, and various devout members have rushed forth with cudgels and codes in hand.

Now, it appears Congress is finally acting — not to end alleged criminal acts by the administration, mind you, but to stop the public from learning about such alleged crimes in the future. Members are seeking to give the president the authority to continue to engage in warrantless domestic surveillance as they call for whistle-blowers to be routed out. They also want new penalties to deter both reporters and their sources. Continue reading ‘Down to the Fourth Estate: The Failure of the American System to Protect Liberty’

The Insanity Defense and the Future of Faith-Based Killings

Published 5/29/2006

In the National Gallery of Art in Washington hangs a cherished Rembrandt titled Abraham’s Sacrifice.
It is an etching of Abraham about to slay his son, Isaac, upon the orders of God, to show his faith. The scene from Genesis 22:1-12 is repeated in stained glass windows, paintings and other displays worldwide. It is also a scene being repeated in real life by demented individuals who believe that they have been given divine instructions to slay their loved ones.

In the past few months, the nation has found itself again in the middle of one of the law’s greatest quagmires: how to define insanity, and when it should be a defense. Continue reading ‘The Insanity Defense and the Future of Faith-Based Killings’

The Roberts Court: Seeing is Believing

Published 7/5/2006

With the end of the first term of the Roberts court, some liberals seemed to give a sigh of relief that the new conservative majority had not returned the nation to an antebellum legal system. But on closer inspection, the past term was no cause for hope, let alone celebration, for uneasy liberals, moderates or libertarians.
To the contrary, the only comfort these groups should take from the past term is that it will likely prove far better than the coming term when the court is poised to hear cases involving affirmative action, abortion, environmental law and other hot-button issues. Continue reading ‘The Roberts Court: Seeing is Believing’

A War With All Flags and No Faces: Cracking Down on War Protesters

Published 8/16/2006

Dan Frazier seems an unlikely sort to spark a national firestorm. The soft-spoken former journalist runs a left-leaning website in Flagstaff, Ariz., offering political T-shirts and other items with such slogans as “Be Nice to America or We’ll Bring Democracy to Your Country.” It was one T-shirt, however, that made Frazier the Thomas Paine of the ready-to-wear rebel set. Last year, Frazier produced a T-shirt that read “Bush Lied … They Died.” He then listed the names of the fallen in Iraq: at the time 1,700 names (more than 800 short of the latest total).
One of those names belonged to Marine Cpl. Scott Vincent, who was killed in April 2004 by a suicide bomber. When his mother, Judy Vincent, saw her son’s name on the T-shirt, she was outraged and demanded legislative action in her state of Oklahoma. Various state legislators promptly made it a crime to use a soldier’s name or likeness for commercial gain without consent. Louisiana followed suit, and other states are considering such bills. Now, U.S. Rep. Dan Boren, D-Okla., has introduced a federal bill that would prohibit the use of the name or image of any current or former member of the military without permission.

The federal and state legislation raises serious constitutional questions.

In direct conflict with the First Amendment, the federal law would effectively prevent war critics from personalizing the true costs of the war. It is far more powerful for Frazier to say “Bush Lied … They Died” than the more common “Bush Lied … People Died.” It is precisely the type of personalization that war advocates have tried to prevent. Continue reading ‘A War With All Flags and No Faces: Cracking Down on War Protesters’

The Page Scandal and a Congress That Simply Can’t Resist

Pubished 10/18/2006
In its waning months, the 109th Congress has finally achieved a status in politics that the 1919 Black Sox achieved in sports: It is a symbol of utter corruption. Over the past two years, the congressional scandals have traversed the universe from the gross to the grandiose to the grotesque: visits from call girls, gifts of Rolls Royces and fancy commodes, sweetheart deals for contractors, high-paying lobbyist jobs for underachieving children, free vacations for members and their families.
Yet, if the young boy saying “say it ain’t so, Joe” to Shoeless Joe Jackson perfectly summed up the betrayal of the 1919 World Series, the young male pages pursued by former GOP congressman Mark Foley of Florida perfectly summed up the betrayal of the 109th Congress. The public clearly suspects that, in dealing with Foley, House leaders were more concerned with protecting a House seat than a House page. In a CNN poll, 75% of Americans say the Republicans failed to act responsibly, and 52% believe a coverup was attempted.

If the page scandal captures the raw depravity that is the 109th Congress, the proposed solution captures its raw audacity. Faced with the abuse of children, some lawmakers have called for the removal of the children. First voiced by Rep. Ray LaHood, R-Ill., some members have indicated that they would terminate the page service after almost 200 years of tradition. As LaHood explained, “We should not subject young men and women to this kind of activity, this kind of vulnerability.” When asked whether he was suggesting that his colleagues cannot be trusted with children, he responded, “Well, that’s pretty obvious.” Continue reading ‘The Page Scandal and a Congress That Simply Can’t Resist’

Cleaning Up Congress: Ethics and Reform

Published 11/13/2006

In her first statement after the Democratic takeover of the House, the presumptive new speaker, Nancy Pelosi of California, pledged that her party would create “the most honest, the most open and the most ethical Congress in history.”
History, however, should give citizens pause before they celebrate the dawn of a new day. Pelosi’s promise is eerily similar to the vows of her two predecessors. Continue reading ‘Cleaning Up Congress: Ethics and Reform’

Afffirmative Action and the Use of Race in Government Regulations

Published 12/5/2006

On Monday, the Supreme Court once again ventured into the quagmire of affirmative action. In two cases, the court will decide whether it is permissible to use race as a criteria in the selection of students on the elementary or high school levels — three years after the court barely sustained the use of such policies on the university level.
Even after many decades, affirmative action remains one of the most contentious issues in our society. Yet, like abortion, there appears to be less, not more, true dialogue. Many people who are uncomfortable with these programs remain silent in fear that their concerns will be misconstrued or mischaracterized. Continue reading ‘Afffirmative Action and the Use of Race in Government Regulations’

Oaths and the Quran

Published 1/3/07
A HISTORY

The historical and legal basis for oaths is often misunderstood. As with many of our legal traditions, the role of the legislative oath was inherited from England, where its original purpose was anything but inspiring. In the 16th century, the crown used legislative oaths to disqualify any member who did not recognize the king as both the spiritual and temporal sovereign – an effective ban on any faithful Catholic serving in Parliament. Continue reading ‘Oaths and the Quran’

The Truth About The Oath — Keith Ellison and the Quran

Published 1/3/2007

By Jonathan Turley
The newest member of the Minnesota delegation, Keith Ellison, would appear to be the very model of a god-fearing congressman whom conservatives have longed for. Yet Ellison has been denounced as a constitutional blasphemer after discussing his upcoming oath of office. The problem was not with Ellison’s oath, but with his god — Ellison is Muslim (our nation’s first in Congress) and intends to use the Quran today to pledge to serve faithfully before Allah.
Judging from the outcry, one would think that Ellison wanted to use the January edition of Penthouse. America’s permanently angry class of religious zealots has organized protests. Some have called for a law requiring that all members use the Bible — regardless of whether they believe a single word in it. They do not expect Ellison’s conversion, they just want him (and presumably the two new Buddhist members) to pay tribute to their faith system. Continue reading ‘The Truth About The Oath — Keith Ellison and the Quran’

Can Congress Stop This War? You Bet.

Published 1/17/2007
Over the next week, Congress will vote on a non-binding resolution denouncing President Bush’s decision to send more troops to Iraq. Many people have already noted that with thousands of dead soldiers and hundreds of billions of dollars lost, Congress might be able to manage more than a legislative “Dear John” letter. Yet, if you listen to the president and some Democratic leaders, Congress can do little to stop the hemorrhaging of lives and treasure.
The truth is that there is a lot that Congress could do. Among other things, it could stop the war. But neither the president nor many Democrats want to publicly entertain such a possibility. Indeed, the president has insisted, again, that he alone makes such decisions. When asked about what Congress can do if it opposes his build-up, Bush was dismissive and said, “Frankly, that’s not their responsibility.” Of course, the president acknowledged, “They could try to stop me from doing it … but I made my decision, and we’re going forward.”

Democratic leaders seem to be encouraging the same view of an unchecked executive. The new chairman of the Senate Foreign Relations Committee, Sen. Joe Biden, D-Del., and other members suggested last week that it may be unconstitutional for Congress to cut funds for an escalation. Continue reading ‘Can Congress Stop This War? You Bet.’

List of Prior Testimony

United States Senate, Committee on the Judiciary, “Ending Taxation Without Representation: The Constitutionality of S. 1257,” May 23, 2007. Continue reading ‘List of Prior Testimony’

War and Presidents: Military History Magazine Cover Story July 2007

PRESIDENTS AT WAR

The President sat in the Oval Office and staring intently at his Secretary of State. It would fall to him to either order the United States to war or to consult with Congress. He had already stated his intention to fight the enemy anywhere in the world to protect the nation at home. It was time to make good on his promise: “We’ve got to stop the sons of bitches, no matter what, and that’s all there is to it.”

It is a scene that could have been taken easily from the first term of President George W. Bush and his commencement of military action in Afghanistan and Iraq. However, it was not Islamic terrorists but communists that was the scourge in June 1950 and the president was Harry S. Truman. He was committed to the Truman Doctrine to oppose communist expansion around the world and 135,000 communists were on the march across the 38th parallel. It was a decision that would unleash the Korean War. Within days of Truman’s statement, the Army 4th Infantry Division would engage the North Koreans at Osan, suffering heavy losses – all without congressional notice, let alone authorization. Continue reading ‘War and Presidents: Military History Magazine Cover Story July 2007′

Testimony on Kelo and the Supreme Court’s Eminent Domain Ruling in Kelo

STATEMENT OF JONATHAN TURLEY, PROFESSOR OF PUBLIC
INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY
LAW SCHOOL
SEPTEMBER 7, 2005

House Agriculture Committee

Mr. TURLEY. Thank you very much, Mr. Chairman. It is an honor
to appear here before the members of this committee.
As we all know, there is a firestorm of controversy of the Su-
preme Court case, which I also believe was wrongly decided, even
though I have argued in the past, in academic pieces, for the ex-
pansion of public use. In some context, I thought this decision was
facially wrong, and I don’t see how the Court came to its conclu-
sion, which required it to negate portions of the takings clause, to
effectively make them nonexistent. The clause makes a reference to
public use. We interpret constitutional amendments so that words
mean something. And in this case, the public use reference didn’t
even amount to a speed bump for the Court on its way of effectively
negating the protections of the clause. Continue reading ‘Testimony on Kelo and the Supreme Court’s Eminent Domain Ruling in Kelo’

Clinton Impeachment Testimony: House Judiciary Committee

Testimony of Jonathan Turley
Shapiro Professor of Public Interest Law, George Washington University Law School

House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998

INTRODUCTION

Summary: My name is Jonathan Turley. I am a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law. Although I have taught constitutional criminal procedure and lectured on the Madisonian Democracy for years, my views have been most influenced by my litigation in past cases dealing with the separation of powers doctrine, executive privilege, and Article II authority. While the current debate over the impeachment standard can appear arcane and theoretical, these standards have concrete expression in cases involving the lives of average citizens and the conduct of Executive Branch officials. When Congress decides that certain criminal conduct does not rise to the level of impeachable offenses, it is defining a permissible parameter for future presidential conduct. Executive power will fill the space created by any decision of this body………………………………………Page 6

METHODOLOGY

Summary: While I greatly respect the academics on the other side of this debate, I do not believe that there is a basis to exclude the alleged criminal conduct from potential articles of impeachment on any definitional, historical or policy basis. The literature in this area is rich with different theories of constitutional interpretation. There is a danger when these theories are super-imposed on a sparse historical record to advance a claim of clear original intent or restrictive hidden meaning. As will be shown, the meaning of “high crimes and misdemeanors” is inextricably linked to the structural function of the House. Impeachment was created as a process by which the public could address serious questions of legitimacy in the Chief Executive and other officers. It was a process by which illegitimacy could be remedied by removal and legitimacy could be redeemed by acquittal. This is why criminal acts committed in office, regardless of their motivation or subject matter, should ordinarily be submitted to the Senate……………Page 9 Continue reading ‘Clinton Impeachment Testimony: House Judiciary Committee’

Senate Testimony: National Security and Civil Liberties

STATEMENT OF
PROFESSOR JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
WASHINGTON, D.C.

BEFORE
THE SENATE JUDICIARY COMMITTEE
SUBCOMMITTEE ON TERRORISM, TECHNOLOGY, AND HOMELAND
SECURITY

“A REVIEW OF THE TOOLS TO FIGHT TERRORISM ACT”

SEPTEMBER 13, 2004

Thank you, Mr. Chairman, it is an honor to appear before the Subcommittee
and to discuss the provisions of the Tools to Fight Terrorism Act of 2004. Continue reading ‘Senate Testimony: National Security and Civil Liberties’

Bobby Unser and the Alleged Abuses of Park Rangers: Testimony in the House of Representatives

TESTIMONY OF PROFESSOR JONATHAN TURLEY
PROFESSOR OF LAW
DIRECTOR OF THE ENVIRONMENTAL LAW ADVOCACY CENTER
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
WASHINGTON, D.C.
BEFORE THE
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATM LAW
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES

May 7, 1998

Mr. Chairman, members of the Subcommittee, I appreciate the
opportunity to speak with you today. The subject of this hearing
is enormously important to many individuals, communities and
agencies in this country. I will not be able to do justice to the
myriad of issues raised by this hearing in my short appearance
before the Subcommittee. I was invited to appear before this
Subcommittee only two days ago while out of town on litigation.
Nonetheless, I felt strongly that some issues should be raised
during the hearing, albeit in an abbreviated form. Mr. Chairman,
with the permission of the Subcommittee, I would like to submit
my complete written statement into the record and to submit a
supplemental statement at a later date. Continue reading ‘Bobby Unser and the Alleged Abuses of Park Rangers: Testimony in the House of Representatives’

Testimony in Senate Intelligence Committee on Abuses By Naval Intelligence and the Daniel King Case

PREPARED STATEMENT OF
JONATHAN TURLEY
LEAD DEFENSE COUNSELFOR PETTY OFFICER DANIEL M. KING

SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

Thank you, Mr. Chairman.
Mr. Chairman, members of the Subcommittee, my name is Jonathan Turley. I currently represent Petty Officer Daniel M. King and I served as the lead defense counsel for Petty Officer King during his prosecution for alleged espionage. I am also a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law.

I greatly appreciate your invitation to discuss the King case. As a defense attorney and an academic in the national security field,1 I have never encountered a more troubling case. My co-counsel and I were formally invited to testify late last week and have attempted to assemble a comprehensive presentation of the facts in this case over the weekend. Each of our statements today will isolate different aspects of these facts. Like my colleagues, I wish to associate myself with their formal statements as part of our unified presentation. After discussing the charges and basic evidence in the case, my comments will focus on the areas previously identified by the Committee as the subject of today’s hearing. LT Matthew Freedus will then offer a detailed presentation of the facts in this case and the course of the investigation and prosecution. LT Robert Bailey will then detail the specific violations and abuses that have been identified and made part of the record. We understand that your time is limited and, with the consent of the Committee, we have submitted three formal statements. I apologize for the length but we find ourselves in the same position as Blaise Pascal when he apologized for the length of a letter because he lacked the time to write it shorter.2 Continue reading ‘Testimony in Senate Intelligence Committee on Abuses By Naval Intelligence and the Daniel King Case’

Press Freedom and the War on Terrorism: Testimony in the House Intelligence Committee

Statement for the Record
Jonathan Turley
J.B. and Maurice C. Shapiro Professor of Public Interest Law
George Washington University Law School

May 26, 2006

Before the Permanent Select Committee on Intelligence
United States House of Representatives

I.
INTRODUCTION

Chairman Hoekstra, Representative Harman, members of the Select Committee, thank you for inviting me to testify on the role and responsibility of journalists in covering classified subjects.
The subject of today’s hearing carries particular significance for me as someone who regularly works in both the law and the media. On the legal side, I hold the Shapiro Chair for Public Interest Law at George Washington University where I teach relevant subjects that range from constitutional law to defamation to criminal procedure. In addition to writing on national security subjects as an academic, I have served as counsel in a variety of national security and espionage cases, including as lead counsel in the current terrorism case United States v. Al-Timimi. My litigation background includes cases that have dealt with attorney and journalistic privileges as well as executive privilege and the military and state secrets privilege. Due to my work in cases handling classified material, I have held a clearance since the 1980s.
On the media side, I have worked as a legal commentator for roughly two decades. I am a member of the USA Today Board of Contributors and write regularly for various newspapers, including The Washington Post, Los Angeles Times, Chicago Tribune, and other publications. I have also had four stints under contract with NBC and CBS news and continue to appear as a legal analyst regularly on various broadcast and cable programs.
Many lawyers and journalists have become increasingly alarmed by the erosion of protections for the media in this country. While we often refer to our country as the cradle of press freedom, it is not true that the United States currently represents the high water mark for journalistic rights and privileges. Despite our great tradition of a free press and our extensive media industry, other nations now extend greater protections to their reporters and recent coercive measures against reporters have made the United States an area of considerable concern for international organizations.
The recent controversy over press freedom comes at a time when we have never been more dependent on the Fourth Estate to challenge and check the government’s otherwise unbridled authority. In the last few years, we have faced one of the most serious constitutional crises in our history. President Bush has claimed the authority to violate or to circumvent federal law when he deems it to be in the nation’s interest. There continues to be a raging debate over the President’s authority to order warrantless domestic surveillance and other controversial (and potentially criminal) operations. These are controversies that the Administration obviously would have preferred to avoid. Much anger has been directed at the media and there have been calls for new penalties and prosecutions for reporters and their sources. Continue reading ‘Press Freedom and the War on Terrorism: Testimony in the House Intelligence Committee’

D.C. Vote in Congress: House Judiciary Committee

STATEMENT FOR THE RECORD
JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

LEGISLATIVE HEARING ON H.R. 5388,
THE “DISTRICT OF COLUMBIA FAIR AND EQUAL HOUSE VOTING RIGHTS ACT OF 2006”

SEPTEMBER 14, 2006

SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
THE UNITED STATES HOUSE OF REPRESENTATIVES

I.
INTRODUCTION

Chairman Chabot, Ranking Member Nadler, members of the Subcommittee, it is an honor to appear before you today to discuss the important question of the representational status of the District of Columbia in Congress. I expect that everyone here today would agree that the current non-voting status of the District is fundamentally at odds with the principles and traditions of our constitutional system. As Justice Black stated in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Continue reading ‘D.C. Vote in Congress: House Judiciary Committee’

Testimony: D.C. Vote in Congress (Senate Judiciary Committee)

STATEMENT FOR THE RECORD
JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

ENDING TAXATION WITHOUT REPRESENTATION:
THE CONSTITUTIONALITY OF S. 1257

MAY 23, 2007

COMMITTEE ON THE JUDICIARY
THE UNITED STATES SENATE

I.
INTRODUCTION

Chairman Feingold, Senator Specter, members of the Committee, it is an honor to appear before you today to discuss the important question of the representational status of the District of Columbia in Congress. At the outset, I believe that it is important for people of good faith to acknowledge that this is not a debate between people who want District residents to have the vote and those who do not. I expect that everyone here today would agree that the current non-voting status of the District is fundamentally at odds with the principles and traditions of our constitutional system. As Justice Black stated in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”

Today, we are all seeking a way to address the glaring denial of basic rights to the citizens of our Capitol City. Clearly, this is a matter that is heavily laden with passions from decades of disenfranchisement. However, there is a tendency to personalize the barriers to such representation and to ignore any countervailing evidence in the constitutional debates. In the last Senate hearing, my friend Delegate Eleanor Holmes Norton told Senators that if they are going to vote against this bill, “do not to blame the Framers blame Jonathan Turley.” Del. Norton went further to argue that it was “slander” to claim that the Framers intended to leave District residents without their own representatives in Congress. In reality, I have long argued for full representation for the District and abhor the status of its residents. As for claims of slandering the Framers, truth remains an absolute defense to defamation and the record in this case could not be more clear as to the intentions of the Framers. While some may view it as obnoxious (and indeed some at the time held the same view), the Framers most certainly did understand the implications of creating a federal enclave represented by Congress as a whole.

Unlike many issues before Congress, there has always been a disagreement about the means rather than the ends of full representation for the District residents. Regrettably, I believe that S. 1257 is the wrong means. Despite the best of motivations, the bill is fundamentally flawed on a constitutional level and would only serve to needlessly delay true reform for District residents. Indeed, considerable expense would likely come from an inevitable and likely successful legal challenge — all for a bill that would ultimately achieve only partial representational status. The effort to fashion this as a civil rights measure ignores the fact that it confers only partial representation without any guarantee that it will continue in the future. It is the equivalent of allowing Rosa Parks to move halfway to the front of the bus in the name of progress. District residents deserve full representation and, while this bill would not offer such reform, there are alternatives, including a three-phased proposal that I have advocated in the past. Continue reading ‘Testimony: D.C. Vote in Congress (Senate Judiciary Committee)’

Charles Bakaly III and Telling What Isn’t Secret

The New York Times

July 17, 2000

The contempt trial of Charles Bakaly III is something of a curiosity in Washington. In a town where leaks flow like a powerful torrent down every avenue, the prosecution of a spokesman based on an innocuous disclosure seems almost comically misplaced. Nevertheless, Mr. Bakaly, who was the spokesman for the independent counsel Kenneth Starr, is facing a criminal conviction for denying that he was the source for a New York Times reporter in January 1999.

For defense attorneys, the prosecution of a government lawyer would have been welcome if it were for leaking information that could not legally be made public. Government lawyers routinely leak facts from grand jury proceedings and commit other ethical violations with no response from most federal judges.

But Mr. Bakaly is not in the dock on such a charge; he is accused of criminal contempt under a rule that punishes false statements that delay or obstruct a court. The statements and the delay, however, came after a legal error of the court itself, which misinterpreted a federal law. The decision to initiate an inquiry into confidential communications raised serious concerns for lawyers who handle high-profile cases. The decision to pursue a criminal case against Mr. Bakaly only magnifies those concerns. Continue reading ‘Charles Bakaly III and Telling What Isn’t Secret’

Our Prison Profiteers

The New York Times
August 3, 1990

They run the new correctional ”hotels,” and some of their daily rates would make Leona Helmsley blush.

Across the country, local sheriffs are turning brisk profits as suppliers of precious cell space to desperate prisons. These cell owners charge whatever the market will bear, and today the market will bear a lot.

Thirty-eight states and the District of Columbia are under court order to reduce overcrowding. Their only alternative to early release is to rent cells from other prisons. Fees are set by a little-known market, with each jail offering bids that are often well above cost. Continue reading ‘Our Prison Profiteers’

Prisons Aren’t Nursing Homes — The Older Prisoner Crisis

The New York Times
October 9, 1989

BYLINE: By Jonathan Turley; Jonathan Turley, assistant professor of law at Tulane University, directs the Project for Older Prisoners.

On June 7, 1973, a 50-year-old homeless man named Quenton Brown walked into a bread store in Louisiana and, at gunpoint, stole $100 and a 15 cent pie. He then crawled under a nearby house where he remained until the police arrived. After his arrest, the state found that Mr. Brown had an I.Q. of 51 – the intelligence of a three and one-half year old child. After a one day trial, Mr. Brown was given a 30-year sentence without chance of parole. Now 66 years old, Mr. Brown has been at Angola State Penitentiary for 16 years.

Mr. Brown is an example of an emerging national scandal: the failure to release geriatric, low-risk prisoners to make room for younger, more dangerous ones. Even as prisons turn away hundreds of drug dealers because of overcrowding, they continue to hold Prohibition-era felons. Nationwide, there are at least 20,000 inmates over the age of 55. Continue reading ‘Prisons Aren’t Nursing Homes — The Older Prisoner Crisis’

Get Congress Out of the Page Business

October 4, 2006 New York Times

MEMBERS of Congress have been falling over themselves this week to assign blame to other people in the aftermath of the resignation of their colleague Mark Foley, the Florida Republican who has acknowledged sending improper e-mail messages to a former House page. The fact is, however, that they are all to blame to different degrees for this latest page scandal.

I served as a House leadership page in 1977 and 1978 under the sponsorship of Sidney Yates, an Illinois Democrat. This was during the dark ages when male pages were simply given a salary and told to find their own housing. (Female pages were housed at the Y.W.C.A.) It goes without saying that pages grew up fast and had to learn self-discipline and survival skills.

During my tenure, I was taken by other pages to the home of a man who lived on Capitol Hill — not a member of Congress — and who would give male pages alcohol and drugs. He was clearly a pedophile. On weekends, he brought boys into the woods to drink, shoot guns and pose for semi-nude pictures for his ”collection.” I knew enough to leave, but, given the extent of his ”collection,” some clearly did not.

It later became obvious, however, that some of the greatest dangers lurked inside, not outside, the halls of Congress. In 1983, two members were censured for having had sexual relationships with House pages. Dan Crane of Illinois was defeated after he said he had sex with a 17-year-old female page in 1980. Gerry Studds of Massachusetts refused to apologize for a 1973 relationship with a 17-year-old male page, saying that the page was above the age of consent. Mr. Studds was elected five more times.

Like the rest of society, Congress has always had sexual deviants and sexual predators who cultivated images of themselves as churchgoers with family values. Mr. Foley was a co-chairman of the House Caucus of Missing and Exploited Children and an author of various bills about abuse of children. For a member with dark predilections, the presence of trusting and vulnerable pages can be an irresistible temptation.

There are aspects of the representative-page relationship that can unfortunately provide ample opportunities for sexual predators. Pedophiles often assume fatherly roles, reassuring pages living far from their parents. The subordinate position of pages also fulfills power fantasies for some pedophiles.

What is at risk is something truly unique. Since the 1820′s, pages have been an official part of Congress, but there were probably pages even in the first Congress, in the 1790′s. For these young men and women, being a page is an experience that will resonate with them for the rest of their lives. (It is therefore particularly galling that, as in 1983, the misconduct of members often leads to calls to abolish the page service — removing the temptations rather than deterring the abuses.)

As a 16-year-old page, I served such iconic figures as Barbara Jordan and heard addresses from leaders like Hubert Humphrey. I still remember the first time I had to hoist the flag on top of the House of Representatives, walking over a narrow plank of rotted wood that was probably 200 years old. I stood on top of the windy Capitol holding that flag and having my own ”Titanic” moment: I felt as if there was no limit to this country or its promise. When I sat to catch my breath I noticed a spot near the door where pages had recorded their names for over a century. You could feel a connection that ran for generations, as if pages were part of the Capitol itself.

Pages also serve as reminders to members of Congress of the idealism that first drove them to choose public service. In the hallways of the Capitol they seem like antidotes to the Abramoffs, the Cunninghams and the general stifling cynicism that has taken over government. That is why many of us are so angry with the failure, yet again, to protect our pages.

The 1980′s scandals led to some important reforms on housing and schooling (including the creation of a page dormitory). These reforms, however, fell short of the needed changes.

The most glaring problem is that the House Page Board, which supervises the pages, is made up mostly of members of Congress (the Senate Page Board is composed of only two Senate officials, with no members). The representatives on the board have built-in conflicts of interests in moving against members accused of harassment. Political and social alliances complicate the process and many members would prefer to remain in blissful ignorance when rumors arise. Indeed, some (including the House speaker, Dennis Hastert) are accused of having known about Mr. Foley’s inappropriate messages months ago but allowing the matter to be addressed only informally and without serious action.

The solution is simple: the alumni of the page program need to protect their own ranks. Some of Washington’s most powerful figures in politics, media, business and the law are former pages. They are neither intimidated by members of Congress nor hesitant to drag a member to account. They are protective of pages and have the clout to match their concern.

Congress should create a Congressional Page Board composed of former pages. This board would have the ability to report infractions directly to the respective Ethics Committees for each house, which would be required to investigate and act upon any complaint submitted by the board.

One of the benefits of such a board is that former pages are likely to have a greater connection and rapport with current pages. Indeed, what is unusual about this case is that the page actually came forward — reports suggest that other pages had known of Mr. Foley’s conduct for years. They were wrong in not coming forward with the information. But that’s a difficult thing to do. It might have been easier if the voice on the other end of a telephone line was a former page.

If members are truly outraged, they will help us protect pages from predators in their own ranks. Power and pedophilia are by no means inevitable allies, but it is ridiculous and reckless to ignore their historical relationship. As former pages, we are happy to leave the Foleys, Cranes and Studdses to Congress. But Congress should leave the welfare of the pages to us.

War – What is it Good For

February 15, 2007 Thursday

As Americans have soured on the Iraq war, it’s easy to forget that armed conflict is sometimes the right course of action. In fact, a reflexive chant of ‘war is not the answer’ is a dangerous and amoral way of thinking. A child’s war-themed birthday party — and the ensuing meeting between members of the Greatest Generation and the next generation — brought this point home.

My wife and I recently watched as our three boys marched off to join Easy Company of the Army’s 506th Parachute Infantry Regiment, 101st Airborne Division. Their stoic faces belied their youth — ages 8, 6 and 4 — as they faced the horrors of dropping into Normandy 1944 as part of their best friend’s birthday party. There was plenty of action, of course, but nothing like what the parents would experience a few days later.

It appears that, as casualties and opposition rise with the Iraq war, even Liam Bowman’s 8th birthday party can become fodder in our national debate. Outraged parents complained that we were perverting the minds of children by glorifying war. Yet, there is something to learn from war — as we found out later with a visit to a small Veterans of Foreign Wars hall in rural Maryland. Continue reading ‘War – What is it Good For’

Reforming the Judicial Confirmation System

May 19, 2004 Wednesday

HEADLINE: Confirmation Process Needs a New Rule: Play Nice at Recess

BODY:
Recently, leading Democrats have accused President Bush of not playing nice. After Senate Democrats blocked confirmation of a number of judicial nominees, Bush sidestepped the Senate and gave them temporary “recess appointments.” Then, Democrats embargoed all judicial confirmations until the president agrees not to use his recess appointment authority. Yesterday the two sides reached an interim deal to break the deadlock (see story, p. 3). But more is needed.

The fight has its roots in a mistake that dates back to the drafting of the Constitution more than two centuries ago. Indeed, this mistake is one of the few oversights by framers, who were ordinarily smart about details. While the framers gave the Senate the sole authority to confirm judicial nominations, they also gave the president the authority to temporarily appoint officials without Senate confirmation when Congress was not in session. Continue reading ‘Reforming the Judicial Confirmation System’

Ronald Reagan and the Dangers of a Cult of Personality

June 10, 2004 Thursday

HEADLINE: Replacing Giants On Currency Is A Bill Too Far

BODY:
As the nation mourns the death of Ronald Reagan, there are some who are intent on marking his passing with more than heartfelt tributes and tears. A massive memorial on the Mall and other projects are currently being proposed to immortalize this conservative icon. However, two proposals appear to be moving quickly through the halls of Congress: One would replace Alexander Hamilton on the $10 bill, while the other would replace Franklin Delano Roosevelt on the dime.

The move to bump Hamilton and Roosevelt raises serious historical and symbolic questions – but few of these questions are likely to be discussed, let alone answered, during this period of mourning. While many Americans fiercely opposed Reagan and his policies, most of these critics have remained silent in deference to their fellow citizens who embraced Reagan as a political revolutionary.

The problem is that tossing great leaders such as Hamilton and Roosevelt off our currency risks turning a “celebration of life” into a cult of personality. There is no question that Ronald Reagan deserves memorials and praise. However, since he left office, the appetite for memorials among his disciples has been insatiable. Continue reading ‘Ronald Reagan and the Dangers of a Cult of Personality’

Tom DeLay and Congressional Ethics

November 22, 2004 Monday
HEADLINE: In Congress, Justice DeLayed Is Justice Denied

Power and principle have rarely coexisted well in Washington. However, even in a city that long ago lost the ability to blush, last week’s vote by Republican House Members on Majority Leader Tom DeLay’s (R-Texas) possible indictment left many breathless.

The GOP did away with an ethics rule that would have forced him to resign from his post if he, as some expect, is indicted in Texas for criminal acts related to fundraising. It is only the latest act of collusion in support of DeLay, who has become the Teflon Don of Beltway politics.

It was only a few weeks ago that the Committee on Standards of Official Conduct reprimanded DeLay for violating ethics rules in a different controversy. It was vintage Beltway theater. The reprimand was crafted to avoid any real punishment of DeLay, who immediately claimed a curious victory and thanked the committee for offering “guidance” on such issues.

Now, DeLay faces the possibility of an actual criminal charge in Texas. Close associates of DeLay have been indicted in Austin for illegal solicitations and campaign contributions. DeLay wanted the GOPto take control of the Texas House of Representatives before redistricting. However, it is illegal to solicit or spend corporate funds on political campaigns in Texas. Continue reading ‘Tom DeLay and Congressional Ethics’

Expanding the Supreme Court

July 19, 2005 Tuesday
HEADLINE: To Improve the Supreme Court, Let’s Expand It

For the past four weeks, Senators and commentators have often used the most apocalyptic terms to describe the potential nomination of a rigid conservative to succeed Associate Justice Sandra Day O’Connor, the Supreme Court’s perennial swing voter.

While many have called on the appointment of an O’Connor clone, there has been no discussion of the danger of a court that invests such power in so few jurists. As we prepare for another bloodletting over the nomination of a new justice, Members, particularly in the House, should pause to consider whether it is time to consider long-overdue reforms of the court. Specifically, we should consider adding not one but 10 new justices to the court.

While the public views the court as an inviolate and revered institution, various academics have called for a range of reforms, from term limits for justices to limitations on their jurisdiction. Years ago, I suggested expanding the current number of Supreme Court justices to 19 members. This proposal was based on the view that our court is demonstrably and dysfunctionally too small. Continue reading ‘Expanding the Supreme Court’

The Bush Administration’s Unchecked Authority

June 19, 2006 Monday

HEADLINE: Constitutional Swag, Congressional Privilege

We are in the midst of a crisis with few parallels in our nation’s history, but you would never know it by speaking with most Members of Congress. As Congress blissfully occupies itself with bread-and-circus politics such as flag-burning and same-sex marriage amendments, existing constitutional principles are being eviscerated.

Over the past six years, the Bush administration has made unprecedented intrusions into Congressional authority without any significant response, or even inquiry, by Congress.

The framers anticipated that each branch jealously would covet each other’s power. Accordingly, the Separation of Powers doctrine is based on the Madisonian principle that “ambition must be made to counteract ambition.” Continue reading ‘The Bush Administration’s Unchecked Authority’

The Page Protection Act: The Path to Saving A Historic Program

October 5, 2006 Thursday

Immortalized in movies such as “Mr. Smith Goes to Washington,” Congressional pages always have represented the youthful idealism of the country. Perhaps it is that very image that attracts people like former Rep. Mark Foley (R-Fla.), who resigned after admitting he sent improper e-mails to a House page.

For those of us who served as pages, our greatest concern is not with Members like Foley (who likely will be brought to account), but with the future of this unique institution. Whatever we learn about these allegations, one thing should be clear: The system failed, yet again, to protect pages from the Members they serve. It is time to pass a Page Protection Act that creates an independent body to oversee, maintain and protect the page service. Continue reading ‘The Page Protection Act: The Path to Saving A Historic Program’

Too Clever by Hafl: The D.C. Vote in Congress

January 25, 2007 Thursday

One of the most anticipated pieces of holdover legislation for the 110th Congress is the D.C. Fair and Equal House Voting Rights Act, giving the District of Columbia a single vote in the House of Representatives and balancing that Democratic vote with a fourth district for Utah. While heralded as a historic and long-overdue reform for the District’s non-voting citizens, the legislation is a constitutional and practical nightmare. It is an example of being too clever by half – trying to do the right thing without doing it in the right way. Continue reading ‘Too Clever by Hafl: The D.C. Vote in Congress’

The Return of the Equal Rights Amendment

April 16, 2007 Monday

HEADLINE: The Revival of The Equal Rights Amendment

For decades, the dream of cryonics has been to freeze clinically dead people for long periods so that they can be brought back to life in the future when a cure for their fatal ailment has been found. This month, the first successful cryonic experiment occurred in Congress with the sudden resuscitation of the long-dead Equal Rights Amendment, now called the Women’s Equality Amendment. Continue reading ‘The Return of the Equal Rights Amendment’

Roberts the Elder

John Roberts has an understated personality, but his record will be all torpedo.

Published: September 13th, 2005

As John Roberts sits down before the Senate Judiciary Committee this week, its members will be searching to better understand the man who would become the 17th chief justice of the United States. If history is any guide, they will learn little about who John Roberts is and even less about who John Roberts will become. The problem with confirmation hearings is that, even with a forthcoming nominee, they offer only a snapshot of a jurist before he or sheenters the rarified and mind-altering world of the country’s highest court.
Senators have learned that a strange metamorphosis can occur in the walk over the east Capitol lawn to the Supreme Court building. In that short expanse, reliable conservatives have been known to transform into raging liberals, and vice versa.

Senators will, therefore, struggle with the need to know the unknowable: To paraphrase the Beatles, “Will you still need me, will you still please me, when you are 64?” Continue reading ‘Roberts the Elder’

The Case for the Impeachment of Alberto Gonzales

Published August 2007 Roll Call

HEADLINE: The Case for the Impeachment of Alberto Gonzales

There is much about the current controversy over Attorney General Alberto Gonzales that would have perplexed the framers. Perhaps the most surprising would have been the relative passivity of Congress in the face of allegations of crimes by the nation’s chief law enforcement officer.

Long before the advent of special prosecutors and blue ribbon commissions, the framers created a system designed precisely for this type of situation: impeachment.

Article II, Section 4 of the Constitution expressly allows for the impeachment and conviction of any “civil officers” guilty of “high Crimes and Misdemeanors.” It is not necessary that such offenses be actual crimes for impeachment. James Madison described many acts of negligence that would be grounds for impeachment, including notably the “wanton removal of meritorious officers.”

The only Cabinet officer to be impeached was William Belknap, a former secretary of War who was charged with accepting bribes for contracts associated with the Indian Territory. The 1878 impeachment made it all the way to the Senate despite the fact that Belknap was no longer in office. While only three Senators believed him to be innocent, he narrowly escaped conviction on jurisdictional grounds by resigning from office. Belknap is buried at Arlington National Cemetery, ultimately succumbing to a “stroke of apoplexy” not long after his impeachment.

The impeachment of Cabinet officers has proved largely unnecessary because most officers gracefully have withdrawn or, when necessary, presidents have encouraged them to attend to “family matters.”

Not only has Congress given ample time and opportunity for Gonzales to step aside, it has withheld action despite highly compelling allegations of criminal conduct. On its face, the current record likely would satisfy most grand juries as sufficient to indict on at least some of the allegations. Indeed, many of Gonzales’ defenses to allegations of false statements routinely are raised by defendants in past cases – and uniformly rejected by his own department in cases such as the Scooter Libby prosecution.

This is not to say that Gonzales does not have valid defenses to make. The point of the House investigation is to determine whether impeachment is warranted, and there is ample record to justify such an inquiry. Consider just a few of the more compelling potential articles for impeachment:

Article One: Violations of Federal Criminal Provisions on Warrantless Surveillance. The National Security Agency program implemented by the Bush administration clearly and unambiguously violated the Fourth Amendment as well as federal law, which defines such warrantless surveillance as a federal crime. Yet this article could prove embarrassing to some Democratic Members who secretly were informed of the unlawful program. Moreover, the person most responsible for these crimes is the president and Democratic leaders repeatedly have stated that they will not consider any impeachment of President Bush.

Article Two: Obstruction and Misleading of Congress in the Course of Its Oversight Responsibilities. Gonzales has demonstrated a clear record of misleading Congress in its effort to investigate violations of the Constitution and international law. Examples of such conduct are numerous. For example, in his January 2005 confirmation hearing, Gonzales was asked by Sen. Russ Feingold (D-Wis.) whether the president could lawfully “authorize warrantless searches of Americans’ homes and wiretaps of their conversations.” Gonzales publicly dismissed the suggestion as merely a “hypothetical situation” when he knew the president had done precisely that for more than three years. Likewise, in April 2005, Gonzales told Congress that “there has not been one verified case of civil liberties abuse” under the USA PATRIOT Act. It was disclosed later that Gonzales had received various reports of precisely such violations, including one shortly before the hearing.

Article Three: Perjury – January 2005. The January 2005 statement constitutes an actionable allegation of perjury given the context. We have learned since then that Gonzales was deeply involved in the program as well as efforts to overcome internal critics of the program from Acting Attorney General James Comey to FBI Director Robert Mueller.

Article Four: Perjury – April 2005. Gonzales’ statement in April 2005 also is a valid basis for articles of impeachment. At the time of the statement, Gonzales was aware that many Americans opposed the act as relying too heavily on self-monitoring and self-control by the Justice Department. Finally, he was presumably aware that violations were found by internal monitors since he received various reports of those violations and those reports were directly relevant to his testimony.

Article Five: Perjury – February 2006. In a February 2006 hearing, Gonzales testified that “there has not been any serious disagreement about the [program].” In fact, we have learned that there was considerable opposition to the program that prompted the extraordinary confrontation at the sickbed of former Attorney General John Ashcroft. Indeed, it is now known that a March 10, 2004, meeting with Congressional leaders was called to inform them of such opposition and the possible need for legislation.

Article Six: Perjury – March-April 2007. On March 13, Gonzales publicly stated that he “was not involved in seeing any memos, was not involved in any discussions about what was going on” with regard to the firing of eight U.S. attorneys. Then, on April 19, he repeated this position to Congress and explained that “I haven’t talked to witnesses because … I haven’t wanted to interfere with this investigation.” These statements appear to be patently false. One of the central figures in the scandal, former Gonzales aide Monica Goodling, testified that Gonzales did question her about her recollection of the facts. Notably, she had gone to Gonzales to ask for a favor: to transfer out the office. Gonzales used this time, when Goodling most needed his intervention, to ask her about her recollection of events – questioning that Goodling stated made her feel “uncomfortable” at the time.

Article Seven: Perjury – July 2007. Most recently, Gonzales testified that a critical confrontation at Ashcroft’s hospital bed “was not about the terrorist surveillance program that the president confirmed.” He was asked about this incident given his prior statements that there was no serious disagreement over the domestic surveillance program. Gonzales’ statement has been directly contradicted by other testimony, most notably that of FBI Director Mueller.

However painful or costly such proceedings might prove, there are far greater costs in ignoring such conduct. Congress cannot continue to call on others to address this controversy. The framers gave Congress the authority to act in the face of defiant contempt or misconduct by civil officers. It should now act as the framers envisioned: fairly but firmly with the initiation of impeachment proceedings.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University Law School.

Polygamy and Hypocrisy

Posted 10/3/2004

Polygamy laws expose our own hypocrisy
By Jonathan Turley
Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.
If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.

For polygamists, it is simply a matter of unequal treatment under the law.

Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners. Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners “as a spouse,” we jail them.

Likewise, someone such as singer Britney Spears can have multiple husbands so long as they are consecutive, not concurrent. Thus, Spears can marry and divorce men in quick succession and become the maven of tabloid covers. Yet if she marries two of the men for life, she will become the matron of a state prison.

Religion defines the issue

The difference between a polygamist and the follower of an “alternative lifestyle” is often religion. In addition to protecting privacy, the Constitution is supposed to protect the free exercise of religion unless the religious practice injures a third party or causes some public danger.

However, in its 1878 opinion in Reynolds vs. United States, the court refused to recognize polygamy as a legitimate religious practice, dismissing it in racist and anti-Mormon terms as “almost exclusively a feature of the life of Asiatic and African people.” In later decisions, the court declared polygamy to be “a blot on our civilization” and compared it to human sacrifice and “a return to barbarism.” Most tellingly, the court found that the practice is “contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western World.”

Contrary to the court’s statements, the practice of polygamy is actually one of the common threads between Christians, Jews and Muslims.

Deuteronomy contains a rule for the division of property in polygamist marriages. Old Testament figures such as Abraham, David, Jacob and Solomon were all favored by God and were all polygamists. Solomon truly put the “poly” to polygamy with 700 wives and 300 concubines. Mohammed had 10 wives, though the Koran limits multiple wives to four. Martin Luther at one time accepted polygamy as a practical necessity. Polygamy is still present among Jews in Israel, Yemen and the Mediterranean.

Indeed, studies have found polygamy present in 78% of the world’s cultures, including some Native American tribes. (While most are polygynists — with one man and multiple women — there are polyandrists in Nepal and Tibet in which one woman has multiple male spouses.) As many as 50,000 polygamists live in the United States.

Given this history and the long religious traditions, it cannot be seriously denied that polygamy is a legitimate religious belief. Since polygamy is a criminal offense, polygamists do not seek marriage licenses. However, even living as married can send you to prison. Prosecutors have asked courts to declare a person as married under common law and then convicted them of polygamy.

The Green case

This is what happened in the case of Green, who was sentenced to five years to life in prison. In his case, the state first used the common law to classify Green and four women as constructively married — even though they never sought a license. Green was then convicted of polygamy.

While the justifications have changed over the years, the most common argument today in favor of a criminal ban is that underage girls have been coerced into polygamist marriages. There are indeed such cases. However, banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse. The country has laws to punish pedophiles and there is no religious exception to those laws.

In Green’s case, he was shown to have “married” a 13-year-old girl. If Green had relations with her, he is a pedophile and was properly prosecuted for a child sex crime — just as a person in a monogamous marriage would be prosecuted.

The First Amendment was designed to protect the least popular and least powerful among us. When the high court struck down anti-sodomy laws in Lawrence vs. Texas, we ended decades of the use of criminal laws to persecute gays. However, this recent change was brought about in part by the greater acceptance of gay men and lesbians into society, including openly gay politicians and popular TV characters.

Such a day of social acceptance will never come for polygamists. It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond. No matter. The rights of polygamists should not be based on popularity, but principle.

I personally detest polygamy. Yet if we yield to our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites. For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens.

I know I can educate my three sons about the importance of monogamy, but hypocrisy can leave a more lasting impression.

Microscopic Humans and Stem Cell Politics

USA TODAY
July 18, 2006 Tuesday

HEADLINE: The case for macroscopic humans;
The stem cell debate this time may be settled quickly with President Bush’s first veto. In doing so, he effectively will choose to protect microscopic masses of cells instead of actual living, breathing human beings. And that’s a travesty.

BYLINE: Jonathan Turley

BODY:

Once again, the nation has returned to the all-consuming debate over the fate of the embryonic stem cell. With the expected passage of a federal stem cell bill lifting President Bush’s harsh restrictions on federal funding, the White House has announced that he will veto the bill despite its overwhelming support among citizens and Republicans and Democrats in Congress. It will be the first veto of Bush’s presidency. All for the protection of the beguiling embryonic stem cell: a microscopic cell taken from a microscopic part of a barely perceptible mass of cells called a blastocyst, or early stage human embryo.

To get an idea of the size of the object of this controversy, consider the dot over the “i” in embryonic. I am told by Tim McCaffrey, a leading researcher of adult stem cells at George Washington University, that the dot would hold hundreds of stem cells, dozens of which would be suitable for research. It would also hold at least one blastocyst that contains the cells.

While imperceptibly small, the blastocyst is undeniably a step in the creation of life. This has turned the blastocyst into the poster (pre-)child for the movement to outlaw abortion. Abortion foes have taken the most extreme possible position in opposing any use of the blastocyst for research — converting the blastocyst into a type of “holy dot.”

Watchful eye is needed

Despite my long support for stem cell research, I am not in favor of unrestricted use of human embryonic material. There are dangers of a slippery slope if researchers could use in vitro fertilization for the sole purpose of “harvesting” such material. But the federal bill would not create such a limitless environment. Rather, it would focus on thousands of stem cells that are the byproduct of genuine in vitro procedures — used with the permission of each donor couple. These stem cell lines are routinely discarded by clinics but could be used for important scientific research.

Stem cell research could ultimately produce cures or treatments for diseases and injuries affecting an estimated 130 million citizens, including people suffering from such ailments as juvenile diabetes, Parkinson’s, ALS and spinal cord injuries. Most treatments remain years away, but stem cell treatment has already begun in Europe for people with heart and nervous system ailments. Clinical tests with animals have shown astonishing success. For example, just last month, it was reported that stem cell treatment can not only repair damaged spinal cords but also regrow them to allow paralyzed animals to walk again.

Given such proven potential, most Americans oppose the president’s restrictions on research. Seven out of 10 Americans support fully funded stem cell research. Even ultraconservative leaders such as Sen. Orrin Hatch, R-Utah, and conservative celebrities such as former first lady Nancy Reagan have opposed Bush’s ban.

Nevertheless, the president opposes even the use of discarded stem cells with the express consent of the couples. It is a position that is comprehensible only to the most extreme activists: Throw the blastocysts out but do not degrade them by extracting the cells for medical research or cures.

Treating these discarded blastocysts as if they’re some microscopic underclass is lost on millions of families with macroscopic loved ones suffering from fatal or crippling diseases. In 2004, I wrote an article on the personal costs of Bush’s policy for families such as my own. At the time, my father, Jack Turley, was fighting the rapidly advancing effects of Parkinson’s disease. On Feb. 19, 2005, time ran out for my father.

This debate is not about abstractions for millions of Americans. For me, it is about my dad. So I will not claim objectivity, nor would I want to. Once you go through the death of a loved one from one of these vicious diseases, you lose patience with the endless debate over the fate of discarded blastocysts.

A real life ended

My father was no abstraction of life. He was my best friend and the man whom I most admired in this world. With my mom and my oldest brother, Dominic, I held Dad as he died in a Chicago hospital room. In the end, he had lost so much weight that we had to bury him in one of my suits and shirts. It was the suit that I was married in — the day that we first suspected something was wrong with Dad, who suddenly could not tie his own tie. As my bride waited downstairs for the ceremony, I remember being slightly embarrassed for my proud father as I knotted his tie. It would be only the first of many increasingly degrading moments for this intensely private person.

Having gone through this nightmare, I cannot work up much sympathy for the holy-dot theory. Nor do I have much patience for the self-described “compromise” of Sen. Rick Santorum, R-Pa., an unflagging opponent to embryonic stem cell research. Facing a tough re-election campaign, Santorum has proposed a bill that calls for more study into the use of non-embryonic cells or ways to remove cells without harming the embryos — which, in the case of the clinic embryos, would then presumably be thrown into the trash “unharmed.”

I know that the loss of five years under Bush would not have made a difference for my dad. But what made me angry — what still makes me angry — is that the president and his allies make the blastocyst, not my father or other ailing citizens, the object of their obsession. They are simply immaterial to the president’s faith-based politics. But these citizens were not some vague potential for life. They lived and, what should concern the White House, they left millions of newly minted single-issue voters.

Stem Cell Politics

May 18, 2004, Tuesday, FINAL EDITION

HEADLINE: Bush’s stem-cell politics leaves Dad to wither

BYLINE: Jonathan Turley

BODY:
My father is dying from an American political disease. In a nation divided evenly between red and blue states, governmental policies have long been distorted by the gravitational pull of the extremes of the two parties.

For President Bush, policies often have been shaped by his fundamentalist and conservative religious base. While controversial, many of these policies are largely symbolic, such as his unheeded call for an amendment to ban gay marriage. The president’s policy opposing stem-cell research, however, presents a far more deadly concession — one that might secure votes, but at a prohibitive cost of human life.

Stem-cell research is back in the news after former first lady Nancy Reagan’s call this month for Bush to drop his opposition to fully funded research. Former president Ronald Reagan has advanced Alzheimer’s disease and may benefit from stem-cell research. More than 200 members of Congress (including nearly three dozen abortion-rights opponents) responded to the call and asked Bush to lift his extreme limitations on federal funding in some instances. Former presidents Gerald Ford, Jimmy Carter and Bill Clinton have also joined the chorus.

Such a change may come too late for my father. The immediate threat to him is an advanced-stage Parkinson’s disease that is sapping his strength, reducing his mobility and robbing his mind. However, it is not Parkinson’s, but politics, that has proved the greatest burden in our fight for his life.

In his self-described “compromise,” Bush said stem cells (microscopic clusters of cells often discarded by hospitals) must be protected as potential human life. The White House recently reaffirmed that Bush would not allow research to “cross a fundamental moral line.” Bush has yielded to groups such as the American Life League, which sees such research as a “deadly use of . . . human beings who are currently in their embryonic stage of development.”

The president has restricted federally funded researchers to using a small number of existing “stem-cell lines,” created before Aug. 9, 2001. From the outset, the compromise was a bit odd, because if the microscopic cells are “human beings . . . in their embryonic stage,” Bush adopted the ultimate split-the-baby solution.

If they are embryonic humans, it should hardly matter whether they were created before or after August 2001. If Bush accepts that they are not human lives, as some abortion-rights opponents accept, then the restriction is a callous political decision at the potential cost of 130 million Americans with cancer, heart disease, diabetes, Parkinson’s, Alzheimer’s, multiple sclerosis and other diseases potentially treatable — even curable — by advances from stem-cell research.

At the time of his compromise, Bush said there was an ample pool of stem-cell lines for research demands. He insisted that there were about 70 such cell lines, even though many researchers immediately denounced that number as overstated. They have been proved correct. The National Institutes of Health reported last week that there are only 11.

Bush’s policies have proved disastrous for American research that once led the world in this field. Vital federal stem-cell funding has been reduced to $ 17 million a year, forcing states to take the lead in funding research. (In comparison, the Senate has approved $ 50 million to build an indoor rain forest in Iowa.) The loss of federal support has forced some states to try to make up the difference despite crushing debts. Now, top researchers in the USA are moving abroad, where they can fully pursue their research, find breakthroughs and let European companies reap the profits.

In the end, however, the economics and the politics are matters for presidents to ponder. Most of us are left as the ultimate single-issue voters. My single issue has a name: Jack Turley.

An accomplished architect and one of a handful of students trained by the famed Ludwig Mies van der Rohe, he now struggles to maintain his dignity against a disease that first robs you of every ounce of dignity and only then takes your life.

As my father sits in Chicago, 400,000 spare embryos sit in freezers across the country. They could be used to radically speed up research in Parkinson’s and other diseases, but because of the president’s policies, these embryos are likely to be destroyed — a perverse result of protecting “embryonic humans” by discarding them.

Ultimately, every person can elect to accept or reject drugs based on this research. However, the effective bar on federally funded research imposes the president’s religious views on all of us.

I have become blind to Iraq, environmental laws, civil liberties and taxes. I have the myopia that comes with desperation. I cannot see beyond a chair in Chicago where a man sits who once carried me on his shoulders and protected me against every danger.

Part of me resents that suddenly politicians are scrambling for a change in policy because Ronald Reagan has Alzheimer’s and needs help. My dad is one of millions of towering historical figures known primarily to their families. They didn’t beat communism; they did something far more incredible and important: They raised families. They now sit, like Dad, helplessly monitoring not the progress but the politics of disease.

***

Miranda and the Supreme Court

The Washington Post
June 27, 2000, Tuesday, Final Edition

HEADLINE: ‘Miranda’–Confirmed but Barely Alive

BYLINE: Jonathan Turley

BODY:
“You have the right to remain silent . . .” It’s difficult to imagine what moviemakers would do without the required Miranda warning to top off the arrest scene in just about every cop film they produce. So yesterday’s 7 to 2 vote by the Supreme Court upholding Miranda as a constitutional principle should be a comfort to Hollywood. For criminal defendants, however, Miranda will continue to make better dramas than defenses despite yesterday’s ruling.

The survival of Miranda certainly came as a surprise to many who doubted both the decision’s original basis in the Constitution and its remaining support on a more conservative court than the one that handed down the ruling in 1966, when even Chief Justice Earl Warren could eke out only a 5 to 4 majority from a liberal court.

Yet, Warren’s most famous ruling was ultimately to be preserved by one of his most ardent critics, Chief Justice William Rehnquist. Putting to rest years of speculation over the viability and basis of the ruling, Rehnquist finally established that “Miranda is a constitutional decision” and, by extension, so are the progeny of cases that it inspired. As such, it is a rule that “Congress may not supersede legislatively.”

But despite the sweeping language of yesterday’s decision, there may be less to it than meets the eye. For while the Supreme Court is clearly unwilling to pull the plug, Miranda lingers at best on life support. In fact, the Miranda of the Warren Court died years ago. It succumbed not to a single blow of the conservative majority but to a thousand paper-cuts.

Over the years, the court has allowed a myriad of exceptions that make Miranda a mere symbolic presence in most federal cases. Because of these rulings, reversals of convictions under Miranda are relatively rare events.

For example, the court ruled in 1984 that Miranda warnings are not necessary when the police seek information “reasonably prompted by a concern for the public safety.” Under this “public safety exception,” the police can question a suspect about the location of a gun and then use the evidence against him in court.

Likewise, the court has limited the meaning of “custodial questioning” that triggers the Miranda protection. In a 1977 burglary case, the court found that Miranda did not apply when the chief suspect was “invited” to come to the police station to discuss the crime.

Once a person is in “custody,” the court has narrowed the definition of “interrogation” by holding that “voluntary statements” are not protected, even when made in response to statements by the police. Thus, in a 1980 case a suspect was arrested for murder, and the officers engaged in an anguished discussion of the possibility that children from a nearby school for the handicapped might find the shotgun used in the crime. The suspect promptly incriminated himself by telling them where the gun was. The court held that the officers could not have reasonably believed they would get such a response from the suspect.

Even after “interrogation” begins, the court has allowed for police to secure waivers through acts of deception. For example, the court upheld a waiver of Miranda rights in a 1986 murder case despite the fact that the police lied to a lawyer seeking access to the accused. After telling the lawyer that his client would not be interrogated, the police interrogated the suspect and secured a confession without ever disclosing that his family had hired a lawyer who was trying to see him.

Finally, even when the court recognizes a clear violation of Miranda, it has allowed police to use the evidence. For example, in one of many cases limiting the “exclusionary rule,” the court ruled in a 1971 case that such evidence could be used to “impeach” a defendant if he takes the stand in his own defense.

Ultimately, what saved Miranda from being overturned is probably more its mystique than its meaning. Miranda has become too interwoven in our legal and cultural fabric to simply be dispatched as no longer relevant. The court therefore preserved the body while allowing its spirit to drain away years ago.

There is a legitimate question as to whether Miranda is part of the Constitution, which does not expressly require a duty to inform defendants of their rights. But if it does indeed uphold a constitutional principle, there should be some substance to the protection. Otherwise, yesterday’s reaffirmation of Miranda as constitutional law is little more than a constitutional affectation.

Kevin Kelly and the Victimization of a Greiving Family

June 9, 2002 Sunday

HEADLINE: A Tragedy, Not a Crime

BODY:

By all accounts, Kevin Kelly is a loving father who works hard to support his large family in Manassas. The father of 13 children, Kelly was doing sole duty last week when his youngest, a 19-month-old girl, was accidentally left in the family van. She later died.

When most families would be attempting to cope with such a horrific loss, the Kelly family was hit this week with another unimaginable blow. Commonwealth Attorney Paul B. Ebert has announced that he intends to charge Kelly with involuntary manslaughter, a charge that could send him to prison for 15 years. Ebert stated that he wanted to send a message to all parents. Indeed he did. Kelly’s prosecution sends a chilling message of prosecutorial over-reach and abuse. Unfortunately, it is not unique. Increasingly, prosecutors appear to be expressing their outrage over parental negligence through criminal charges, leaving terrible consequences in their wake.

The disaster that struck the family occurred last week when Kelly was watching the children while his wife and one daughter were taking a vacation in Ireland. When the family returned home in their 15-seat van, Kelly enlisted his oldest teenagers to help get all 12 kids into the house. One of the teenagers removed the family’s 3-year-old daughter but forgot the youngest in the van. Kelly assumed that everyone was in the house as he did chores and got pizza for dinner (in another family car). Seven hours later, the child was found dead in the closed van.

This was not the first time that Kelly has lost track of one of his kids. Previously, he left one of his sons at a video store and did not realize that the boy was missing until the store contacted him hours later. But no one has suggested that Kelly knowingly left his daughter in the van, and both parents are described as deeply religious and supportive. This is a case of negligence but not a crime. Criminal cases have long been confined to parents who knowingly put their children at obvious risk, physically abused their children, engaged in drug or criminal activities or showed a history of child neglect.

Ebert does not allege such criminal elements. Nevertheless, Ebert insists that “this case is bigger than Mr. Kelly.” Ebert says that a prosecution of the father is necessary so that “other people will get the message that gross negligence . . . is something that can be prosecuted.” To that end, Ebert stated that he has not decided whether to also criminally charge the teenage daughter as part of his “family learning through prosecution” policy.

Criminal justice is generally based on one of two objectives: retribution or deterrence. Neither objective will be achieved by prosecuting this grieving father. In terms of retribution, no penalty can possibly extract the costs of losing a child due to personal negligence. As for deterrence, Ebert’s belief that prosecution will “send a message” is bizarre. Ebert’s lingering threat is not going to cause parents to be more attentive or less forgetful. You send a message to criminals who act deliberately. Parents are not going to begin to put fail-safe protections into effect because, in addition to losing the most valuable thing in their lives, they risk being served with Ebert’s own brand of punishment.

Ebert is not the first prosecutor to use criminal law to punish parental negligence. In 2000, Paul Wayment was charged criminally after he left his sleeping son in his truck while he hunted. The boy wandered away and was later found dead in the forest. Even the prosecutors admitted that Wayment was not simply a good father but a father totally engrossed in his son. He took his son everywhere and was devastated by the loss. The prosecutors decided to charge but specifically asked the judge not to send the man to jail. However, Utah’s Judge Robert Hilder decided that he had not suffered enough. Hilder told Wayment that he would be sent to jail to consider what he had done. Wayment left the court, went to the spot in the mountains where his son was found and committed suicide. I remain convinced that it was not the prospect of jail but the suggestion that he lacked remorse that proved too much for him. Neither a judge nor a prosecutor was needed to get Wayment to consider what he had done. It would be the defining moment of his life, an agony that only a parent can appreciate. Wayment was certainly guilty of a thoughtless, if not moronic, act in leaving that child in his truck. However, in doing so, he imposed a sentence on himself that was absolute and unappealable.

Our society seems incapable of expressing its most fundamental values without a criminal charge. Prosecution has become a type of exclamation point for social judgments. However, in the Wayment and the Kelly cases, such prosecutions only victimize the grieving to satisfy the vengeful. It is the prosecutorial version of ambulance chasing. Faced with a high-profile death, prosecutors yield to a temptation to express their own views of the parental negligence, as if such a view was in doubt or needed.

Ebert clearly believes that if he hoists a wretch, he can improve child care in Virginia. There is something to this logic that reminds one of the Vietnam War technique of destroying a village to save it. Here, the state will respond to the tragic loss of this child by destroying the family. It will first drain what little funds are available to this large family and then, if successful, it will send the family’s only breadwinner to jail. Ebert insists that “this is bigger than Mr. Kelly.” Not to his family, Mr. Ebert. Before the state victimizes this family in our name, the public needs to send its own message to those who cannot distinguish between true justice and gratuitous punishment.

UnAmerican Arrests: Trap and Arrest in Washington

The Washington Post
October 6, 2002 Sunday

HEADLINE: Un-American Arrests;
Mass detainments of the innocent may be the ultimate form of crowd control, but the tactic is unconstitutional.

BODY:

The urgent calls began late on the first day of the World Bank- International Monetary Fund protests: Students who were either reporters or bystanders had been swept up in mass arrests. The accounts had one common element: All the students were arrested while trying to comply with the law.

The D.C. and National Park Service police had used the same technique in each instance:

Surround the crowd. Tell its members to disperse or face arrest. And then, as people try to disperse, block their escape with rows of officers in riot gear and arrest them.

This happened to a number of student reporters from various universities who were arrested while older reporters were allowed to exit through police lines. One student photographer was clubbed by police while taking pictures. The students then were held in handcuffs on buses for as long as 10 hours before being taken to holding areas for the night, where they slept with one wrist handcuffed to an ankle. Police told them they would be held until Monday if they challenged the arrests but would be released immediately if they pleaded no contest.

Obviously, with thousands of protesters and fluid conditions, police can make mistakes. However, the practice of intentionally encircling large numbers of people for mass arrests, whether or not any law is being broken, was no mistake.

The protests occurred outside the dormitories of some George Washington students, and the university’s law school is located across from the International Monetary Fund and down the street from the World Bank. Many students who were arrested report that they were never told to disperse. The Constitution protects a person’s right to witness public events. While the city may prohibit protests without a permit, it is not allowed to arrest people who are not engaged in such protests. It must give people, including bystanders, an opportunity to leave the area. The error some people made last week was not in their understanding of the law but in their expectation that the D.C. police would comply with it.

The practice of preventing withdrawal seems calculated to maximize arrests in order to remove large numbers of people from the streets. This view is reinforced by the fact that hundreds of people were held until Saturday evening, then released in a perfunctory manner. While they could have been released within hours of their arrest, their continued detainment achieved the purpose of disrupting the protests.

Most officers showed professionalism and restraint during the demonstrations. Moreover, some protesters who sought to interfere with traffic or to protest without a permit were legitimate targets for arrest. But many seemed to have been taken into custody through the trap-and-arrest policy.

It is hardly difficult to make the D.C. streets as orderly as Beijing’s if police can arrest large numbers of people without cause. However, this technique is both distinctly unconstitutional and un-American.

The D.C. Council should investigate whether police:

* Prevented crowds from dispersing by closing off exit points as a prelude to arrest.

* Kept people in shackles for more than 24 hours.

* Used excessive force when people tried to disperse through police lines or in the course of the mass arrests.

* Held hundreds under the pretense of administrative delays in order to deplete the protests.

If the council finds that there was such a policy, police management (including Chief Charles Ramsey) should be held accountable. A trap-and-arrest policy may be the ultimate form of crowd control, but it is neither a constitutional nor a commendable practice. Unless there is an investigation and corrective action is taken, this convenient policy of crowd suppression is likely to become standard operating procedure in our nation’s capital.

Snow Removal and Democracy

The Washington Post
February 23, 2003 Sunday
HEADLINE: How Democracy Could Clear Our Snowy Streets

BODY:

I’ve been thinking about snow and democracy recently. It’s hard not to when you’re confined at home for five days because of the absence of snow removal. But while last weekend’s storm was of historic proportions, my confinement was nothing new.

As someone who has lived in this area for years, I know that snow removal on side streets ranks about as high as raccoon removal among local governmental priorities. In Alexandria, where I now reside, snow removal is called spring.

The way to end this naturalist approach to winter is simple: Make the positions of street and sanitation director two-year elected posts in jurisdictions throughout the region.

Every time it snows, citizens complain about snow removal and city officials express their surprise about the size of the storm. These officials then explain that crews are working overtime and call for patience from the public. Snow removal is treated like a venture into the unknown. In reality, it is a simple ratio of snow to snow crews: more crews, more snow removal.

Many citizens have resigned themselves to the fact that they probably will have to wait days before their neighborhood sees a plow. Others are outraged by the situation, but their bitter memories melt with the snow.

In Chicago, where I was raised, we threw out Mayor Michael Bilandic in 1979 because the streets were not cleared within 24 hours after a 20-inch snowfall. Since then, Chicago officials have cleared the streets as though their jobs depended on it.

In my Alexandria neighborhood, side streets remained impassable until late Tuesday, three days after the storm hit. The lack of plowing kept many people from their jobs at a huge loss in productivity. Local businesses suffered. By Tuesday morning, some neighbors had tried to force their cars over almost two feet of snow, and the streets were littered with cars looking like so many frozen mastodons.

The blame for this did not lie with citizens, who were driven to desperate self-help measures, but with government officials, who allow the streets to devolve into anarchy every time six inches fall from the heavens. Yet we have no place to direct our anger about substandard snow removal, except toward some unknown apparatchik who runs the local transportation department. Elected positions for streets and sanitation would permit the public to express its satisfaction or dissatisfaction with services. While few of us follow the work of local representatives, almost all of us are intimately familiar with the performance of the street and sanitation directors.

If these positions were subjected to two-year elected terms, citizens would be able to change snow removal policies by changing directors. This would engender competition among candidates to identify problems and propose solutions. It also wouldn’t let mayors and county executives off the hook for feeble snow removal efforts: If elected street or sanitation officials were shortchanged by a county council or a mayor, they would have every incentive to make the true source of the disaster known.

When James Madison and his colleagues were crafting our democratic system, it is doubtful that they saw direct election as a key to snow removal. However, as I sat captive in my home, it seemed clear that more democracy in our government would mean less snow on our streets.

LOAD-DATE: February 23, 2003

Stun Guns and Torture at the Push of a Button

August 28, 2003 Thursday

HEADLINE: Torture at the Push of a Button

BYLINE: Jonathan Turley

BODY:

Last week accused sniper John Allen Muhammad raised a point of legal procedure and received a shocking response — literally. Muhammad objected to a medical test that had not been ordered by the court or discussed with his attorney. In response to his refusal to cooperate, the guards activated a stun belt that sent a powerful electrical charge through his body.

While few people in this region have sympathy for Muhammad, the use of a 50,000-volt shock was a disturbing introduction to this common device. In fact, the use of the stun belt in such a circumstance is unlawful but not unique. Stun belts have been denounced internationally as a violation of basic human rights. Local government and Congress should insist on new guidelines, if not a ban, on the use of these devices.

At $ 800 each, stun belts are the closest thing to a fashion craze in the correctional field. For the well-appointed prosecutor or prison guard, they’re a must. The devices are battery-operated and fit around the waist of a prisoner. The guard holds a simple remote control that sends an eight-second, 50,000- to 70,000-volt surge through a prisoner, causing immediate loss of muscular control and incapacitation. When shocked, many individuals will defecate or urinate on themselves. Some can experience fatal cardiac arrhythmia. Muscular weakness and temporary paralysis or weakness continue for 30 to 45 minutes. Last spring Wisconsin sheriffs held a public display to show the media how harmless tasers (stun guns) and stun belts are by shocking one of their own deputies, appropriately named Krist Boldt. Boldt was hit with a five-second jolt and was sent to the hospital with a head wound after he hit the floor.

The increasing use of stun belts in the United States has alarmed some of our closest friends internationally. Stun belts have been defined as a torture device by Amnesty International, which describes them as “cruel, inhumane and degrading.” The United Nations Committee Against Torture has objected that they may violate the Geneva Conventions.

Despite such human rights objections, stun belts are used in 30 state prisons and all federal trial courts. For prisoners, they have the same effect as a taser gun pointed continually an inch from their heads. At any moment, a guard can flip a switch and turn you into a quivering, incapacitated freak. Indeed, the stun belt’s ability “to humiliate the wearer” is cited as a “great advantage” by one company’s literature — impressing on a defendant that “the mere push of a button in someone else’s hand could make you defecate and urinate yourself.”

A court recently found that accidental triggerings occur regularly. For example, murder defendant Roy Hollaway of Las Vegas was at a critical stage of his trial, with a prosecutor pointing to him and asking the jury “how deep, deep into this man’s being does this violence run?” As if on cue, Hollaway’s stun belt was triggered and 50,000 volts coursed through him. As the jury watched, Hollaway flailed and foamed on the courtroom floor.

It is because of the constant threat of an intentional or accidental shock that some courts have banned or restricted the use of stun belts in court. Last year the California Supreme Court effectively banned the use of hidden belts during criminal trials, rejecting claims that conventional restraints and proper supervision cannot satisfy security concerns. Other states, such as Indiana, have also banned them.

The use of a stun belt on Muhammad appears abusive and should be investigated as a potential case of criminal assault. In the United States, a prisoner cannot be physically attacked for a refusal to submit to a medical test. In this case, Muhammad reportedly refused to submit to an X-ray without speaking with his counsel. Muhammad had agreed to a court-ordered MRI, but objected that the X-ray was never raised. According to The Post, Muhammad was restrained by the wrists and ankles and never became violent. The stun belt was apparently used to punish him and force him to conform to the wishes of the guards. With stun belt literature promising guards “total psychological supremacy” over inmates, an inmate’s failure to yield can enrage a guard and easily lead to such “corrective action.”

There is no difference between this alleged use of a stun belt and an officer beating Muhammad with a club or shooting him for failing to yield to commands. Yet such abuses are rarely treated as criminal matters. In June 1998, Long Beach Superior Court Judge Joan Comparet-Cassani ordered a deputy to shock a defendant, Ronnie Hawkins, after he repeatedly interrupted her. A judicial review board refused to impose disciplinary action on the judge, who continues to try cases in California.

Various ways exist to control or punish an uncooperative prisoner short of some Pavlovian use of electric shocks. In Muhammad’s case, he could have been punished administratively for the failure to obey an order, assuming that he was wrong.

Stun belts should be prohibited from use in court and in all but the most extreme correctional circumstances. At a minimum, this case calls for new restrictions and training and a commitment to prosecute guards who use excessive force.

The writer is Shapiro professor of public interest law and directs a prison project at George Washington Law School. He will answer questions about this column during a Live Online discussion at 2 p.m. today at ww

The Black Tax: Reparations and the Scamming of the Black Community

November 9, 2003 Sunday

HEADLINE: The Black Tax;
Of charlatans, crooks and victims and the reparations scam.

BODY:

Last month a federal court in Richmond finally took action against one of the country’s most virulent tax scams: the “black tax credits.” Crystal Foster, 25, and her father and tax preparer, Robert Lee Foster, 51, were sentenced for claiming — and receiving — tax refunds as reparations for slavery. Crystal Foster claimed a taxable income of only $3,429 but demanded $500,000 from the government in reparations — and got it. The IRS actually paid her $507,490.91 to cover the interest due to the delay in sending her a check.

Cases such as the Fosters’ have fueled a cottage industry of charlatans and crooks pushing the promise of a “black tax” in what might be the greatest tax fraud in American history. The Internal Revenue Service has campaigned against the myth of a black tax for years, warning citizens that such claims amount to fraud, yet tens of thousands of claims are filed annually.

The court ordered Crystal Foster to repay the money that the IRS mistakenly had paid her and sentenced her to 37 months in prison. She had spent most of the $500,000 on a Mercedes, loans and gifts within eight days of receiving the payment. Her father was given a 13-year sentence on four counts of conspiracy to defraud the government. Similarly, Gregory Bridges, a tax accountant in Woodbridge, was convicted in June of preparing more than 100 such fraudulent returns for D.C., Maryland and Virginia residents.

The origin of the black tax and the story of its many victims combines a misunderstanding of history, raw political opportunism and old-fashioned greed.

The myth began with the April 1993 issue of Essence magazine and a piece by “journalist and economics consultant” L.G. Sherrod. Sherrod informed readers that the United States owed them for the value of the 1866 promise of “40 acres and a mule.” Citing as an authority “The People’s Institute for Economics,” she said that the adjusted value of this broken promise was $43,209. Readers could claim this amount, she advised, by writing on line 59 of tax form 1040 — which asks the filer to list “other payments” — the $43,209 in black taxes.

At first blush, one might assume that this was a joke. After all, by the same logic, one could calculate the current value of “a chicken in every pot and a car in every garage” promised in 1928 by Herbert Hoover. However, the IRS was deluged by refund requests, often with a copy of the Essence article attached. A legend had been born. Incredibly, the IRS paid out tens of millions in such refunds before realizing its mistake.

The black-tax theory is based on a mix of bad historical and legal knowledge. The promise of 40 acres and a mule was never an enforceable obligation by the government. In 1865 Gen. William Tecumseh Sherman signed Special Field Order No. 15, which made the promise. The basis for the promises was dubious because the land was largely confiscated. Government officials at the time argued that the ex-slaves could live and work the land for three years and then buy it. The ex-slaves and others viewed the land as payment for their bondage.

Within months 40,000 ex-slaves occupied 300,000 acres from South Carolina to Florida. President Andrew Johnson then rescinded the order and allowed the original owners to reclaim their land — leaving a wound that remains open today. While there were attempts to pass a law returning the land to the ex-slaves, the law was barred by Johnson, and no formal bill was signed.

This would have remained an arcane academic debate if Essence hadn’t published what amounted to a “how to” on tax fraud, playing into the hands of unscrupulous tax preparers who promised windfall refunds. In just one church, a preparer persuaded more than 1,500 people to give him $200 each to secure the refund. A few weeks ago, two people were charged in Mississippi for allegedly promising rebates of $43,209. People allegedly paid them between $25 and $6,500 for such tax advice. Ultimately, 6,300 African Americans were defrauded of $1.1 million.

Yet despite articles exposing the fraud and citing penalties, the legend just won’t die. In 2001 the IRS received more than 80,000 returns demanding $2.7 billion in refunds — most asking for $43,000. Amazingly, the IRS mistakenly paid out at least 130 such refunds in 2000 and 2001 — equaling $30 million.

While people often receive a warning from the IRS and drop the issue, others have received $500 fines and some have been prosecuted. However, most promoters have faced only fines and orders barring them from doing future work on tax returns.

Highly suspect lawsuits have been filed for reparations with the public support of black leaders, who insist that African Americans are entitled to such payments as a legal matter. Moreover, few black leaders have publicly denounced the concept of a black tax or warned citizens against participating in such filings. Instead, some leaders at a D.C. reparations conference a few years ago encouraged African Americans not to file a tax return at all — under a claim of immunity as descendants of former slaves. This has created the perfect environment for those eager to profit from the lingering sense of injury among black Americans, particularly among those who mistake political rhetoric for legal entitlement.

As for Essence, it has never fully apologized for its role in the creation of this fraud. A few years after the scam took flight, the magazine ran a brief reference to the article and noted “although many historians” supported the claims, the IRS did not. Economics consultant L.G. Sherrod reappeared as Lena Sherrod, who now advises people on their “economics” as finance and careers editor at Essence.

As for the Fosters, the scam is over, but the myth of the black tax continues. Of course, the myth did not appear spontaneously in the District or any other place. It required a mix of reckless political activism, bad journalism and outright fraud. Tragically, the victims of this fraud are black Americans who have been and continue to be ripped off by those who seek popularity or plunder at any price.

From Adultery to Polygamy: The Dangers of Moral Legislation

The Washington Post
September 5, 2004 Sunday

HEADLINE: Of Lust and the Law

BYLINE: Jonathan Turley

BODY:

Last month, John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage. Like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens.

These morality laws go back to the church-based “bawdy courts” of 13th-century England. Yet, the Bushey case illustrates that there are prosecutors today who remain eager to perform this quasi-ecclesiastical role — to publicly defend the institution of the monogamous marriage, and the unwed, from the ravages of lust and desire. Because these are often unrecorded misdemeanor cases, the specific number of prosecutions is impossible to determine. However, the Bushey case is far from unique. Since 1980, adultery cases have been recorded from Alabama to Massachusetts to Pennsylvania. And in 2003, Georgia prosecuted an anti-fornication case.

This latest adultery prosecution, in a county circuit court in Virginia, should motivate us to finally ban our American version of bawdy courts and force ambitious prosecutors to focus on our courtrooms rather than our bedrooms.

For 32 years, John Bushey, 66, served as the attorney for Luray — a small Shenandoah Valley town of 4,500 people. He had been married for about 18 years to Cindy Bushey, the town’s clerk. John Bushey, however, had an affair with Nellie Mae Hensley, 53, and after the affair ended, Hensley seemed to prove the adage “scratch a lover, find a foe.” Instead of going to the betrayed spouse or to her minister, she went to the police. While Hensley was divorced, Bushey was married and therefore subject to a criminal adultery charge, a misdemeanor.

The Bushey case seemed like the perfect vehicle to get the U.S. Supreme Court to finish work that it began in the 2003 case of Lawrence v. Texas, when the Court struck down anti-sodomy statutes. At one point, Bushey agreed to pursue such a course, and the American Civil Liberties Union took up his case. He kept changing his mind, however, first pleading guilty, then withdrawing the plea and pledging to fight as a matter of principle. Finally, in August, he surprised many observers by accepting 20 hours of community service as punishment for his offense. (His former lover publicly expressed outrage that Bushey would not receive a criminal record for his adulterous affair with her.)

Unfortunately, with his last-minute acceptance of punishment, Bushey implicitly accepted that the state of Virginia has a right to punish him for his moral failings. The far more important question is not Bushey’s faithfulness to principle (or to marriage), but the continuation of this archaic criminal provision, which also exists in Maryland and the U.S. military. (Such a law was recently repealed in the District.) The prosecutor in Bushey’s case, Assistant Commonwealth’s Attorney Glenn Williamson, staunchly defends the state’s interest in prosecuting adulterers. When a former lover comes to the police, he insists, the state must prosecute. His rationalization is baffling since, according to studies, he could throw a stick on any corner and probably hit a couple of adulterers.

A famous 1953 study by Alfred Kinsey found that 50 percent of married men and 26 percent of married women had engaged in adultery by age 40. A recent study by Ball State University reported that women under 40 have caught up to men in adulterous affairs. Other studies have shown that between 5 to 15 percent of married couples have “open marriages.” If Virginia were going to prosecute evenly, untold married couples in the state could be subject to prosecution when a former lover opted for the satisfaction of a public charge to heal private injury.

Imagine the work for the courts if prosecutors vigorously enforced the laws against fornication, which is generally defined as premarital sex — a crime that a 1988 study found was practiced by more than 75 percent of women and more than 80 percent of men by the age of 19.

Williamson stressed that he had prosecuted other adulterers and was grateful that “as far as general deterrence, it should now be widely known that adultery is a crime in Virginia.” It is certainly widely known after Williamson has hoisted some wretch for all unfaithful spouses to contemplate. But is it right?

With the medieval bawdy courts, the Anglican Church tried the unfaithful and imposed criminal punishments for “whoredom.” At least six adulterers were executed in England. Since women were viewed as the property of their husbands, these cases were often tried as matters of theft or trespass to chattel. Bawdy courts were embraced by such organizations as the Society for the Reformation of Manners, which supplied the dirt on the unfaithful during the 17th and 18th centuries. These cases were called “criminal conversation” and were uniformly brought by cuckolded husbands. Notably, criminal conversation laws were repealed around the time that women were given the ability to bring such lawsuits in England in the 18th century.

When the Puritans landed in the New World, they wanted their own bawdy trials. There were no church courts, but most states eventually passed laws criminalizing an assortment of private consensual conduct ranging from sodomy to fornication to adultery.

In the Colonies, adultery was once a capital crime and there are at least three recorded cases of people who were executed for adultery, and others were branded with an “A” on their foreheads. (At least one other adulterer, Thomas Newton, escaped in Connecticut shortly before his hanging). Women were routinely stripped to the waist and publicly whipped. In many cases, the convicted were given heavy fines and shaming punishments. A common shaming punishment (taken from England) was recorded in a 1640s Virginia case: the unfaithful were ordered “to stand in the middle of the . . . church upon a stool in a white sheet, and a white wand in their hands, all the time of divine service and shall say after the ministers such words as he shall deliver unto them before the congregation there present and also pay the charges of the court.”

While bawdy courts once mandated harsh punishments for adultery, today’s laws generally have lesser sentences of up to a year in jail and small fines.

It should be obvious that such laws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence, but the Court did not actually set these laws aside when it ruled anti-sodomy statutes unconstitutional, even though it stressed that anti-sodomy laws further “no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” While the Court did not address anti-fornication or adultery statutes, the dissenting justices specifically noted that the decision placed such laws in jeopardy. Self-described “morality advocates,” however, have resisted. Thus, Virginia cannot criminalize the act of sodomy between consenting adults but can often prosecute the same adults for having sex in any form under the adultery law.

Del. David B. Albo (R-Fairfax), who is in charge of streamlining Virginia’s criminal code, doesn’t approve of outsiders tampering with morality laws. The Lawrence decision, he complained, is “a perfect example of how the Supreme Court is inserting its own views into Virginia law.” Of course, Albo appears to have less of a problem when inserting his own moral views into the bedrooms of Virginia adults. Virginia, which is seeking to repeal its anti-fornication and anti-sodomy statutes, decided to keep adultery a crime.

Del. Brian J. Moran (D-Alexandria) insists that adultery must remain a crime because “adultery is wrong, and we were not going to eliminate a criminal action even though it has been infrequently prosecuted.” While many would agree adultery is wrong, there are plenty of things that are “wrong” but not crimes, such as betraying boyfriends or girlfriends in unmarried but monogamous relationships. Finally, the law is currently applied in a ridiculous fashion with only Bushey and a few others pulled out for prosecution from a virtual sea of adultery.

The real reason these laws go unchallenged appears to be self-serving politics. Joseph F. Murphy Jr., chief judge of the Maryland Court of Special Appeals and chairman of a committee to overhaul the Maryland code, put it bluntly. “You can imagine what would happen if you tried to take adultery off the books at this point. You would have a large group of people who would complain bitterly about it as another example of that state losing its moral compass.”

It takes courage to take such an action — something apparently in short supply in Virginia, Maryland and some other states.

Citizens should be able to police their marriages without the help of the Commonwealth of Virginia or the other 23 states. These laws have not deterred many adulterous spouses. They invite arbitrary prosecutions in courtrooms replete — it is statistically certain — with adulterous prosecutors, cops, jurors, clerks or judges.

And, these same courts are inundated with divorce cases of proven and admitted adultery by individuals who are never prosecuted — making such prosecutions as random as a societal drive-by shooting.

Since the days of the bawdy courts, women are no longer deemed chattel and towns no longer maintain a “whore’s chair” for public humiliation of adulterers and fornicators.

Bawdy courts have no place in a nation that cherishes individual choice and privacy. Let’s put an end to them — and leave morality prosecutions as a matter of historical interest for 13th-century scholars.

Right Goal, Wrong Means: A Vote for the District of Columbia

The Washington Post
December 5, 2004 Sunday

HEADLINE: Right Goal, Wrong Means

BODY:

Many D.C. citizens have been elated to hear about a plan to make the city into a congressional district — without the need for a constitutional amendment. That’s understandable. Residents of the District are in the unenviable position of paying taxes and yet having no true voting representative in Congress. However, the plan, known as the District of Columbia Fairness in Representation Act, would achieve a noble goal by ignoble means.

The bill, the brainchild of Rep. Thomas M. Davis III (R-Va.), chairman of the Government Reform Committee, would expand the number of House members from 435 to 437 to allow for a congressional district in Washington. To satisfy Republicans, Davis’s bill also would give Utah an additional district.

Utah, which fell just a handful of citizens short of another congressional seat in the last census, is expected to get an additional district as a result of the 2010 census. Under Davis’s plan, it wouldn’t have to wait.

Davis appears to genuinely favor a voting member for the District, and he saw an opportunity for a trade. “I don’t feel it’s a sign of weakness in our system to have to consider politics as part of the process,” he said. “Political considerations are neither good nor bad, they simply are.”

However, in matter of constitutional interpretation, politics is a poor substitute for principle. One of the greatest burdens of being a nation committed to the rule of law is that how we do something is as important as what we do. The Davis proposal would subvert the intentions of the Founders by ignoring textual references to “states” in the Constitution as the sole voting members of the houses of Congress. It also would create a city of half-formed citizens who could vote in the House but not in the Senate.

The controversy began almost 222 years ago with a riot. On Jan. 1, 1783, a large group of Revolutionary War veterans marched on Philadelphia, demanding their long-overdue back pay. Congress demanded that Pennsylvania turn out the militia to quell the rioters, but it refused. Congress then fled, first to Princeton, N.J., then to Annapolis and ultimately to New York City.

By the time congressional leaders gathered again in Philadelphia in 1787 to draft a new Constitution, one issue was prominent on many legislators’ minds: the creation of a federal district for the seat of government that would not be a part of any state. The members of Congress wanted to avoid, in the words of James Madison, the unwarranted “imputation of awe or influence” afforded to the host state of a permanent capitol.

The result was Article I, Section 8, of the Constitution, which created a federal enclave exclusively under the authority of the federal government. Virginia and Maryland agreed to pony up land for the enclave, which was gratefully accepted by Congress in 1790. Later, Congress gave some of Virginia’s land back. (The caged stones marking the original parameters of the federal district still can be seen in Northern Virginia.)

Not only does the Constitution not give the federal district a voting member in either house, it created the District precisely to be a non-state under the authority of the states represented in Congress. Article I, Section 2, specifies that members of the House are to be chosen “by the People of the several states.” Likewise, Article I, Section 3, refers to a Senate composed of two senators “from each state.” The makeup of these houses was a delicate balance, and it was a primary focus of the Constitutional Convention.

While the courts have recognized that Congress could give the District many of the same institutions and procedural rights as states, they have never suggested or ruled that Congress can create a new, fully voting member of Congress without a constitutional amendment. Indeed, when Congress wanted to give D.C. residents a voice in the election of the president, it passed the 23rd Amendment, ratified in 1961. That change notably gave the District electoral votes to which it “would be entitled if it were a State.”

Now, after failing in 1978 to ratify a similar amendment on voting rights for the District in both houses, voting-rights advocates want to avoid the constitutional process through a simple vote in Congress. Thus the Davis proposal becomes a celebration of contemporary politics over constitutional principle.

The way to achieve full representation for citizens of the District is to return the city to Maryland and reduce the federal enclave to the core of Capitol Hill and a few of its closest blocks. That is precisely what occurred when the Virginia land taken for the District was “retroceded” to the commonwealth in 1846.

Of course, strong political forces in the District and Maryland would not support retrocession. For one thing, Robert L. Ehrlich Jr. likely would be the last Republican to hold the governorship of that state for some time. Yet before we create hybrid constitutional entities, we should use the most obvious vehicle for giving voting rights to D.C. citizens without a constitutional amendment.

The amendment and retrocession processes are hardly easy, but, to paraphrase Davis, such constitutional considerations “are neither good nor bad, they simply are.”

The Return to Separate But Equal

The Washington Post
February 13, 2005 Sunday

HEADLINE: Good Intentions Aside, Separate Still Isn’t Equal

BYLINE: Jonathan Turley

BODY:

Few legal doctrines are more dangerous or despised than that of separate but equal rights — the philosophy that legitimized racial apartheid in the United States. It took the sacrifices of the civil rights struggle to put an end to both this doctrine and the officially sanctioned segregation that it justified.

Yet only months after the nation celebrated the 50th anniversary of Brown v. Board of Education — the landmark Supreme Court decision that struck down the doctrine as unconstitutional — some public and private institutions are again dabbling in separate but equal policies.

Two examples highlight this insidious trend. The first comes in the very area in which the battle for civil rights was waged most fiercely decades ago — the schools. It involves a New York City high school created specifically for gay and lesbian students two years ago.The second concerns the California prison system, whose 25-year policy of strict racial segregation of incoming prisoners has been challenged in a case now pending before the U.S. Supreme Court.

Both plans are being vigorously defended on pragmatic grounds — arguments long used by segregationists. From the court’s first articulation of the doctrine in 1896, separate but equal was always an exercise of pragmatism over principle. Rather than confront racial animus, society chose to yield to it — to achieve the appearance of racial coexistence through racial separation. While there are clearly differences between the old segregationists and the new (particularly in terms of their motives), there remain striking similarities in their methods.

New York’s Harvey Milk High School was created with the best possible intentions. Named for the assassinated San Francisco gay rights leader, it was meant to provide a sanctuary for gay and lesbian students who face tremendous pressures and even violence in many schools.

Gay rights activists have long modeled their work on the civil rights movement. But such civil rights leaders as Martin Luther King Jr. and Thurgood Marshall steadfastly refused to accept segregation in public schools — even though thousands of black students faced violence in desegregated systems. They understood that, to be truly equal, blacks had to be assimilated into every aspect of American life, even if the objective could only be reached after a period of painful confrontation.

Much like the integration of black students into white schools, the rise of a new generation of openly proud gay and lesbian students has led to greater tensions in New York schools. The city’s response was to essentially remove the victims and call it an act of reform. Mayor Michael Bloomberg defended the policy on the grounds that a separate school “lets them get an education without having to worry.” Yet, in classic civil rights terms, it is hard to see how removing gay students is any more a solution to homophobic violence in New York schools than removing James Meredith would have been a solution to racial violence at the University of Mississippi.

Harvey Milk — or Gay High, as it is often called — has become a lesson in the unintended consequences of segregation. Its creation reinforces the stereotype of gay students as fundamentally different and in need of special treatment. Some have suggested that the $3.2 million spent to establish the school could be better used to create a systemwide program of counseling and education for all students on the issues of sexual orientation and discrimination. In a city with roughly 300,000 public high school students, Harvey Milk’s 100-student capacity can handle only a small fraction of the city’s gay, lesbian, bisexual and transgender teenagers. The remainder must deal with the stigma of a segregated group and predictable taunts that they should “go to Harvey Milk,” where they belong.

On America’s other coast, California provides a second example of a separate but equal policy. The state prison has sought to control violence and reduce gang activity by temporarily segregating incoming prisoners on the basis of race. Hispanic prisoners from Southern California are separated from those from the north; Japanese and Chinese inmates are kept apart; and smaller groups — Laotians, Vietnamese, Cambodians and Filipinos — are segregated as well.

Other large states such as Illinois and New York face similar gang demographics, but none has adopted this sort of automatic segregation. California’s policy of yielding to racism rather than fighting it began almost three decades ago with small concessions, and escalated into a systemwide policy of apartheid for convicts entering any prison. In 1999, when tensions between northern and southern Hispanics erupted into riots at Pelican Bay State Prison, the standard response of corrections professionals elsewhere would have been to crack down on the inmates with a policy of zero tolerance of violence. Instead, California solved the problem by sending each group to its own prison, where it could reign as the dominant Hispanic gang.

Despite the fact that this racial segregation policy has been in place for 25 years, California prisons continue to convulse with racial violence. In 2002, there were about 7,000 incidents of assault and battery and seven deaths — the vast majority linked to racial gangs.

Officials insist that the violence would be worse without segregation for new prisoners. The federal appellate court in San Francisco agreed last year, rejecting a challenge from Garrison Johnson, a black prisoner who refused to join a gang and felt more threatened in a segregated environment. Using a test heavily weighted in favor of the prison, the court demanded that Johnson prove the impossible — that violence would not occur in cells if the policy were lifted. Officials insist that they are just dealing with the realities of racial gangs and their mutual hostility. One prison official observed that “if we have a Northern Hispanic with a Southern Hispanic, they already have a conflict before they come to prison” and the best thing is to simply give them their own space. It is the very logic that the Supreme Court used when it created the separate but equal doctrine in Plessy v. Ferguson, saying the Constitution did not require “a commingling of the two races upon terms unsatisfactory to either.” Integration, the court said then, would have to be “the result of natural affinities, a mutual appreciation of each other’s merits and the voluntary consent of individuals.” It seems unlikely that the white skinheads, black Crips, and Hispanic Fresno Bulldogs will achieve “mutual appreciation” any time soon.

The decisions to embrace separate but equal policies in a high school and a prison system are telling and tragic. Both schools and prisons represent controlled environments that strive in part to shape future conduct through compelled behavior and observation. High schools are the last such environment before most individuals join the larger society — they are the critical forum to teach not just basic curricular skills but basic citizenship skills. Removing gay and lesbian students allows prejudices and intolerance to continue unnoticed and unaddressed, permitting hateful students to become hateful adults.

Prisons are populated by certifiably asocial individuals, who failed to learn basic social principles and values. As a controlled and supervised environment, the prison is supposed to reinforce social rules of conduct through compulsory measures. The segregation policies of the California prisons not only leave racist and violent impulses unaddressed, they actually reinforce those impulses by yielding to them. A segregated prison is fertile ground for gang recruitment.

Equally disturbing is the growing level of “self-segregation” in institutions where there is no claim of racial violence or intolerance. Some colleges and universities now hold official and separate graduation ceremonies for certain minority groups; a growing number have created separate housing aimed specifically at minorities. The University of Pennsylvania houses almost one-quarter of its African American students at the W.E.B. Du Bois College House, and other schools including the University of Michigan and Dartmouth College have similar options. In a rhetorical echo of the Plessy decision, the segregated dormitories at Dartmouth are called “affinity houses.”

While many of these are voluntary choices by the students, such self-segregation still frames the academic experience in at least partially racial terms. This lesson was not lost on one Latino student at Amherst College, who was quoted in a report by the New York Civil Rights Coalition as saying: “Before I came to Amherst, I wasn’t thinking about race or class or gender or sexual orientation, I was just thinking about people wanting to learn.”

The resurrection of separate but equal is not some reflection of its inherent truth or merit. Rather, it is a reflection of a society that has increasingly favored the most expedient over the most ethical means of addressing contemporary problems. The separate but equal doctrine was the very scourge of the civil rights movement, but it continues to have pragmatic appeal — certainly over the more abstract principle of integration. After all, principle is often quite costly while pragmatism offers at least the outward appearance of tranquility at a bargain price. However, as new citizens walk out of places like the New York schools and California prisons, society may rediscover not just the convenience but the costs of separate but equal programs.

Celebrity Justice and the Case of Michael Jackson

June 19, 2005 Sunday
HEADLINE: Michael, Meet Fatty. And Errol and Martha and . . .

BYLINE: Jonathan Turley

BODY:

“Not guilty by reason of celebrity,” was one common reaction to last week’s acquittal of Michael Jackson on all 10 counts against him. The notion of “celebrity justice” — as distinct from conventional justice — has taken hold across America. Indeed, it has its own show, the syndicated “Celebrity Justice,” and there are self-described “celebrity justice correspondents” at Fox News and CNN. (CNN features two to handle the occasional sensational overload.) The cottage industry built around celebrity trials is based on the flawed assumption that the rich and famous are given free rides by jurors or simply prevail because of their ability to assemble dream teams of high-priced attorneys. Yet, these trials are different in other respects. For attorneys, the rules are often reversed from conventional criminal trials on such questions as when to put defendants on the stand or whether to attack victims.

One of the first to receive the label “Trial of the Century” was the 1921 trial of film star Roscoe “Fatty” Arbuckle for allegedly raping and killing showgirl Virginia Rappe. The trial was one of the first glimpses into the celebrity Babylon of Hollywood, ranging from Arbuckle’s bacchanalian parties to his custom-made Rolls-Royce with a toilet installed in the back seat.

After three trials, Arbuckle was acquitted and the jury even apologized for the “great injustice . . . done him.” But it was too late for the public. Fatty got us hooked, and we are still trying to get that voyeuristic monkey off our backs. A stream of celebrity cases followed, revealing the often sordid lives of the celebrity class. Among them was the 1958 murder inquest of Cheryl Crane (movie idol Lana Turner’s daughter). The public was fixated on the life of Turner who was abused by her over-sized mobster boyfriend, Johnny Stomponato — until, that is, the 14-year-old Crane plunged a 10-inch carving knife into his chest. Today we have Jackson. With an audience of 30 million television viewers, Jackson’s verdict was the most popular thing the singer has produced in years.

Most celebrity trials have a notable common element: They result in acquittals. But to suggest that acquittal is the inevitable outcome ignores the fact that many celebrities plead guilty to avoid damaging trials. Despite his acquittal, Arbuckle was ruined from the trial exposure, while celebrities such as Robert Mitchum and Hugh Grant pleaded guilty and went on to leading roles. Indeed, some of the best-known accused celebrities never faced a jury: Mitchum (marijuana possession) ; Pee-wee Herman (indecent exposure); Robert Downey Jr. (drug possession); Christian Slater (assault and drug possession); Paula Poundstone (child endangerment); Marv Albert (battery); Hugh Grant (solicitation).

The high acquittal rate also reflects the fact that celebrity trials present unique elements that are ignored at the peril of either the prosecution or the defense. For criminal defense attorneys, celebrity trials can seem like a parallel universe where conventional rules and tactics are reversed.

Take, for example, the general disinclination to put a defendant on the stand. In most cases, the risks are simply too high for a defendant. For celebrities, however, the failure to take the stand can come at a much higher cost, as shown by Martha Stewart, who served time for obstructing an investigation into her sale of ImClone stock.

Prosecutors often portray celebrities as detached, abusive personalities who use people for their conspicuous consumption or enjoyment. By the end of the government’s case, Stewart looked as if she did everything short of beating her underlings with a riding crop — an image that could only be changed by Stewart herself.

Stewart might have been saved if she had taken the stand and shown the one thing that she had resisted her whole life: vulnerability. If she had simply said that she was afraid and confused, it might have saved her. Yet, her complex personality seemed incapable of such a simple defense.

To make things worse, her legal team gave the jury a parade of celebrity friends who sat behind Stewart in public showings of support. She made it abundantly clear that the jurors were not her peers in that courtroom — Rosie O’Donnell, Bill Cosby, Brian Dennehy and the rest of her famous friends were her true peers. Her conviction was sealed because her defense played by the conventional trial handbook and refused to put her on the stand.

Ironically, celebrities are often ideally suited for testimony. They are not only natural actors but, like Stewart, people who actively market themselves to the public. For example, when Errol Flynn testified at his 1942 statutory rape trial, he turned the tide after the introduction of truly damning evidence. The swashbuckling actor was well known as preferring underage girls whom he called his “San Quentin Quails” or JBs (for jail bait).

Likewise, Arbuckle, Crane and Charlie Chaplin all testified and were exonerated. Conversely, when actress Winona Ryder faced shoplifting charges in 2002, she did not take the stand and was convicted.

There are exceptions to this rule. Celebrity defendants O.J. Simpson and Robert Blake were both accused of killing their current or former spouses (as well as a friend in Simpson’s case). Yet, neither could testify without risking that suppressed or excluded evidence could be introduced into the trial. Their acquittals stemmed from other flaws in the cases.

In the case of Jackson, no rational lawyer would have put the notoriously unstable singer on the stand. Wearing pajama bottoms and surrounded by his battalion-size entourage, Jackson could barely hold it together sitting behind the defense table.

For celebrities, the best defense is often offense: putting the accuser on trial. While used in conventional trials with mixed success, this defense has far greater resonance and success in celebrity trials. Jurors tend to be skeptical of people who flutter around celebrities.

In perhaps the most vicious example, Flynn’s lawyers played on his reputation as a rake and attacked the two accusers — Betty Hansen, 17, and Peggy LaRue Satterlee, 15 — as under-aged sirens. The revelation at trial that Satterlee had had a previous affair and later an abortion was all Flynn needed to secure acquittal.

Likewise, Arbuckle’s attorneys attacked Rappe as a woman of questionable morals. Chaplin’s lawyers had it easier in portraying his alleged victim as not only unstable but the real “little tramp”: Actress Joan Barry had allegedly broken into his home with a gun to force a reunion. He testified and was acquitted of the charge of transporting Barry across state lines for sex in violation of the 1910 Mann Act.

In some cases, a victim walks right out of central casting for a celebrity defense. Robert Blake’s wife was a notorious grifter and pornographer. After 20 years of defrauding people, particularly lonely men, you could throw a stick on any corner in LA and hit five people who wanted to kill Bonnie Lee Bakely.

Jackson’s lawyers showed that, if you do not have a grifter victim, an alleged victim’s grifter mother will do. On the stand, the mother admitted that she had made false allegations in a prior lawsuit and neatly fit the profile of a conniving, predatory personality. Even after she pleaded with the jury “don’t judge me,” they seemed not only to judge but to convict her. Indeed, jurors had more to say about her than Jackson after the verdict, including her nasty habit of snapping her fingers at them.

Celebrities can present themselves as open targets for people who want to extort money through false allegations. In Jackson’s case, it was the perfect model of the clueless meeting the unscrupulous. And it provided a narrative that any jury would have appreciated.

The prosecution often offers something more complex and fluid — and ultimately less salient for a jury. In the Simpson trial, the prosecutors fumbled their narrative out of pure incompetence. By putting police officer Mark Fuhrman on the stand, they handed the late Johnnie Cochran the ready-made story of racist cops bent on making a case against an African American celebrity.

Despite the largely circumstantial evidence, the prosecution had a true shot at conviction with Jackson. There are certain celebrities who fit the model of the Marquis de Sade defendant: a personality who has allowed his unrestrained lifestyle and tastes to mutate into perverse passions. Jackson’s bizarre, kabuki-like appearance gave testimony to his alleged perversities. The same can be said for famous “Wall of Sound” rock music producer Phil Spector, whose violent tastes and creepy hairdo seem to scream suspect for his September murder trial.

None of this means the system is incapable of handling celebrity cases. Justice was done with Jackson, who faced a weak circumstantial case and a weak prosecution. As for Simpson, the case was lost by a breathtakingly incompetent prosecution team.

These were not cases of “celebrity justice,” just celebrity trials and conventional justice. In both cases, the prosecution failed to take advantage of the peculiar patterns that shape celebrity trials and played by conventional rules while the defense played by celebrity rules. It was no contest.

Humiliating Punishments and the Abuse of Judicial Power

September 18, 2005 Sunday

HEADLINE: Shame On You;
Enough With the Humiliating Punishments, Judges

BYLINE: Jonathan Turley

BODY:

Shawn Gementera must have known that he would face some kind of punishment after a police officer nabbed him and a friend in the act of stealing letters from mailboxes along San Francisco’s Fulton Street four years ago. While jail or probation might have crossed Gementera’s mind, U.S. District Judge Vaughn R. Walker had a more creative idea. Walker sentenced Gementera to stand outside a post office while wearing a sign that read: “I stole mail. This is my punishment.” Where the judge saw a novel way of conveying society displeasure with mail theft, Gementera’s lawyers saw a violation of the Constitution’s ban on “cruel and unusual punishment.” The U.S. Court of Appeals for the 9th Circuit decided, however, that while the humiliating sentence might be unusual, it wasn’t cruel.

Lately it hasn’t been all that unusual either. The Gementera sentence — taken last month to the Supreme Court — is one of a growing number of “creative punishments” being handed down across the country by judges who want to use shame or humiliation to deter people from committing further offenses. As clever as these punishments might seem, judges are not chosen to serve as parents trying to set consequences for wayward children. Law demands not just consequences for wrongdoing, but consistent consequences. Otherwise citizens are left wondering whether they will receive a standard punishment or one improvised to suit a judge’s whim.

Shaming punishments were common in the United States before the advent of model criminal codes and the development of constitutional limitations in sentencing. While the scarlet letter made famous by Nathaniel Hawthorne’s classic novel about adultery is the best known, it was not the most common. Early sentences often required offenders to endure public displays of guilt by wearing signs or being pilloried in common areas. Adulterers were often required to carry heavy stones around a church or town.

Most shaming punishments were abandoned as either ineffective or unconstitutional. Modern law values the consistent imposition of punishment and frowns upon judges who personally tailor new forms of punishment for particular defendants. What is most dangerous about this recent trend is that, in the name of reforming citizens, judges will impose their own quirky brand of justice by ordering citizens to parade, worship or even marry. Consider a few examples, all from state or local courts:

* In Kentucky, Judge Michael Caperton recently allowed drug and alcohol offenders to skip drug counseling if they agreed to go to 10 church services. A pastor, like a divinely ordained probation officer, signs off on the completion of this obligation.

* In Texas in 2003, Judge Buddie Hahn gave an abusive father a choice between spending 30 nights in jail or 30 nights sleeping in the doghouse where prosecutors alleged the man had forced his 11-year-old stepson to sleep.

* In Georgia last year, Judge Sidney Nation suspended almost all of Brenton Jay Raffensperger’s seven-year sentence for cocaine possession and driving under the influence in exchange for his promise to buy a casket and keep it in his home to remind him of the costs of drug addiction.

* In Ohio, a municipal judge, Michael Cicconetti, cut a 120-day jail sentence down to 45 days for two teens who, on Christmas Eve 2002, had defaced a statue of Jesus they stole from a church’s nativity scene. In exchange, the pair had to deliver a new statue to the church and march through town with a donkey and a sign reading “Sorry for the Jackass Offense.”

* In North Carolina in 2002, Judge James Honeycutt ordered four young offenders who broke into a school and did $60,000 in damage to wear signs around their necks in public that read “I AM A JUVENILE CRIMINAL.” One, a 14-year-old girl, appealed and Honeycutt was reversed.

In a newspaper interview last year, Georgia Judge Rusty Carlisle said he often imposes shaming punishments when defendants seem insufficiently chastened. He cited an early case: a person accused of littering whom Carlisle felt was “kind of cocky.” So the judge gave him a cup and a butter knife and told him to scrape the gum off the bottoms of the court benches as the judge and others watched.

There’s no evidence that creative sentences work better at deterring crime than other punishments. Yet public punishments can be harshest on the most commonly targeted and vulnerable group — young people.

The recent penchant for customized punishments also undermines efforts to make criminal sentencing more uniform. Creative punishments often reflect the cultural character of a state. While an abusive father was given the choice of sleeping in a doghouse in Texas, domestic abusers were forced to attend meditation classes with herbal teas and scented candles in Santa Fe, N.M.

As elected officials, state judges know that few things please the public as much as hoisting a wretch in public. One Texas state judge, Ted Poe, was known as “The King of Shame” for his signature use of punishments like shoveling manure. Poe said that he liked to humiliate people because “[t]he people I see have too good a self-esteem.” Poe was so popular for what he called “Poe-tic Justice” that he literally shamed himself right into Congress and is now serving as a member of the House of Representatives.

In Memphis, Judge Joe Brown became famous for allowing victims of burglaries to go to the homes of the thieves and take something of equal value. When asked about his authority to order judicially supervised burglaries, Brown explained with a hint of amazement that “under Tennessee law it appears to be legal.” Brown eventually took his brand of justice to television as the host of his own syndicated court show.

What distinguishes the Gementera case is that it was a federal judge who imposed the shaming punishment. Federal judges have long been viewed as insulated from this trend — until now. And Judge Walker was upheld by the 9th Circuit Court of Appeals, which noted that “in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction . . . exceeds the bounds of ‘civilized standards’ or other ‘evolving standards of decency that mark the progress of a maturing society.’ ”

But the 9th Circuit Court’s ruling is more a devolution of standards. These novel sentences threaten the very foundation of a legal system by allowing arbitrary and impulsive decisions by judges. A judge is allowed to weigh guilt and impose sentences. Yet it is the legislature that should define the forms and range of permissible punishment for a crime. That’s why it was popular but wrong when North Carolina Judge Marcia Morey recently allowed speeders to send their fines to a charity for hurricane victims rather than to the state. Similarly, Wisconsin Judge Scott Woldt recently ordered Sharon Rosenthal, who stole money from the labor union where she was treasurer, to donate her family’s Green Bay Packers seats to his preferred charity, the Make-A-Wish Foundation. Such measures turn courts cases into private charity pledge drives.

As judges vie for notoriety through sentencing, citizens will be increasingly uncertain about the consequences of their actions. Will it be probation or humiliation? Once you allow judges to indulge their own punitive fantasies, defendants become their personal playthings — freaks on a leash to be paraded at the judges’ pleasure.

These cases betray a disturbing convergence of entertainment and justice in the United States. There has been an explosion of faux-court programs like “Judge Judy,” “Judge Hatchett” and “Judge Joe Brown.” For anyone who knows and values the legal system, these shows are vulgar caricatures that have no more relation to real law than TV’s Wrestlemania has to real wrestling. Yet it appears that some judges long for those Judge Judy moments when they can hand out their own idiosyncratic forms of justice.

If states and Congress do not act, we may find ourselves with hundreds of Judge Browns imposing sitcom justice with real citizens as their walk-on characters. In the meantime, as shaming devices become commonplace and therefore less shameful, and as there are more people walking around wearing special signs, jurists will need to dream up new, more demeaning punishments to make an impression on defendants — leaving both citizens and justice at risk.

The Supreme Court could help reverse this shameful trend with the Gementera case. Of course, even if it does, Judge Walker is unlikely to be seen standing outside the San Francisco courthouse wearing a sandwich board proclaiming “I Was Reversed by the Supreme Court” or “I Imposed Cruel and Unusual Punishment.” In some ways, that’s a real shame.

John Frederick Ames and the Law’s Misuse in a Fatal Fued

October 9, 2005 Sunday
Washington Post: A Faulty Law, a Feud, a Fatality

BODY:

Last month John Frederick Ames, a bankruptcy lawyer from Richmond, was acquitted of the murder of his neighbor, Oliver “Perry” Brooks [Metro, Sept. 17]. It was the latest chapter in a story worthy of William Faulkner that concerns an arcane 1887 law and a state legislature that refused to repeal it.

The dispute that led to Brooks’s death began in 1989, when Ames, who had purchased a 675-acre Caroline County farm from a widow facing bankruptcy, sent his neighbors a registered letter informing them that he was going to build a fence around his property. The letter also said that he was going to charge his neighbors for half the cost of the fence, which amounted to thousands of dollars. Ames said the 1887 law allowed him to bill them for the fence even without their consent.

Ames’s neighbors, who included retirees on fixed incomes, received bills of $6,000 to $45,000. All of them, including Brooks, who was living on $400 a month from Social Security, refused to pay. Ames had billed Brooks $45,000 for his share of the fence. Ames reportedly offered to forget about the $45,000 if Brooks would deed over some of his land, but Brooks refused. The case went through the courts, and in 1991, Ames finally prevailed in the Virginia Supreme Court.

His neighbors then scraped together the money for the fence — all but Brooks, that is, who continued to refuse to pay. Ames subsequently sued his neighbor for $450,000 for fence damage caused by a bull that Brooks owned. The bull repeatedly broke the fence and strayed onto Ames’s cattle farm. Ames called these bull incursions an “intentional disregard” of his rights. Brooks responded with obstinacy and anger.

The bad blood finally boiled over in April 2004, when Brooks’s bull once again strayed onto Ames’s land. Despite court orders barring him from entering Ames’s property, Brooks went to retrieve his livestock. An armed Ames told him to leave the animal. When Brooks brandished a stick he used to herd the bull, Ames shot in the face and then four more times.

Ames said the shooting was in self-defense. But his acquittal by a jury last month on a murder charge on the basis of self-defense isn’t the end of the story. Ames still may get the land that he was seeking from Brooks. He previously sued the Brooks family for $11.3 million in an action that originally cited everything from infliction of emotional distress to terrorism. He recently withdrew that action, but he still has a lien on the Brooks property and an outstanding fence payment that could exceed $150,000 with interest. The Brooks family is suing Ames for wrongful death.

Ames may fit the stereotype of a lawyer who will use any law to his advantage, regardless of the cost to others, but the Virginia General Assembly deserves equal blame for the mess that culminated in the death of a man. It repeatedly failed to repeal the archaic law that allowed the feud to get going in the first place.

When the state Supreme Court ruled in favor of Ames in 1991, it noted that Virginia was out of step with the common-law rule that a landowner’s boundary line is a lawful fence and that a cattle owner is liable for trespass by his animals. Virginia, however, does not impose such liability on livestock owners and allows them to force neighbors to pay toward “fencing out” livestock. Despite the feud and requests for the law to be changed, the legislature did not act. Only after Brooks was dead and Ames was facing a murder charge did it change the law — and then only to exempt landowners without livestock, which would not have protected Brooks.

The common law and most states impose costs on livestock owners for any damage that their animals cause to a neighbor. This sensible “fence-in” approach recognizes that a livestock owner should not be able to impose the cost of his or her enterprise on neighbors.

A fundamental purpose of the law is to reduce conflicts among neighbors by maintaining clear, consistent and fair rules. The Virginia legislature clearly failed in that duty. It may be true that good fences make good neighbors, but the Brooks killing shows that bad laws, like bad fences, make for bad neighbors.

UPDATE: It appears Donald Trump uses the same questionable means to harass home owners.

Buck Fever: Dick Cheney’s Bad Aim and Judgment is Not Unique

February 19, 2006 Sunday

HEADLINE: The Buck (Fever) Stops Here;
Bankety Bankety Bankety Bankety Bankety Bankety

When Vice President Cheney bagged a Republican donor during a quail hunt, he became the first U.S. vice president to shoot someone while in office since 1804 when Aaron Burr shot Alexander Hamilton. But from a legal point of view, the precedent that matters here may not be our third vice president, but rather a hapless Maine hunter named Donald Rogerson.

Whereas Burr pulled the trigger in a duel over honor and politics, Rogerson, like Cheney, shot someone while in search of game. Mistaking a 37-year-old housewife for a white-tailed deer, Rogerson shot and killed her. Locals insisted that the victim (who had recently moved from Iowa) was to blame because she was wearing white mittens during deer season. And a Bangor, Maine, jury cleared him of manslaughter.

No one in authority is talking about charging Cheney with a crime. But Cheney and Rogerson share the ignoble distinction of succumbing to what hunters (and lawyers) call “buck fever.” It is a phenomenon as old as hunting, defined by the Random House dictionary as the “nervous excitement of an inexperienced hunter upon the approach of game.” Yet experienced hunters have also been known to cut down neighbors they have mistaken for bucks, ducks and other quarry.

Buck fever is a recognized defense for negligent hunters, particularly youths. When a teenager shot a local businessman dressed in orange during deer season, he was excused from civil liability because of buck fever, despite the absence of any known species of orange-colored deer.

The law governing hunting accidents has long been controversial. This is the one area where citizens routinely shoot and kill other citizens without civil or criminal penalty — or even the loss of a hunting license. Indeed, most cases of accidental shootings are viewed as reasonable mistakes by hunters and often it is the victim who is blamed for failing to give a hunter a wide berth. Even in the few cases where criminal and civil charges are brought against hunters such as Cheney, they are often tried by a jury of their peers: jurors from communities where hunting and hunting accidents are a way of life.

That’s what saved Rogerson from prison. Karen Wood had only been out in her backyard for a minute, leaving her year-old twin girls in her house, when Rogerson shot her in the chest with a .30-06 rifle. Despite a 4X power scope and a distance of only 188 feet, Rogerson insisted that he mistook Wood for a deer he had seen — though a game warden found no tracks or other evidence.

Putting aside the question of how many biped deer Rogerson had previously encountered, the jury seemed to ignore the fact that Rogerson violated state law, which required him to identify a buck with antlers and to avoid shooting within 300 feet of a house. The case exemplifies the unique deference shown to hunters who maim or kill neighbors. When a hunter in Pennsylvania shot and killed a relative, he was cleared because the victim was making “animal-like movements.”

Hunting accidents stand in sharp contrast to other types of lethal negligence. In areas ranging from vehicular accidents to corporate misconduct, individuals routinely face criminal charges for reckless conduct. In hunting, however, gross negligence is often refashioned as mere “excitement.” Indeed, criminal charges can be downgraded when the killing was done in sport. In Illinois, a judge, while standing in front of his garage, was shot through the throat and shoulder and police treated the matter as “an attempted assassination.” A man finally came forward to admit that he shot the judge while firing at a hawk. His most serious charge? Shooting a bird of prey. He was put under supervision and given a $200 fine.

Hundreds of people are shot each year in “mistaken for game” cases. According to the International Hunting Education Association, in 2004, 41 people were killed and 250 wounded in hunting accidents in the United States. (Down from 91 people killed and 835 wounded in 2000). Unlike Harry Whittington, whom Cheney sprayed with as many as 200 shotgun pellets, the victims are often not even fellow hunters. Judy Moilanen was merely walking her dog in Ontonagon, Mich., when she was killed. Debra Kelly of Osseo, Wis., had her eye shot out by her 13-year-old nephew while she stood in front of her house.

Based on the public accounts of last weekend’s shooting, there’d be a good case to be made that Cheney was negligent. A person is negligent per se when he violates a statutory standard of care, such as the requirement to establish a clear line of fire and confirm a defined game. (This puts aside the fact that Cheney was hunting without a proper state stamp.)

Cheney’s is a classic case of buck fever. There was nothing particularly confusing or unexpected about an individual rejoining a hunting line, as Whittington reportedly did. Rather, it was likely the euphoria of seeking and shooting game that blinded Cheney to the fact that he was aiming at a 78-year-old attorney rather than a six-ounce bird. Medical studies show that hunters often experience a type of physiological frenzy in the presence of game — or its illusion. When shooting a deer, a male’s heart can reach 118 percent of the maximum heart rate. Given Cheney’s heart condition, hunting would seem a poor recreational choice for the vice president.

Cheney’s case reflects a troubling de facto immunity given to negligent hunters. Because of our tradition of hunting, we view people who make lethal use of a firearm as less culpable than those who make lethal use of objects like cars. Texas probably won’t require that Cheney take safety classes or suspend his license. The local county sheriff’s office has already declared the case closed. For his part, Cheney feels no compulsion to promise that the “buck (fever) stops here” and give up hunting.

At least Whittington knows who shot him. Frequently, the culprits in hunting manslaughter cases are never identified. With the expansion of suburbia, it is increasingly common for people to unwittingly enter a line of fire. In 1992, in Leeds, Ala., 22-month-old Ashley Ramage was shot and killed while simply riding between her parents in their truck.

Even in the Washington area, hunters are permitted to hunt game and fowl. Joan Manley, a federal lawyer, was shocked during a morning walk with her two golden retrievers around Jones Point in Alexandria. Alongside the heavily traveled path that runs next to the Potomac, two hunters sat with loaded shotguns in a boat resting on the shoreline; they were after ducks. Two Alexandria police officers confirmed that the men had a proper license and were expected to avoid joggers and bird watchers.

If they had failed, they could have expected no worse punishment than Cheney has received. As long as we continue to treat buck fever as a defense rather than an offense under civil and criminal laws, it’s best to leave the white mittens i

Defaming the Dead

September 17, 2006 Sunday

Elvis Presley was a pedophile. Queen Victoria, a lesbian. Abraham Lincoln, a gay adulterer. Winston Churchill, a murderous conspirator.

These are all “facts” published in recent years about famous people, and in each case such claims would normally bring charges of libel per se — a legal term signifying defamation so serious that damages are presumed. However, these statements also share one other important element: They were all published after the subjects had died. As a result, the publishers are protected by the longstanding rule that you cannot defame the dead (which, in practical terms, means you can). Once Elvis has left the living, you can say anything you want about him. No matter how malicious, untrue or vile.

Indeed, while most people are raised not to speak ill of the dead, the law fully supports those who do. Under the common-law rules governing defamation, a reputation is as perishable as the person who earned it. It is a rule first expressed in the Latin doctrine actio personalis moritur cum persona (“a personal right of action dies with the person”). The English jurist Sir James Stephen put it more simply in 1887, “The dead have no rights and can suffer no wrongs.” In other words, you’re fair game as soon as you die — even if writers say viciously untrue things about you and your life.

The question of whether the dead can be defamed came up recently in a most unlikely way: The family of John Dillinger sued over a depiction of the famous bank robber at the John Dillinger Museum in Hammond, Ind. The museum describes Dillinger as a cop killer, but his relatives note (correctly) that Dillinger was only charged with killing a police officer during his robbery of the First National Bank and Trust in East Chicago, Ind., on Jan. 15, 1934. He died before standing trial.

Disputes such as that over Dillinger — his family, unable to sue for defamation, had to rely instead on a state law that protects public figures from the commercial use of their images — serve mostly to remind us of the grossly unfair and unnecessary rule that allows people to savage the reputations of the dead.

Dillinger’s is only the latest, and far from the greatest, of such post-mortem injuries. Filmmakers and writers in past years have reinvented figures as varied as turn-of-the-century populist William Jennings Bryan, mid-century heartthrob Gary Cooper and President Richard M. Nixon to better fit a storyline — putting out false images that often become “fact” in the popular imagination. Without legal protection, such figures are subject to all matter of creative revisionism, and their families must live with whatever name and reputation they have left once the scriptwriters and biographers are done.

Through the years, many states have considered changing this rule, but have not acted. In New York, the issue came to a head in 1987, when Tawana Brawley, a black teenager, falsely accused a prosecutor, a New York police officer and a state trooper of a racist attack and rape. With people such as Al Sharpton calling the accused men racists and rapists, their reputations were utterly destroyed. The innocent police officer, Harry Crist Jr., was implicated after committing suicide. When a grand jury rejected Brawley’s claims, it took the highly unusual step of recommending that the state pass a law protecting the dead from such knowingly false statements. New York never did.

Allowing some protection for the deceased would not end historical critiques and articles. Many countries protect the reputations of the dead but have not seen a flood of defamation cases in court.

Without such protections, the dead are readily converted into madmen or murderers. Consider the character assassination of First Officer William McMaster Murdoch in the 1997 movie “Titanic.” The movie portrays Murdoch as a nut who shoots a passenger and then himself. However, not only was no one known to have been shot that night, but survivors identified Murdoch as one of the great heroes of the tragedy — giving his lifejacket to a passenger and then remaining on board to drown. (After historians and relatives objected, the studio sent a $5,000 check to Murdoch’s town of Dalbeattie, Scotland, for a scholarship fund.)

The family of the former heavyweight boxing champion Max Baer has a similarly legitimate complaint against director Ron Howard and the makers of the 2005 blockbuster movie “Cinderella Man.” It demonized Baer as the killer of two men in the boxing ring (he killed one man) and claimed he committed such notorious acts as bragging to opponent Jim Braddock’s wife, Mae, that he would kill her husband and then sleep with her.

There was no such outrageous encounter with Mae Braddock, and many have insisted that rather than boasting about killing Frankie Campbell as portrayed in the movie, Baer was haunted for the rest of his life by the death. Baer’s son, Max Baer Jr. (who played Jethro on “The Beverly Hillbillies”) told me that his father had nightmares about it and that he raised considerable money for Campbell’s family. Jeremy Schaap, who wrote the book “Cinderella Man,” told me that Baer went into an emotional “tailspin” after killing Campbell and lost a couple of fights because he refused to finish off opponents out of fear of another fatality. As for the scene with Mae Braddock, Schaap says adamantly, “It is totally made up.” (Baer, who was one-quarter Jewish, was probably best known for fighting with a Star of David on his shorts to protest rising anti-Semitism — a particular slap at Adolf Hitler when Baer defeated Germany’s Max Schmeling in 1933.)

If there were any threat of a defamation lawsuit, the studio lawyers would never have allowed such false portrayals. Indeed, ABC recently edited out material from its docudrama “The Path to 9/11″ after attorneys for Clinton administration officials objected to inaccurate portrayals, including fabricated scenes. The problem was not that ABC falsely portrayed former national security adviser Samuel R. “Sandy” Berger as hanging up on CIA agents who were poised to kill Osama bin Laden. The problem was that Berger is still alive. (The scene was dropped.)

But Murdoch and Baer were long dead, so their reputations rested entirely on the self-imposed decency of the writers and directors — and in Hollywood, that means they were cinematic chum.

Publishers are often no better. Books purporting to tell all are often held until after the subject dies — leaving the family without legal recourse. Thus, the widow and children of Gary Cooper could only complain about the book “Cary Grant: The Lonely Heart,” in which authors Charles Higham and Roy Moseley claimed that Cooper was a Nazi sympathizer who “in 1938 would go to Berlin and be entertained by Hitler” — suggesting that Cooper partied with a genocidal killer. There is no evidence of any such meeting, and Cooper’s family insists that he neither met Hitler nor harbored any Nazi sympathies. Errol Flynn’s relatives sued Higham over his claim that Flynn was a Nazi spy. They lost under the common-law rule.

It would be relatively simple to draft a law to add protections for writers and publishers. States could extend the high standard for defamation of public figures to any deceased person — limiting actions to the most egregious violations in which the writer knowingly engaged in a falsehood or showed reckless disregard for the truth. The law could also limit any recovery to a declaratory judgment that corrects the public record and injunctive relief with no monetary damages.

There is an obvious precedent in the protections that most states offer for newspapers that print retractions — laws that could be extended to cases involving the deceased. For example, the New York Times reported in a 2003 obituary that the famous Harlem photographer Marvin Smith had his testicles removed after his twin brother, Morgan, died of testicular cancer in 1993. It was untrue and the Times voluntarily printed a correction.

None of this means that Hollywood should suddenly become the History Channel. The Hollywood view of history has always been more Cecil B. DeMille than Barbara Tuchman. Even a much-acclaimed movie such as “Inherit the Wind” invented scenes and so mutated the character based on William Jennings Bryan that many Americans wrongly believe that he was a bumbling, prejudiced clown. Bryan never testified that he knew the precise day and time that Earth was created — nor did he collapse in a delusional fit in court after the famous evolution verdict.

Yet in most cases, such revisionism involves distorting historical events rather than destroying historical figures. There was no reputation lost when Mel Gibson inaccurately portrayed the Scottish warrior William Wallace fighting to avenge the death of his wife at the hands of the English in “Braveheart.” (The only known account states that Wallace was pushed over the edge after a dispute with English soldiers over fish.) The wildly inaccurate movie, however, crossed the line of decency by suggesting that Princess Isabelle, based on Isabella of France, was an adulterer and that her son, Edward III, may have been fathered by Wallace. The real princess was 9 when Wallace died, she never met him and she bore Edward III seven years after Wallace died.

Just the mention of Oliver Stone pushes most historians into an open rant over films such as “JFK” and “Nixon.” Stone has insisted that he wasn’t doing anything that Shakespeare didn’t do. Yet it seems unlikely that the Bard would have falsely portrayed Pat Nixon demanding a divorce or misrepresenting President Nixon as a stumbling drunk who led a CIA operation to try to kill Cuban dictator Fidel Castro.

After all, it is Shakespeare’s Iago in “Othello” who observes that:

“Who steals my purse steals trash; ’tis something, nothing; . . .

But he that filches from me my good name robs me of that which enriches him

And makes me poor indeed.”

We are all made poorer when good people are trashed after they can no longer defend themselves. With the end of the debate over the permanent repeal of the death tax, perhaps it is time to protect more than just the assets of the deceased. Perhaps it is time to give the dead their due.

Rep. William Jefferson and the Presumption of Innocence

June 7, 2007 Thursday
SECTION: GUEST OBSERVER

LENGTH: 1188 words

HEADLINE: Jefferson Deserves Presumption Of Innocence

BYLINE: Jonathan Turley

BODY:

The 16-count indictment of Rep. William Jefferson (D-La.) this week has produced a spasm of legislative proposals and speeches calling for his expulsion from the House. Frankly, as a longtime critic of Congressional ethics rules, I never thought I would be arguing against an effort to purge or punish an unethical member. However, expelling Jefferson would violate core constitutional principles and likely trigger an intense legal fight. Even Members of Congress deserve a presumption of innocence and their “jury of peers” must remain fellow citizens, not fellow politicians.

Many of us have remarked on the strength of the evidence against Jefferson, including his famous frozen asset problem of the $90,000 found in his freezer. The 95-page indictment details 11 alleged bribery and fraud conspiracies that stretch across Africa.

Yet the merits of the Jefferson indictment are irrelevant to this debate. Expelling a Member before a conviction puts politicians in the role of a jury – meting out punishment in a politically charged environment. With the exception of the carefully structured impeachment proceedings, the framers did not foresee such a role for Members. It would be a dangerous precedent if a majority could declare a colleague presumptively guilty and toss him or her from Congress.

Expulsion before trial also is grossly unfair for a Member who is forced to defend his name in simultaneous proceedings before the courts and Congress. Putting aside the heavy financial burden, Congressional hearings could compromise privileged information or force a Member to waive constitutional rights to make a compelling case against expulsion.

Congress has long recognized those dangers and waited for the judicial system to reach its own conclusions. For that reason, the House waited until 2002 to expel then-Rep. James Traficant (Ohio), who was convicted on corruption charges. The only prior expulsions concerned two Members who were expelled at the beginning of the Civil War in 1861 as traitors.

Ironically, some of the loudest calls are now coming from Republicans who fought efforts of expulsion or punishment in the previous Congress after the indictments of former Majority Leader Tom DeLay (R-Texas) and former Rep. Bob Ney (R-Ohio). Yet, they are not alone. Many embarrassed Democrats supported stripping Jefferson of his powerful committee positions before his indictment and now support an expedited process that could lead to expulsion.

History has shown that public assumptions of guilt often fall short in an actual court of law. Various Members have been unsuccessfully investigated or even prosecuted. Rep. Alcee Hastings (D-Fla.) was acquitted of charges of corruption as a federal judge. While some denounced that verdict, Hastings has now served in the House for 15 years and is viewed by many as someone who has served with distinction.

The Hastings case is a useful point of comparison. Congress waited to impeach Hastings until after his trial. It did impeach despite his acquittal. However, there is a great difference between removing a judge and removing a Representative. Under Article III, federal judges “hold their Offices during good Behaviour.” While the Hastings impeachment was controversial because of his acquittal, it generally was accepted that Congress could impeach him under this authority.

Conversely, it would have been shocking for Congress to try to bar Hastings from service in the legislative branch based on the same evidence.

To expel a Member is to negate the votes of citizens who have a right to select their own representative, regardless of the views of other politicians. In Jefferson’s case, his constituents returned him to office after the details of the investigation were made public. Despite national calls for his ouster, he won 57 percent of the vote in his re-election in November.

The framers were adamant in restricting the authority of Congress to engage in selective pruning of its ranks. During the Constitutional Convention, the framers made reference to a contemporary controversy over the expulsion of John Wilkes from Parliament. Wilkes had publicly attacked the peace treaty with France and, in doing so, earned the ire of Crown and Parliament. After he was convicted and jailed for sedition, Parliament moved to declare him ineligible for service in the legislature. He served anyway, and eventually Parliament rescinded the legislative effort to disqualify him.

The framers feared that, unless Congress was prevented from manipulating its membership, history would repeat itself. Citing the Wilkes case as “worthy of our attention,” James Madison warned that if Congress could engage in such manipulation it would “subvert the Constitution.”

Likewise, Alexander Hamilton noted that “[t]he qualifications of the persons who may choose or be chosen … are defined and fixed in the Constitution, and are unalterable by the legislature.”

This history has helped courts understand the meaning of the Qualifications Clause of Article I, Section 2, which references state laws as setting qualifications for Members. Despite this language and the authority of Congress to punish its own Members, the Supreme Court has stressed that neither the states nor Congress can manipulate qualifications to exclude politicians. As the court noted in U.S. Term Limits v. Thornton, the framers feared that, if the membership of Congress could be manipulated, Congress could become “a self perpetuating body to the detriment of the new Republic.”

At least Wilkes had the benefit of a trial and had served time for his alleged crime. Expelling a Member before conviction would allow such manipulation by majority vote based on popular sentiment or political convenience – an obvious danger when our Congress is divided so closely between the parties. These dangers are magnified in a Congress that is now claiming the unprecedented right to create new voting Members. The House recently passed legislation that would, for the first time in history, create a new type of voting Member in the House – giving the District of Columbia a voting representative despite the fact that it is not a state. With the expulsion effort, Congress would not only be asserting the right to create new voting Members for federal enclaves but also the right to expel other Members suspected of crimes.

Politics ultimately may trump principle on this question. In a Congress under intense public criticism for its failure to pass meaningful ethics reforms, Jefferson has become a useful object lesson for Members to demonstrate their commitment to good government. Suddenly, the House looks like a Claude Rains convention with 435 Members practicing their “shocked, shocked” sound bites.

Jefferson recently resigned his only remaining committee position on the Small Business panel. He has been marginalized and vilified – for good reason. However, the House would do far greater damage to its institution if it yields to the temptation to pronounce guilt before a colleague has had his day in court.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University.

Rep. William Jefferson and the Presumption of Innocence

June 7, 2007 Thursday
SECTION: GUEST OBSERVER

LENGTH: 1188 words

HEADLINE: Jefferson Deserves Presumption Of Innocence

BYLINE: Jonathan Turley

BODY:

The 16-count indictment of Rep. William Jefferson (D-La.) this week has produced a spasm of legislative proposals and speeches calling for his expulsion from the House. Frankly, as a longtime critic of Congressional ethics rules, I never thought I would be arguing against an effort to purge or punish an unethical member. However, expelling Jefferson would violate core constitutional principles and likely trigger an intense legal fight. Even Members of Congress deserve a presumption of innocence and their “jury of peers” must remain fellow citizens, not fellow politicians.

Many of us have remarked on the strength of the evidence against Jefferson, including his famous frozen asset problem of the $90,000 found in his freezer. The 95-page indictment details 11 alleged bribery and fraud conspiracies that stretch across Africa.

Yet the merits of the Jefferson indictment are irrelevant to this debate. Expelling a Member before a conviction puts politicians in the role of a jury – meting out punishment in a politically charged environment. With the exception of the carefully structured impeachment proceedings, the framers did not foresee such a role for Members. It would be a dangerous precedent if a majority could declare a colleague presumptively guilty and toss him or her from Congress.

Expulsion before trial also is grossly unfair for a Member who is forced to defend his name in simultaneous proceedings before the courts and Congress. Putting aside the heavy financial burden, Congressional hearings could compromise privileged information or force a Member to waive constitutional rights to make a compelling case against expulsion.

Congress has long recognized those dangers and waited for the judicial system to reach its own conclusions. For that reason, the House waited until 2002 to expel then-Rep. James Traficant (Ohio), who was convicted on corruption charges. The only prior expulsions concerned two Members who were expelled at the beginning of the Civil War in 1861 as traitors.

Ironically, some of the loudest calls are now coming from Republicans who fought efforts of expulsion or punishment in the previous Congress after the indictments of former Majority Leader Tom DeLay (R-Texas) and former Rep. Bob Ney (R-Ohio). Yet, they are not alone. Many embarrassed Democrats supported stripping Jefferson of his powerful committee positions before his indictment and now support an expedited process that could lead to expulsion.

History has shown that public assumptions of guilt often fall short in an actual court of law. Various Members have been unsuccessfully investigated or even prosecuted. Rep. Alcee Hastings (D-Fla.) was acquitted of charges of corruption as a federal judge. While some denounced that verdict, Hastings has now served in the House for 15 years and is viewed by many as someone who has served with distinction.

The Hastings case is a useful point of comparison. Congress waited to impeach Hastings until after his trial. It did impeach despite his acquittal. However, there is a great difference between removing a judge and removing a Representative. Under Article III, federal judges “hold their Offices during good Behaviour.” While the Hastings impeachment was controversial because of his acquittal, it generally was accepted that Congress could impeach him under this authority.

Conversely, it would have been shocking for Congress to try to bar Hastings from service in the legislative branch based on the same evidence.

To expel a Member is to negate the votes of citizens who have a right to select their own representative, regardless of the views of other politicians. In Jefferson’s case, his constituents returned him to office after the details of the investigation were made public. Despite national calls for his ouster, he won 57 percent of the vote in his re-election in November.

The framers were adamant in restricting the authority of Congress to engage in selective pruning of its ranks. During the Constitutional Convention, the framers made reference to a contemporary controversy over the expulsion of John Wilkes from Parliament. Wilkes had publicly attacked the peace treaty with France and, in doing so, earned the ire of Crown and Parliament. After he was convicted and jailed for sedition, Parliament moved to declare him ineligible for service in the legislature. He served anyway, and eventually Parliament rescinded the legislative effort to disqualify him.

The framers feared that, unless Congress was prevented from manipulating its membership, history would repeat itself. Citing the Wilkes case as “worthy of our attention,” James Madison warned that if Congress could engage in such manipulation it would “subvert the Constitution.”

Likewise, Alexander Hamilton noted that “[t]he qualifications of the persons who may choose or be chosen … are defined and fixed in the Constitution, and are unalterable by the legislature.”

This history has helped courts understand the meaning of the Qualifications Clause of Article I, Section 2, which references state laws as setting qualifications for Members. Despite this language and the authority of Congress to punish its own Members, the Supreme Court has stressed that neither the states nor Congress can manipulate qualifications to exclude politicians. As the court noted in U.S. Term Limits v. Thornton, the framers feared that, if the membership of Congress could be manipulated, Congress could become “a self perpetuating body to the detriment of the new Republic.”

At least Wilkes had the benefit of a trial and had served time for his alleged crime. Expelling a Member before conviction would allow such manipulation by majority vote based on popular sentiment or political convenience – an obvious danger when our Congress is divided so closely between the parties. These dangers are magnified in a Congress that is now claiming the unprecedented right to create new voting Members. The House recently passed legislation that would, for the first time in history, create a new type of voting Member in the House – giving the District of Columbia a voting representative despite the fact that it is not a state. With the expulsion effort, Congress would not only be asserting the right to create new voting Members for federal enclaves but also the right to expel other Members suspected of crimes.

Politics ultimately may trump principle on this question. In a Congress under intense public criticism for its failure to pass meaningful ethics reforms, Jefferson has become a useful object lesson for Members to demonstrate their commitment to good government. Suddenly, the House looks like a Claude Rains convention with 435 Members practicing their “shocked, shocked” sound bites.

Jefferson recently resigned his only remaining committee position on the Small Business panel. He has been marginalized and vilified – for good reason. However, the House would do far greater damage to its institution if it yields to the temptation to pronounce guilt before a colleague has had his day in court.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University.

Boys and Toy Guns

February 25, 2007 Sunday

HEADLINE: My Boys Like Shootouts. What’s Wrong With That?

As the father of four kids younger than 9, I confess to being an overly obsessive and doting parent. I secretly follow my 8-year-old son, Benjamin, when he goes out on his bike, to make sure that he doesn’t ride in the middle of the street. I hover inches over my 18-month-old daughter, Madie, at the playground to make sure that she doesn’t eat sand. I am the very model of the risk-averse parent. Yet for some parents in my neighborhood, my kids and I are the risk to be avoided, even if it means removing their children when we show up at the park. The reason: toy guns.

I first noticed the “shunning” at the most unlikely of events. Each year on Labor Day, my Alexandria community has a “Wheel Day” parade in which hundreds of kids convert their bikes, scooters and wagons into different fantasy vehicles. Last year, we turned our red wagon into a replica Conestoga wagon with real sewn canvas over wooden ribs, wooden water barrels, quarter horse — and, yes, plastic rifles. It was a big hit and the kids won first prize for their age group. The celebration, however, was short lived. As soon as one mother spotted the toy rifles inside the wagon, she pulled her screaming children out of the event, announcing that she would not “expose them” to guns.

I must confess to feeling a mix of deep guilt and even deeper rage at that moment. It was not as though my kids were reenacting the massacre of a Cherokee village; they were simply living out innocent fantasies of the Old West. After some grumbling, my friends and I eventually dismissed the matter as some earth mother gone berserk.

But then it happened again.

My 4-year-old son, Aidan, brought his orange Buzz Lightyear plastic ray gun to “the pit,” as our neighborhood playground is known. As he began pursuing an evildoer — his 6-year-old brother, Jack — around the playground, a mother froze with an expression of utter revulsion. Glaring alternately from Aidan to me, she waited for a few minutes before grabbing her son and proclaiming loudly that he could not play there “if that boy is going to be allowed to play with guns.”

While such “zero-tolerance” parents still seem to be a minority, this is a scene that seems to be repeating itself with increasing regularity. To these parents, my wife and I are “gun-tolerant” and therefore corruptors of children who should be avoided. Not only are such toys viewed as encouraging aggressive behavior and violent attitudes, they are also seen as reinforcing gender stereotypes, with boys playing with guns or swords and girls playing with dolls or cooking sets.

My wife and I are hardly poster parents for the National Rifle Association. We are social liberals who fret over every detail and danger of child rearing. We do not let our kids watch violent TV shows and do not tolerate rough play. Like most of our friends, we tried early on to avoid any gender stereotypes in our selection of games and toys. However, our effort to avoid guns and swords and other similar toys became a Sisyphean battle. Once, in a fit of exasperation, my wife gathered up all of the swords that the boys had acquired as gifts and threw them into the trash. When she returned to the house, she found that the boys had commandeered the celery from the refrigerator to finish their epic battle. Forced to choose between balanced diets and balanced play, my wife returned the swords with strict guidelines about where and when pirate fights, ninja attacks and Jedi rescues could occur.

When I began to research this issue, I found a library of academic studies with such engaging titles as “Longitudinal Stability of Personality Traits: A Multitrait-Multimethod-Multioccasion Analysis.” The thrust was that gender differences do exist in the toys and games that boys and girls tend to choose. The anecdotal evidence in my neighborhood (with more than 60 young kids in a four-block radius) was even clearer: Parents of boys reported endless variations on the celery swords. There seems to be something “hard-wired” with the XY chromosome that leads boys to glance at a small moss-covered branch and immediately see an air-cooled, camouflaged, fully automatic 50-caliber Browning rifle with attachable bayonet.

Many parents can relate to Holley and Warren Lutz, who thought that after their daughter Seeley, they could raise her little brother, Carver, in a weapon-free house. Holley realized her error when she gave 10-month-old Carver a Barbie doll and truck one day. The little boy examined both and then proceeded to run Barbie over repeatedly with the truck. By 2, he was bending his sister’s Barbies into L-shapes and using them as guns.

One of my neighbors, Tracy Miller, a child psychologist and mother of three girls and a boy, found that her son instinctively gravitated toward improvised weaponry from an early age, while her girls, who are temperamentally more assertive, never showed the slightest interest. Miller resolved that it was better to allow this type of channeling of aggression, while keeping tabs on how it manifested itself in her son’s games.

Her view is supported by a recent flurry of studies looking at boys and their development. Michael Thompson, a psychologist and coauthor of “Raising Cain: Protecting the Emotional Life of Boys,” writes that parents often overreact when confronted with toy guns and other games: “Play is play. Violence is violence.” The key is making sure that kids distinguish between the two in their play.

Nancy Carlsson-Paige, co-author of the book “Who’s Calling the Shots?: How to Respond Effectively to Children’s Fascination with War Play and War Toys,” sees it differently. These toys are not the product of natural childhood fantasies, she says, but “really manifest the ideas of adults — of marketing people” who push toys that reflect an adult imagination more than a child’s. Yet Carlsson-Paige, who has long studied the effect of violence in the media on the social development of children, says it is true that guns and war games are a way of helping some children process the plethora of violent images on television, in videos, in the news. When I asked her about my neighborhood toy gun issues, she told me: “If parents ‘ban’ gun play, they run the risk of cutting off a valuable vehicle children need for processing the violence [because] kids use their play to make meaning of what they have experienced in life, and in this case, of the violence they have seen.”

For his part, the late child psychologist Bruno Bettelheim, author of “The Good Enough Parent,” said that there is clearly a gender difference in the toys parents give boys and girls to play with, but he thought that rather than taking guns away from boys, parents should pass them out to girls, who would be served “equally well to be able to discharge their anger through symbolic play, as with toy guns.”

While the zero-tolerance debate about guns and other such toys predated the 1990s, it was greatly accelerated after the 1999 Columbine High School shootings as educators rushed to develop formal policies against weapons (fake or real) in schools. This made obvious sense to most parents — these toys do lend themselves to disruptive games and it can be difficult from a distance to distinguish between real and toy weapons. However, nervous school officials soon began to apply these policies as strict liability offenses where even the most minor violation is treated as a cause for arrest, expulsion or special schooling.

Consider:

{bull} In New Jersey, an 8-year-old boy used an L-shaped piece of paper in a game of cops and robbers during recess. School officials called the police, saying the child had threatened “to kill other students” by saying “pow pow” on the playground. He was held for five hours and forced to make two court appearances before charges were dropped. Two 8-year-old boys were charged with making “terrorist threats” after they were found pointing paper guns at classmates. Charges were later dropped.

{bull} In Texas, a 13-year-old girl was suspended and transferred to a school for problem kids after she brought a butter knife to school with her lunch. Her parents had packed the dull knife so that she could cut her apple to make it easier to eat because she wore braces.

{bull} In Arkansas, an 8-year-old boy was punished for pointing a cooked chicken strip at another student and saying “pow, pow, pow.”

{bull} In Georgia, a 5-year-old student was suspended after he brought a plastic gun the size of a quarter to his kindergarten class.

Even drawing a picture is too close for comfort under these zero-tolerance policies. In Florida, two 10-year-olds were arrested after drawing stick figures considered to be threatening, and in Nevada, teachers tried unsuccessfully to expel a boy for drawing a cartoon of the death of his teacher.

While many people are complaining about such harsh actions and lawmakers are beginning to call for more moderate policies, some parents want zero-tolerance policies extended to playgrounds, parties and other venues. That has put many of us who have a more expansive view of what is acceptable childhood play in the unenviable position of either conforming to a policy that we believe to be excessive or continually triggering confrontations with zero-tolerance parents.

Of course, it is a bit troubling to be seen as a local gun merchant supplying the weaponry of gratuitous violence to our playgrounds. However, we do not believe that play guns and swords are ruining our children. Frankly, after three boys, my wife and I have resolved the nature/nurture debate in our house in favor of nature.

Yet on the playground there seems to be a palpable fear among zero-tolerance parents that boys harbor some deep and dark violent gene that, if awakened, is likely to end years later with some sort of Hannibal Lecter situation. Of course, there are at least 100 million men in this country who probably played with toy guns or swords as children and did not grow up to become serial killers.

As one of five kids (with two older brothers), I grew up in a liberal, no-guns household in Chicago in the 1960s. My mother considered it her duty to smash any squirt gun we brought into the house. In looking back, though, I’m sure that her gun-free policy made us all the more obsessed with the toys. My kids, on the other hand, show no such fixation. They rarely play gun games (sword fights are more common) and are more inclined to hunt for valuable rocks on the playground or convert our best linens into makeshift yurts in the living room.

Still, when their best friend recently invited them to his Army-themed birthday party, it didn’t bother us a bit (though some parents did refuse to let their children attend). In fact, I was struck by how, more than combat fighting, the boys tended to act out scenes involving rescuing comrades or defending the wounded. What I saw was not boys experimenting with carnage and slaughter, but modeling notions of courage and sacrifice. They were trying to experience the emotions at the extremes of human conduct: facing and overcoming fear to remain faithful to their fellow soldiers.

Or, as child psychologist Penny Holland put it in her book, “We Don’t Play with Guns Here,” their make-believe games were “part of . . . making sense of the world [imitating] timeless themes of the struggle between good and evil.” This explanation is probably all the more important in a world filled with violent images of war on television and in the news.

Being a weapons-tolerant parent doesn’t mean I’m thrilled by these games. I would prefer that my sons played nation-builder or rocket scientist. However, before they get to such fantasies, they seem to have to work out more basic emotions in more basic ways. So for a few more years at least, the celery will remain in the fridge and the swords on the playground.

The Duke Rape Case and Prosecutorial Abuse

Lots of Prosecutors Go Too Far. Most Get Away With It.

By Jonathan Turley
Sunday, June 24, 2007; Page B03

It was an extraordinary scene when Michael B. Nifong, the district attorney in Durham, N.C., took the stand to defend his law license after his failed crusade to convict innocent Duke University lacrosse players of gang rape. He had no more success with his own defense. After being disbarred for “dishonesty, fraud, deceit and misrepresentation,” he was suspended from his job last week and now faces a possible lawsuit in civil court.
What’s most remarkable about the whole scene, though, is how rare it is. Nifong’s misconduct was hardly unusual: Some of the most high-profile cases in history have involved strikingly similar acts of prosecutorial abuse. But instead of being punished, the worst violators are often lionized for their aggressive styles — maybe even rewarded with a cable television show.
Nifong is a classic example of the corrosive effect of high-profile cases on a prosecutor’s judgment and sense of decency. Even before the players were indicted, the district attorney had played to the passions surrounding a black stripper’s allegations that she had been raped by affluent white college boys. Nifong called the Duke players “a bunch of hooligans” and promised that he would not allow “Durham in the mind of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham.”
But he had a problem. The accuser kept changing her story, and there was no evidence of a gang rape. In addition to his prejudicial comments, Nifong was accused of withholding test results showing that DNA found on the woman’s body and underwear came from at least four unknown males — but none of the 46 lacrosse team members.
Nifong isn’t the first prosecutor who, in his words, “got carried away” in the glare of television lights. In 1921, the silent-film star Roscoe “Fatty” Arbuckle was tried for the alleged rape and murder of a 30-year-old showgirl named Virginia Rappe during a party in a hotel suite. The San Francisco district attorney, Matthew Brady, faced a situation almost identical to Nifong’s: His chief witness was less than credible.
Rappe’s friend Maude Delmont dramatically described how Arbuckle had dragged Rappe into the bedroom, gleefully proclaiming, “I’ve waited five years to get you.” She insisted that she spoke with Rappe three days later, just before the young woman died (of peritonitis caused by a ruptured bladder), and related the too perfect account of how Rappe yelled, “I’m hurt, I’m dying. He did it, Maude.” In reality, rather than staying by her dying friend’s bedside, Delmont had run to send a telegram to friends that read: “We have Roscoe Arbuckle in a hole here. Chance to make some money out of him.”
It didn’t matter. Brady was hooked. Like Nifong’s conflicting DNA report, the coroner’s report in the Arbuckle case found “no marks of violence . . . and absolutely no evidence of a criminal assault, no signs that the girl had been attacked in any way.” Just as Nifong insisted that he had clear evidence against the lacrosse players, Brady released a statement (soon after receiving the coroner’s report) saying that the evidence “shows conclusively that either a rape or an attempt to rape was perpetrated.” Notably, when Arbuckle was finally acquitted in a third trial, the jury issued a written apology for the “great injustice . . . done him.”
The Duke case also has some striking resemblances to the trial of the so-called Scottsboro Boys. This case of prosecutorial abuse stemmed from a fight on the evening of March 25, 1931, in which a group of black youths threw a group of white boys off a freight train in northern Alabama. When police pulled the black boys off the train, they found two white girls dressed in men’s clothing also riding the train. The girls claimed that they had been held against their will, beaten and raped by the black youths.
Like Nifong, the Scottsboro prosecutors ignored the conspicuous absence of forensic and medical evidence supporting the rape charges — particularly the lack of bruises or torn clothing. (One girl later admitted that they had made up the story to avoid getting in trouble with the law themselves.) All nine Scottsboro defendants were convicted in one-day trials and sentenced to death, with the exception of a 13-year-old boy who was spared death by one holdout juror. (After the Supreme Court intervened and after multiple trials and pardons, the accused were released years later.)
This abuse occurred because the critical safeguard of prosecutorial discretion — the decision whether to pursue a case — didn’t protect the suspects. Despite what you see on television, the chances of being convicted in a criminal case are extremely high. Grand juries are said to be willing to “indict a ham sandwich,” and it’s not uncommon for prosecution offices to have conviction rates of 90 percent or higher. Some prosecutors grow callous and cavalier about their role. When told that he had secured the death penalty against an innocent man, a Texas prosecutor once reportedly boasted that “any prosecutor can convict a guilty man; it takes a great prosecutor to convict an innocent man.”
History is rife with such “great prosecutors” convicting the innocent to satisfy the public. In the 1913 Leo Frank trial, Atlanta chief prosecutor Hugh Dorsey pursued a Jewish factory owner for the rape and murder of 13-year-old factory worker Mary Phagan. It was a period of intense anti-Semitism, with crowds chanting “Kill the Jew” outside the courtroom. Prosecutors ignored the fact that all the evidence pointed to a janitor, Jim Conley, as the killer. Instead, they repeatedly rewrote Conley’s conflicting statements to help him manufacture a coherent account for trial. Conley was identified years later as the killer by a witness, but it was too late for Frank. He was kidnapped from prison by vigilantes (including many leading lawyers) and hanged near Mary’s grave.
Prosecutors are sworn to protect the rights of the accused as well as the accuser, to refuse to pursue cases that would not serve the interests of justice. Yet in today’s environment, it appears that prosecutors can never be too tough, the way models can never be too skinny.
Consider the career of Nancy Grace. Before becoming a CNN and Court TV anchor, she was a notorious prosecutor in Alabama. In a blistering 2005 federal appeals opinion, Judge William H. Pryor Jr., a conservative former Alabama attorney general, found that Grace had “played fast and loose” with core ethical rules in a 1990 triple-murder case. Like Nifong, Grace was accused of not disclosing critical evidence (the existence of other suspects) as well as knowingly permitting a detective to testify falsely under oath. The Georgia Supreme Court also reprimanded her for withholding evidence and for making improper statements in a 1997 arson and murder case. The court overturned the conviction in that case and found that Grace’s behavior “demonstrated her disregard of the notions of due process and fairness and was inexcusable.” She faced similar claims in other cases.
You might have expected Grace to suffer the same fate as Nifong. Instead, she has her own show on CNN, and the network celebrates her as “one of television’s most respected legal analysts.” On TV, she displays the same style she had in the courtroom. (In the Duke case, her presumed-guilty approach was evident early on, when she declared: “I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape.”) The Grace effect is not lost on aspiring young prosecutors who struggle to outdo one another as camera-ready, take-no-prisoners avengers of justice. Grace’s controversial career also shows how prosecutors can routinely push the envelope without fear of any professional consequences. Often this does not mean violating an ethics rule, but using legally valid charges toward unjust ends.
Take the case of Genarlow Wilson. An honors student and gifted athlete, he was preparing for college in 2005 when he was charged in Georgia with aggravated child molestation for having consensual oral sex with a 15-year-old girl.
Though Wilson was only 17, Douglas County District Attorney David McDade and Assistant D.A. Eddie Barker secured a 10-year sentence for an act committed by thousands of teenagers every year. It’s not a crime in most states, and Georgia recently reduced it to a misdemeanor. But the prosecutors are now fighting a judge’s efforts to release Wilson. They can’t be charged on ethical grounds, but they’ve used the criminal justice system to brutalize a young man who should have received a stern parental lecture, not a 10-year prison term.
Nifong’s disbarment may deter some prosecutorial abuse, but until less visible cases are subjected to more scrutiny, it may prove to be an isolated event — driven by the same publicity that led to the abuse in the first place. If the case hadn’t been so high-profile, it’s doubtful that Nifong would have been charged, let alone disbarred, for his misconduct. The Duke case should teach us that a truly fair criminal justice system must strive to protect the rights of the accused as vigorously as it does those of the accuser.

The Criminalization of America

Published March 2007

Texas Rep. Wayne Smith is tired of hearing about parents missing meetings with their children’s teachers. His proposed solution is simple: Prosecute such parents as criminals. In Louisiana, state Sen. Derrick Shepherd is tired of seeing teenagers wearing popular low-rider pants that show their undergarments — so he would like to criminally charge future teenagers who are caught “riding low.”

Across the USA, legislators are criminalizing everything from spitting on a school bus to speaking on a cellphone while driving. Criminalizing bad behavior has become the rage among politicians, who view such action as a type of legislative exclamation point demonstrating the seriousness of their cause. As a result, new crimes are proliferating at an alarming rate, and we risk becoming a nation of criminals where carelessness or even rudeness is enough to secure a criminal record.

There was a time when having a criminal record meant something. Indeed, it was the social stigma or shame of such charges that deterred many people from “a life of crime.” In both England and the USA, there was once a sharp distinction between criminal and negligent conduct; the difference between the truly wicked and the merely stupid.

Legislators, however, discovered that criminalization was a wonderful way to outdo one’s opponents on popular issues. Thus, when deadbeat dads became an issue, legislators rushed to make missing child payments a crime rather than rely on civil judgments. When cellphone drivers became a public nuisance, a new crime was born. Unnecessary horn honking, speaking loudly on a cellphone and driving without a seat belt are only a few of the new crimes. If you care enough about child support, littering, or abandoned pets, you are expected to care enough to make their abuse a crime.

High crimes

Consider the budding criminal career of Kay Leibrand. The 61-year-old grandmother lived a deceptively quiet life in Palo Alto, Calif., until the prosecutors outed her as a habitual horticultural offender. It appears that she allowed her hedge bushes to grow more than 2 feet high — a crime in the city. Battling cancer, Leibrand had allowed her shrubbery to grow into a criminal enterprise. (After her arraignment and shortly before her jury trial, she was allowed to cut down her bushes and settle the case.)

Of course, it is better to be a criminal horticulturalist than a serial snacker. In 2000, on her way home from her junior high school in Washington, D.C., 12-year-old Ansche Hedgepeth grabbed some french fries and ate them as she went into the train station. In Washington, it is a crime to “consume food or drink” in a Metrorail facility. An undercover officer arrested her, searched her and confiscated her shoelaces.

Running out of adult targets, many state laws pursue the toddler and preteen criminal element. In Texas, children have been charged for chewing gum or, in one case, simply removing the lid from a fire alarm. Dozens of kids have been charged with everything from terrorism to criminal threats for playing with toy guns or drawing violent doodles in school.

In the federal system, Congress has been in a virtual criminalization frenzy. There are more than 4,000 crimes and roughly 10,000 regulations with criminal penalties in the federal system alone. Just last year, Congress made it a crime to sell horse meat for human consumption — a common practice in Europe where it is considered a delicacy. Congress has also criminalized such things as disruptive conduct by animal activists and using the image of Smokey Bear or Woodsy Owl or the 4-H club insignia without authorization.

The ability to deter negligence with criminal charges has always been questioned by academics. Negligent people are, by definition, acting in a thoughtless, unpremeditated, or careless way. Nevertheless, prosecutors will often stretch laws to make a popular point — even when the perpetrators have suffered greatly and shown complete remorse.

In 2002, Kevin Kelly was charged criminally in Manassas, Va., when his daughter, less than 2 years old, was left in the family van and died of hyperthermia. With his wife in Ireland with another daughter, Kelly watched over their 12 other children. He relied on his teenage daughters to help unload the van and did not realize the mistake until it was too late.

The suggestion that people like Kelly need a criminal conviction to think about the safety of their children is absurd. Kelly was widely viewed as a loving father, who was devastated by the loss. The conviction only magnified the tragedy for this family. (Though the prosecutors sought jail time, Kelly was sentenced to seven years probation, with one day in jail a year to think about his daughter’s death.)

The cost to all of us

The criminalization of America might come as a boon for politicians, but it comes at considerable cost for citizens and society. For citizens, a criminal record can affect everything from employment to voting to child custody — not to mention ruinous legal costs.

Yet, it now takes only a fleeting mistake to cross the line into criminal conduct. In Virginia, when a child accused Dawn McCann of swearing at a bus stop, she was charged criminally — as have been other people accused of the crime of public profanity.

Our insatiable desire to turn everything into a crime is creating a Gulag America with 714 incarcerated persons per 100,000 — the highest rate in the world. Millions of people are charged each year with new criminal acts that can stretch from first-degree murder to failing to shovel their sidewalks.

We can find better ways to deal with runaway bushes, castaway pets, or even potty-mouth problems. Congress and the states should create independent commissions to review their laws in order to decriminalize negligent conduct, limiting criminal charges to true crimes and true criminals. In the end, a crime means nothing if anyone can be a criminal.

The Feres Doctrine: What Soldiers Really Need Are Lawyers

The president and Congress have been falling over themselves to pledge better care for our wounded veterans in the wake of the scandal over “squalid” conditions at the Walter Reed Army Medical Center that included mold, rats, cockroaches, rotting walls and callous treatment of patients. The president has empanelled the perfunctory “blue-ribbon commission.” The hospital walls have literally been whitewashed, so politicians can use them again as backdrops for speeches about “nothing being too good” for our troops. Yet no one is talking about the one thing that soldiers and sailors are most desperately lacking: They don’t need another spit and polish; they need lawyers.
For decades, our military members have been barred from suing for medical malpractice and other forms of negligence by the government. Whether it is a military doctor cutting off the wrong leg or a military gasoline station cutting a brake line, military personnel are not allowed to seek legal relief as other citizens can. The result is that they are victims of grotesque forms of negligence that have not been widely seen in the civilian world for more than a hundred years. In the civilian system, the threat of lawsuit serves a critical deterrence of negligence by the government, companies and others. A rational actor will avoid liability costs by taking measures to minimize accidents.

Most Americans do not know that we deny our servicemembers the basic right to sue when they are injured by negligence. They live in a type of tort-free zone where their injuries are subject to relatively minor levels of compensation. With the silent approval of Congress, we have created a system of discount citizens who become easy fodder for incompetent or even criminal actors. Indeed, killing a soldier on an operating table or in a military recreation area is a virtual bargain at a fraction of the cost of a full-value citizen.

The military’s loss of legal protections is the result of a 1950 Supreme Court ruling on a series of cases that became known collectively as the Feres Doctrine. It was named after Army Lt. Rudolph Feres, who died in a fire allegedly caused by an unsafe heating system in his New York barracks. In this and later opinions, the Supreme Court interpreted the Federal Tort Claims Act to effectively bar any tort actions by servicemembers, even though Congress exempted only “combat-related” injuries. The court unilaterally decided that even injuries in peacetime that are far removed from any combat-related function are still “incident to service.” Thus, in one of the Feres cases, a soldier was barred from suing after an Army doctor left a 30-by-18-inch towel inside him marked as property of the “Medical Department U.S. Army.”

Little deterrence

As a result of the Feres Doctrine, there is little deterrence for military negligence beyond self-regulation, bad publicity or a political scandal. Because most accidents are isolated and military personnel tend to stay within the chain of command, these are relatively low risks for military tort-feasors. Moreover, since such accidents are not litigated, there is no reliable system to determine the rate of accidents in the massive military complex. Thus, we cannot reliably compare the accident rates in recreational or medical areas with their counterparts.

The military medical system is a prime example of what happens when patients are stripped of their legal protections. The military has long had many talented and dedicated doctors and nurses. Nevertheless, it also has long been plagued by scandals involving everything from doctors without medical licenses to medical treatment that borders on the medieval. Consider a few examples from the military malpractice-free-zone:

•Lt. Cmdr. Walter Hardin spent 11 months with red lesions from his legs to his torso that a doctor classified as eczema. It was correctly diagnosed as cancer shortly before he died.

•Sailor Dawn Lambert had to have a fallopian tube removed, but military surgeons left five sponges and a plastic marking device in her abdomen. They remained there for months until resulting complications forced a second surgery to remove her other fallopian tube, leaving her infertile. She was given $66 monthly in disability pay.

•Linda Branch lost her husband while he was serving in the Air Force after he was turned away twice by a military hospital that told him his intense stomach pains was nothing more than stomach flu. He died of a bowel obstruction.

•Navy Petty Officer Joe Cragnotti went to a military hospital with pneumonia, which is treatable with antibiotics. The doctor left it untreated, then Cragnotti suffered brain damage.

•Air Force Staff Sgt. Dean Patrick Witt had appendicitis but was repeatedly misdiagnosed and sent home with some antibiotics. When he finally collapsed at home, he was rushed into surgery. He came out brain-dead. It’s alleged that a series of malpractice led to his death, including the use of a pediatric rather than an adult device to open an airway when he had trouble breathing.

When civilian doctors leave a patient paralyzed or crippled for a lifetime of care, the family members often receive millions in compensation. In the military, the families receive a couple thousand dollars a month and, you guessed it, more military medical care. Dorothy Meagher found herself carrying for her son after he went in to have a cyst removed at a Navy hospital. Her family alleged that, due to an overdose of anesthetics and the failure of a Navy doctor to immediately call for assistance, her son was left a quadriplegic.

Unanswered questions

Many families in the military never know that they were the victims of malpractice because, without discovery, there is no routine way of forcing such disclosure. For example, Army Staff Sgt. Michael McClaran had a simple surgery for acid reflux. He said he was not told that the surgeon had severed two critical nerves — the cause of chronic respiratory and digestive problems.

Feres extends beyond medical malpractice. It bars lawsuits in a vast array of activities in such areas as travel, recreation, housing, restaurants, bars and service stations — military enterprises often run in competition with civilian businesses. Thus, when a rented water ski loses its brakes or a soldier is raped at a concert, the military invokes Feres and walks away immune from its own negligence.

Liberals and conservatives on the court — such as Justices John Paul Stevens and Antonin Scalia — have denounced the court’s continued use of this doctrine, as have dozens of lower court judges. This doctrine has done more harm to military personnel and families than any court-made doctrine in the history of this country.

Congress must amend the Federal Tort Claims Act to put an end to this disastrous doctrine. We can no longer afford to leave our servicemembers in the hands of politicians who express shock every 10 years as new scandals regularly emerge. Some lawmakers knew of the appalling conditions at Walter Reed but took no legislative action.

The fact is that military hospitals are often treated as little more than a reservoir of human props for political photo ops. The only other part of Reed that members of Congress routinely visit is the VIP floor located on the top floor. Known as the Eisenhower Executive Nursing Suite, it’s where high-ranking politicians, jurists, generals, admirals and diplomats are treated. Of course, the politicians, judges and foreign dignitaries are allowed to sue for any negligence.

Former senator Bob Dole, who co-chairs the new blue-ribbon commission, was treated there and recently noted that he never saw anything to complain about. That is not surprising since, unlike the vermin-infested and mold-covered rooms of wounded soldiers, politicians are given suites that include fine carpets, antique furniture, separate dining rooms and fine china.

If members of Congress truly want the best for our troops, they should start by giving them the same legal protections that the members themselves enjoy. No one is asking for Congress to treat our soldiers as high-value VIPs, but simply full-valued citizens with the same protections as the people they are defending around the world.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors. He is the author of a three-part study of the military, including its legal and medical systems.

The Door to 204 and the Virginia Tech Massacre

In the collective nightmare of the Virginia Tech massacre, myriad images are seared into our minds. For some, it is the detached and blank expression of the killer, Seung Hui Cho. For others, it is the image of terrified students running past heavily armed police. For me, it is a single door. Indeed, if there is to be a memorial to remember this tragedy, there could be no more poignant or powerful symbol than the bullet-ridden door of Room 204 on the second floor of Norris Hall.
Before April 17, it was the door that led into the classroom of professor Liviu Librescu. For 20 years, students had passed through the doors of Librescu’s classes to learn about engineering from one of the world’s leading aeronautical engineers. Like all academics, his classroom was his special domain, an almost sacred place in the hearts of all academics. It is a place protected from ignorance and intolerance — the enemies of learning. Yet, what makes such rooms special is not the interior but the occupants. The earliest “universities” did not have a conventional campus or building. A university was the collection of faculty and students who’d meet wherever they could find shelter and safety. When a famous teacher such as Plato met with his students, it was often in the open. He and his students would form a circle, and the interior of that circle became a place of learning, a protected space.

Even after universities created the physical protection of campuses, faculty remained the primary protectors of the place of learning. Shutting the school door to ignorance or hatred was an oft-used metaphor. For Librescu, this common metaphor would become a chilling reality.

Saving his students’ lives

About 9 a.m. April 16, when Seung Hui Cho began his shooting spree in Norris Hall, Librescu was in the middle of his solid mechanics class. Panic quickly took hold of the class as students began to scream and turn over desks for shelter. Librescu knew better. He shouted for his students to kick out the window screens and jump for safety as he used his body to block the door. As many as 15 students were saved before the 23-year-old English major was able to overcome the 76-year-old professor by shooting him through the door. Librescu died there in his classroom while most of his students jumped out of the windows to safety.

This was not Librescu’s first encounter with terror. Born in Romania, Librescu was sent to a ghetto holding Jews in World War II and his father was sent to a cruel work camp. He barely escaped the fate of hundreds of thousands of Romanian Jews methodically executed by their government. Now, after surviving the Nazis and later persecution under the dictatorship of Nicolae Ceausescu, he found himself literally holding back a man bent on methodically killing his students. He would die on Holocaust Remembrance Day, ending a life struggle against homicidal rage that began for him as a boy in the work houses of Romania.

The image of Librescu holding back a killer from entering his class is an image that most academics will never forget. Indeed the next day, when I opened the door to my torts class at George Washington University Law School, I felt an immense sense of pride and gratitude to be a member of the teaching academy. Even before we had walls on our classrooms, generations of academics have protected this special place. When I walked into my first class roughly two decades ago, I can remember the overwhelming feeling that this is my classroom and what occurs here is something of my making. It is a notion that is sometimes lost on non-academics. When a painter or a carpenter creates, he has a painting or a chest that is the physical expression of his skills and his vision. It is a manifestation on some level of himself.

For academics, our most important creative enterprise is non-physical. It is a journey of learning that we take every term with our students, a journey that is truly reciprocal in every way. The classroom may be ours for only an hour a day, but during that time, it is entirely ours. For better or worse, it is what we make of it and the truly great teachers, such as Librescu, can make something, while intangible, last a lifetime.

Liviu Librescu was not the only teacher to die in his classroom that day. French teacher Jocelyne Couture-Nowak of Canada; German teacher Jamie Bishop of Georgia; engineering teacher G.V. Loganathan of India and biomechanics teacher Kevin Granata of Ohio also fell where they taught. (Granata died after pulling 20 students into the safety of his locked office and, with another professor, sought to help others.) These five teachers came from three countries but shared a common bound with their students and their classrooms. They died with 27 gifted students who had come to this place of safety to learn about the world and about their role in it.

The gateway. The door.

This brings me back to that bullet-ridden door. The door of Room 204 became a literal barrier for an academic to shield his class and his students from harm. It stands as a reminder of the struggle and sacrifice that so many have made to preserve our places of learning. On one side was a force of unblinking, unthinking hate. On the other side was a force of unbridled loyalty and, yes, love. Cho had to shoot him through the door to gain entry into Librescu’s class. Yet in the end, Librescu won. He prevailed by showing that there are things and people worth dying for. His students were worth dying for. In the midst of unparalleled carnage, he offered a symbol that transcended fear and found meaning in sacrifice. He died as he lived, teaching his students perhaps the most important lesson of his life.

I expect that Virginia Tech will construct a memorial to replace the makeshift memorial outside Norris Hall. Here is my proposal. Place this door where everyone can see it while walking to and from their classes. Under it, simply put the well-chosen Latin motto of Virginia Tech: Ut Prosim— That I May Serve.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

Peter Agre and Al Franken and the Minnesota Senate Race

For those who believe that American democracy is at a crisis point, there is no more vivid example than Minnesota, where comedian Al Franken has launched a full-throated effort to unseat Republican Sen. Norm Coleman. It is fast-food politics at its artery-clogging worst: instant gratification and no nutritional value. Yet, Franken has both personal wealth and a host of wealthy donors at his call — pushing out virtually all competitors. While Minnesota has long prided itself on favoring underdogs, the day may have passed when an idea-rich, cash-poor candidate can secure a major office.
Democracy becomes a noble lie when money bars most citizens from elective office. Candidates must now pony up millions to have a chance for statewide office, creating a type of oligarchy where offices are restricted to a small elite. The closing of politics to most citizens has profound implications for the country. There was a time when politics attracted certifiable geniuses such as Thomas Jefferson, James Madison and Daniel Webster.

The threshold barriers to new voices entering our political process were evident during a recent conversation that I had with Nobel Prize winner Peter Agre. A Minnesota native, Agre revealed his interest in running but said he was told by state politicos that, in opposing Franken, he is a day late and a dollar short — well, $9 million to be specific. That was the amount that he would need to be “credible.” Despite a lack of money, Agre still intends to run as either a Democrat or independent.

Money machines

The $9 million could prove a conservative estimate. The average cost of the 10 most expensive Senate campaigns doubled in four years from $17 million in 2002 to almost $35 million in 2006. The 2008 presidential campaigns have already triggered their own records. In the 2000 Senate race in Minnesota, lawyer Mike Ciresi (who is also running in 2008) put up $5 million of his own money in his losing bid.

To win, a candidate needs buzz and bucks, and Franken — who has raised $1.4 million as mere seed money — has an endless supply of both. He thrilled bored voters by calling Coleman “one of the administration’s leading butt boys.”

Conversely, Agre does not have much to put on the table beyond a Nobel Prize for chemistry and global work on behalf of academic freedom. In today’s politics, that gives him about the same odds as Albert Schweitzer running against Arnold Schwarzenegger.

Of course, brilliance is no guarantee that Agre would make a good senator, and he would have to prove that he could appeal to people beyond Minnesota Mensa members. Nonetheless, there is something fundamentally wrong when a man such as Agre is considered political roadkill. Even in a state that once embraced underdog candidates such as professional wrestler Jesse Ventura (who became governor) and college professor Paul Wellstone (the late U.S. senator), money now confines politics to the ranks of rich personalities and robotic functionaries.

Obviously, money has long played a great role in politics. But the exponential rise in campaign costs belies the popular notion that anyone can become president or senator in this country.

Except for his lack of money, Agre would appear the perfect candidate. Besides instantly doubling the IQ of the Senate, Agre would be the first Nobel Prize winner for science to be elected to Congress. While the Senate has been Nobel-free for more than six decades, he would join three prior senators and one vice president (the president of the Senate) who received Nobel Peace Prizes.

Born in Minnesota and a former Eagle Scout to boot, Agre seems to have walked off the set of A Prairie Home Companion: milking cows in the summer and eating lutefisk in the winter — a vile codfish soaked in lye that only a snow-crazed Norwegian can swallow with success. Part of a large farming and working-class family, Agre went to Theodore Roosevelt High School in Minneapolis (with another student named James Janos — later known as Jesse Ventura). His father was the chairman of the chemistry department at St. Olaf College. Growing up, Linus Pauling — two-time Nobel laureate for chemistry and peace — stayed at their home, unaware that the gangly kid running around would inherit his Nobel Prize 49 years later.

Clear contrast

Agre’s announcement would create a wild contrast for Minnesota voters. On one side, there is Franken, whose contributions to humanity include such books as Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right and Rush Limbaugh is a Big Fat Idiot. On the other side is Agre, who has quietly served medicine and human rights for decades around the world. His published works include scientific breakthroughs credited for having “ushered in a golden age of biochemical, physiological and genetic studies … at the molecular level.”

Agre could present an equally sharp contrast with Coleman on issues such as stem cells. Coleman has often discussed his tragic loss of two children to a rare genetic disorder as shaping his opposition to most stem cell research. Agre’s loss of his 3-month-old daughter, Lydia, to cerebral palsy helped shape his views in favor of such research.

The question is whether Agre will have a chance to make his case. The Man from Mensa could be the ultimate test of whether merit still plays a significant role in U.S. politics or whether money alone dictates our choice of leaders.

Of course, the very notion of a Nobel laureate joining the less-than-cerebral ranks of the U.S. Senate is something too much to hope for. It would be a scene reminiscent of when John F. Kennedy welcomed Nobel Prize winners to the White House in 1962 and observed, “Never has there been so much collective intelligence in this room, since Jefferson dined here alone.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

A lawyer’s guide to fatherhood

Published in June 2007

Fatherhood is the one job that you can get without the slightest degree of experience, knowledge or talent (despite what you may hear to the contrary on Father’s Day). For that reason, when a friend had his first child recently, I quickly rattled off the most important things that I have learned as the father of three boys and a girl: Don’t wear white shirts while changing boys (they consider it a type of canvas); the easiest way to extract material from noses is a hot bath (except for cheese sticks); always check your briefcase for toy guns before entering a courthouse; and always check the children for captive animals before leaving a forest.

But the most important lesson is that all children are born with an innate sense of the law. Indeed, when the Framers spoke of natural rights, they might have hit on the same discovery in their own children. You can actually track your kids’ development by the legal arguments they make. Take it from me, the best way to prepare for parenting is to take a law course at your community college.

Takings. The Constitution prohibits the taking of property without compensation by the government. Within their first two years, all children embrace this principle with a vengeance. Parents learn they must compensate for any item removed: a toy for the car keys; a cracker for the 12-inch butcher knife.

Contracts. By 3, negotiating with kids is like working with little Teamsters on a labor contract. Bring a sandwich truck to the site; it becomes part of the contract. Likewise, once a parent buys a scone at Starbucks or allows cartoons in the morning, it is part of an unwritten but enforceable contract. This develops into a form of collective bargaining with the addition of another sibling: Any benefit to one is instantly an expected benefit to the other. Break the contract and you’ll face work stoppages, unending protests and even sabotage that ranges from spilled milk to items in the trash can.

Cruel and unusual punishment. By 3, children have defined what they view as cruel and unusual punishment. Denials of favorite foods or toys are considered to be measures that “shock the conscience” and require immediate redress.

Privacy. As soon as a child goes through potty training, privacy becomes an increasingly important right — reaching its apex in the teen years. The same parents who spent two years changing them and bathing them must now sequester themselves in a distant room to avoid the “chilling effect” of surveillance.

Equal protection. By 6, all children put themselves in what the Supreme Court calls “a suspect class” — any different treatment based on their identity as a sibling can be enforced only after parents show a compelling reason that they are using “the least restrictive means.” Otherwise, a difference of only 10 minutes in television time is enough to unleash demonstrations reminiscent of the march on Selma.

Due process. By 6, kids will insist on full due process in adjudicating their claims. Major penalties such as loss of Game Boys require something close to a full trial with two days of arraignment, jury selection and sequestration — and inexhaustible appeals.

Free speech. By 10, children have developed an almost unlimited expectation of free speech. Indeed, since they have now concluded that your views are worthless and out of date, it increases the necessity of your listening to them. Parents are forced to change their content-based regulations from the toddler years to “time, place and manner” restrictions for teens.

Free association. When you object to a boyfriend with more body-pierced metal than a tank, your child will discover the right to association. With the acquisition of a learner’s permit, she will add a claim of free travel (which also involves your car).

The final years of adolescence are filled with conflicts over search-and-seizure rules and the monitoring of electronic communications without probable cause. Of course, by the time your child reaches the late teenage years, you have become the Alberto Gonzales of parents: continual surveillance, spontaneous searches, detention without appeal. You can then wait for your little litigators to become parents in their own right. It is then that you can undermine their authority by plying their children with unlimited sugar-based products and allowing them to live as anarchists under your roof. Your children will then learn the meaning of James Madison’s observation that “if men were angels, no government would be necessary.”

Alberto Gonzales: Tough on Crime? Hardly.

Continue reading ‘Alberto Gonzales: Tough on Crime? Hardly.’

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