Donald Giles would appear to have the trifecta of mental incompetence arguments against execution. He is a paranoid schizophrenic with an IQ of 61 and a history of suicide attempts and depression. However, Jefferson County Circuit Judge Martin McDonald has ruled that Giles, 41, may be put to death if the jury so rules in his trial for the 2003 murder and robbery of Charles Goodlett.

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court ruled 6-3 that executing the mentally retarded violates the Eighth Amendment’s ban on cruel and unusual punishments. Notably, Atkins was deemed “mildly mentally retarded” with an IQ of 59.

Kentucky law statutes actually ban the execution of a person with an IQ of 70 or below but McDonald ruled that Giles should have been given an IQ test as a child to claim such an exception.

This is news to many in the field who argue that the only requirement is proof that the mental condition was not recently claimed or caused. Giles has a lifetime of proven mental illness.

In the meantime, McDonald has been criticizing the local media for publicizing the case and his ruling on the mental incompetence of Giles.

For the full story, click here.

There has been a ruling in the Arizona case where an officer, Officer Adam Stoddard with the Maricopa County Sheriff’s Office is clearly shown on this videotape reading and then swiping the confidential papers of defense attorney Joanne Cuccia in court. Maricopa County Superior Court Judge Gary Donahoe found against Stoddard and ordered him to either apologize or report to jail — a remarkably light sentence. However, his boss is Sheriff Joe Arpaio who has said that his officer will defy the order.

Stoddard swiped the papers while defense attorney Joanne Cuccia was addressing the court on behalf of her client, Antonio Lozano. The response of Judge Lisa Flores was remarkably understated and restrained given the horrific breach of confidentiality.

Before Donahoe, Stoddard’s explanation only magnified his misconduct. He claimed that he saw the words “going to,” “steal,” and “money” on a handwritten sheet of paper sticking out of Cuccia’s file, which led him to believe that Lozano posed a security threat. This confirms that he read the document as opposed to a cursory review of material for contraband or weapons. It is also ridiculous that such words would cause an officer to remove confidential notes — written by an attorney — in a criminal case. Most of the attorneys in that courthouse are representing people with records and have notes including such nouns and verbs.

Stoddard ordered an apology to Cuccia or jail. Many believed that Stoddard should have been fired or, in the very least, barred from work in courthouses. Arpaio, however, has declared that he will defy the order. Arpaio is the most controversial sheriff in the country and is routinely accused of abusive practices. On this occasion, he is defending his deputies pulling handwritten notes from the files of lawyers to be copied and reviewed.

For the story, click here.

It was the Queen of Hearts in Alice in Wonderland that declared “Sentence first! Verdict afterwards.” However, President Barack Obama appears to have taken a lesson our two from her majesty. Today, President Obama assured Americans that they should not be offended by trying Khalid Sheikh Mohammed in federal court because he will be convicted and executed. I will be discussing this story tonight on MSNBC Countdown.

In an interview with NBC News, Obama said those offended by the trial will not find it “offensive at all when he’s convicted and when the death penalty is applied to him.” He then appeared to recognize the impropriety of those remarks and said that he was “not going to be in that courtroom. That’s the job of the prosecutors, the judge and the jury.”

It is highly ironic that, in defending the noble decision to grant a fair trial to these men, Obama may have crossed the line in contributing to the prejudicial atmosphere against them. It is always a bad idea for a politician to comment on cases pre-trial. However, the greater damage may have been caused by Attorney General Eric Holder in his original press conference on the decision. The only thing missing from that transcript is a case caption to make it a formal motion for venue change. Holder specifically states that he wanted KSM tried a couple blocks from ground zero and wanted to give New Yorkers the satisfaction of trying one of the villains of 9-11.

I am not certain that such a trial will occur. If there is a case to be made for a venue change, this is it. Holder only magnified the need for such a motion.

For the full story, click here.

This afternoon, the Plaintiffs in the World Bank/IMF protest case filed a notice with the Court of the receipt of an affidavit in the case from a police detective, who contradicts the sworn testimony of former D.C. (and current Philadelphia) Police Chief Charles Ramsey. As lead counsel in one of the two cases (with my colleague Daniel Schwartz of Bryan Cave), I am limited in what I can say on the case. However, to reduce calls to my office, I am posting the filing below.

The notice is filed with our colleagues in the Barham Mara Verheyden-Hilliard and Carl Messineo for the Partnership for Civil Justice who has posted videos of the deposition of Ramsey, here.

The notice states in part:

In opposition to that motion and in yesterday’s status hearing before this Court, Chang counsel raised the issue and discussed the relevance of Detective Hustler’s possible testimony. (See Dkt. No. 558 in Chang.) The Court ordered the deposition of Detective Hustler to go forward under the supervision of the Marshall Service or Magistrate Facciola. Following the hearing, counsel for both Chang and Barham jointly reviewed an affidavit that had been submitted by Detective Hustler that disclosed the evidence that would have been presented in the deposition. (See Hustler Affidavit, attached as Exhibit 1.) The evidence is
extremely disturbing and contradicts prior sworn representations given to the Court and plaintiffs during the past seven years of litigation of this matter as well as the investigation into the Pershing Park arrests undertaken by the District of Columbia Council. The affidavit details the actions and observations of Detective Hustler on September 27, 2002, including his observations of the orders given for the mass arrest in Pershing Park.

For the notice, click As filed

For the affidavit, click As filed Affidavit

For the story, click here and here

We have been following the expansion of defamation cases linked to Internet sites, here, and here. We now have an interesting Twitter case involving rock star Courtney Love, who lost her bid recently to dismiss a libel action filed by designer Dawn Simorangkir. Simorangkir claims in the lawsuit that Love “has embarked in what is nothing short of an obsessive and delusional crusade to terrorize and destroy” her.

The Tweet that makes this a particularly strong case is where Love described Simorangkir as having a “history of dealing cocaine.” Under the common law, alleging criminal conduct is a per se category of defamation. Love also accused her of being a drug addict, a prostitute, a thief, and a “horrible lying bitch.”

Simorangkir, known as the Boudoir Queen, is suing for libel, privacy violations, contractual breaches, and emotional distress. She also claims defamation on Love’s Facebook page.

We have previously seen Tweet torts for libel, here.

Here is the complaint: courtney_love_lawsuit_090331

For the full story, click here and here.

Conservative commentators continue their war on the Constitution this week with increasingly shrill rhetoric of how our laws and civil liberties are endangering us. Fox News commentator Bill O’Reilly, however, achieved a remarkable low by declaring “I don’t care about the Constitution” on air in a discussion of Attorney General Eric Holder’s decision to try five detainees in New York.

I am always struck by anti-American rhetoric that comes from such figures. The Constitution is the very thing that defines who we are as a nation. It is the thing that we have sacrificed lives and treasure to protect. Yet, people like O’Reilly have little reluctance in trashing it. I am less surprised by Karl Rove, who has shown little personal commitment to the rule of law and barely escaped an indictment in the Plame matter. Rove declared that giving a fair trial to terror suspects is a “long-standing plot” by “left-wing lawyers who do not love America.” America, it seems, is something other than our values and founding documents. It is, I suppose, Fox News.

I have no delusion about O’Reilly, but I am still struck by the dismissive contempt shown this common article of faith between citizens, the Constitution. While we have considerable political, religious, and cultural differences, that document is something of a covenant of faith between us as citizens. One cannot love this country without loving that document. What is less is land and “lifestyle.” O’Reilly’s statement is every bit as offensive as those of Rev. Jeremiah Wright, whom I also denounced. Yet, it was met with acclaim rather than condemnation from conservative viewers.

Here is today’s column in USA Today on the continuing trend toward shaming or creative punishments.

Shame is back in the United States with a vengeance.

Across the country, judges and prosecutors and jailers are freelancing by imposing their own brands of retributive justice: forcing people to wear humiliating clothing, parade in public and even sleep in doghouses. The punishments are wildly popular with many in the public who want to see criminals humiliated and seem to relish the entertainment of improvised justice.

Two weeks ago, citizens of Bedford, Pa., were able to gawk at Evelyn Border, 55, and her daughter, Tina Griekspoor, 35. The two had been caught stealing from a child and were told by the local prosecutor that unless they performed a publicly humiliating act, they would be hit with heavy charges. They agreed to appear in front of the courthouse holding signs reading, “I stole from a 9-year-old on her birthday! Don’t steal or this could happen to you!” Such scenes are being repeated across the country as citizens are told to choose between degrading public acts or long jail sentences.

Shaming punishments are a return to primitive practices common before the American Revolution, when people were forced into public pillories, marked with scarlet letters or forced into forms of public humiliation, including degrading signs. These shaming punishments declined after the Founding Fathers sought to modernize the criminal justice system and to require consistent punishments.

Gum, manure and doghouses

Elected state judges have found that many citizens relish the humiliation of others. Georgia Judge Rusty Carlisle does not deny that he is trying to degrade people who come before him. In one case, a defendant seemed “kind of cocky” in a minor littering case, so Carlisle ordered him to scrape the gum off the bottoms of the court benches with a butter knife while people watched. The “King of Shame” was Texas Judge Ted Poe, who insisted that “people have too good a self-esteem,” so he made them do things such as shovel manure to abase them. What Poe called “Poetic justice” has little to do with actual justice. It is a form of entertainment that sacrifices our most fundamental principles to satisfy our most base impulses. Judges give the public displays of retribution by using citizens as virtual props in their personal theater of the absurd.

In 2003, Texas Judge Buddie Hahn gave an abusive father a choice between spending 30 days in jail or 30 nights sleeping in a doghouse (He chose the doghouse to be able to keep his job). Likewise, in Ohio, municipal Judge Michael Cicconetti sentenced two teens found guilty of breaking into a church on Christmas Eve 2002 to march through town with a donkey and a sign reading, “Sorry for the Jackass Offense.” Cicconetti later ordered a woman to be taken to a remote location to sleep outside for abandoning kittens in parks.

Studies have actually shown limited value in humiliation as a punishment in terms of actual deterrence in crime. Its principle value is found in the political rather than the criminal system. Indeed, Poe used the popularity of his creative punishments to secure a seat in Congress in 2004.

Now, prosecutors and jailers are trying to cut in on the shaming action. In the Bedford case, the punishment was not ordered by a judge but by a prosecutor, Bedford District Attorney Bill Higgins, who promised to seek probation if they demeaned themselves.

“Giving the people what they want” can sometimes get them to forget what they don’t want — like the bread and circuses of Roman emperors. For example, Higgins was dogged by allegations of adultery and having sex in the very courthouse where he paraded Border and her daughter. Though he faced a criminal complaint and admitted to adultery, no one is calling for Higgins to wear a placard as an adulterer. Instead, he is being heralded for parading the two petty thieves.

Likewise, Arizona Sheriff Joe Arpaio has long faced complaints over his heavy-handed tactics against both citizens and illegal immigrants. However, most people know him only as the guy who forced male inmates to wear pink underwear to humiliate them.

Inventing justice

Some judges have faced charges over their meting out personal justice but have received little punishment. Gustavo “Gus” Garza, a justice of the peace in Texas, was given only an admonishment last year when he forced parents to spank their children in front of him in court to avoid heavy fines. In another spanking case, former Alabama judge Herman Thomas actually used shaming punishments as a criminal defense. Thomas was recently acquitted of sodomy and assault after he allegedly took inmates from their cells for spankings and sex in his chambers. Despite testimony alleging spanking and sodomy, Thomas’ lawyer insisted that the judge was merely “mentoring them” and trying to turn them into “productive citizens” in dealing with them in chambers.

All criminal sentences produce shame for most citizens. But there is a difference between shame from a punishment and shame as a punishment. These judges are inventing their own forms of retributive justice like little Caesars toying with citizens. It is a threat to the basic principles of our legal system. It is an abuse of not just the criminal code but of the criminals themselves. It is not just wrong. It is, in a word, shameful.

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

November 17, 2009

Necessity defenses in tort and criminal law are always somewhat controversial and rarely successful in criminal prosecutions. However, Lisa Marie Leprowse has secured a reversal of her DUI conviction from the Montana Supreme Court, which ruled that the trial court erred in not allowing her to argue that she drove drunk to avoid a fight.

Here is how the Montana Supreme Court described the underlying facts in Montana v. Leprowse:

On May 12, 2008, Leprowse was charged in District Court with assault with a weapon and DUI. The assault charge was later dismissed. The allegations in support of these charges are as follows. On April 27, 2008, dispatch advised officers in Missoula County that someone had pointed a gun at another individual at the Other Place, a bar in Turah, Montana. Dispatch further advised that the suspect left the Other Place westbound on I-90 in a white SUV heading to a trailer park near the Cross Roads Truck Stop. Dispatch advised the officers that the vehicle was being driven by Leprowse.

Deputy Tillman stopped and processed Leprowse for a DUI. According to the charging documents, Leprowse was cooperative with Deputy Tillman, told the deputy how much she had to drink, and admitted she was intoxicated. Meanwhile, Deputy Schmill went to the Other Place to speak with the victims and witnesses. An individual named Jim Meixner (Meixner) told Deputy Schmill that Leprowse and Stephanie Wahl (Wahl) had been in a physical altercation in the women’s bathroom at the Other Place. Meixner stated that he broke up the fight and separated the women. Meixner and Leprowse were subsequently talking outside the bar on the back patio when Leprowse asked Meixner for her hand gun back. Meixner had been keeping Leprowse’s hand gun at his house. Pursuant to her request, Meixner went to his house and retrieved the gun and brought it to Leprowse.

Meixner told officers that Wahl then came “out of nowhere” and knocked both of them to the ground. Leprowse and Wahl then started calling each other names. Meixner helped Leprowse to her vehicle and she drove away. Meixner told officers that Leprowse did not point the gun at anybody during this time.

Wahl told officers a different story. Wahl claimed that she came out of the bar after her altercation with Leprowse, and saw Meixner and Leprowse kissing on the back patio. When she confronted them, she claimed that Leprowse pulled out her hand gun, pointed it at her head and twice threatened to shoot her. After Leprowse left, Wahl called 911.

Leprowse asked to present an affirmative defense that she was trying to avoid the fight when she drove 14 miles. The prosecution objected and said that she should have stayed in her car and called 911. The trial court barred the defense. However, under MCA § 45-2-212, that state recognizes an affirmative defense:

A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm if he reasonably believes that death or serious bodily harm will be inflicted upon him if he does not perform such conduct.

The holding of the Court was based on that provision:

We hold that the District Court incorrectly concluded prior to trial that Leprowse could not present evidence in support of the affirmative defense of compulsion. Leprowse alleged the required elements for the compulsion defense. She claimed she was compelled to drive away from the bar due to an imminent threat of serious bodily injury, and that her belief was reasonable. Whether Leprowse was actually compelled to drive the distance of 14 miles, and ostensibly commit a DUI, is at its essence a question of fact based on the circumstances.

Leprowse should be given the opportunity to present evidence which, if accepted by a rational trier of fact, would show that her belief was reasonable and that she was compelled to take the actions that she did. After Leprowse has had an opportunity to present such evidence to the jury, whether she is entitled to receive a jury instruction on her affirmative defense may be decided by the District Court based on the record before it.

The question now is how many Montana drunks will claim bar fights as the cause for their driving.

We previously followed the investigation into the three deaths in a sweat lodge run by “Spiritual Warrior” James Arthur Ray at the Angel Valley Retreat Center in Sedona, Arizona. Now, the Lakota Sioux Tribe is suing, demanding the prosecution of Ray under the 1869 Treaty of Fr. Laramie for appropriating a Native American ritual.

The case is the Oglala Lakota Delegation of the Black Hills Sioux Nation Treaty Council v. United States, (D AZ, filed 11/2/2009) and relies on the language of the treaty stating:

If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent, and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

Ray is the bad man among the whites, they argue. Many would agree with that proposition. The question is whether Ray can self-help himself out of a treaty-based prosecution.

This could make for some interesting litigation. One does not often see prosecutions of people who are defined as “bad men among the whites” in federal court. More importantly, the claim that a sweat lodge is the property of the Lakotas is meritless in my view and would raise serious constitutional questions. Yet, they insist that the Oinikaga sweat lodge ceremony is part of the Lakota’s oral tradition which, according to the United Nations Declaration of Rights of Indigenous Peoples, Art. 31, is protected.

Sam Longblackcat, a spokesman for the Lakota, seemed to steer away from religious challenges from the defense. He said that the sweat lodge is one of the seven sacred rites of the Lakota. “This is a way of life, not a religion.” He insisted that “[t]he sweat lodge – we call it Oinikaga or Inipi – is a purification ceremony, to make life. Our sacred way of life was desecrated by a non-native man. This is our property, and there are laws in the United States and in the United Nations that state that these customs are ours and that they are to be protected.”

The non-Native man is also collecting almost $10,000 a person for the pleasure of self-help sweating.

I would still have to bet on the “non-native man” over the Lakota on this one.

For a copy of the lawsuit, click here.

For the full story, click here.

Paul Clarke, 27, a veteran, thought that he was doing the right thing when he found a shotgun in his garden. He took the shotgun to the police station and was immediately arrested for possession of a firearm without permit and criminally charged — an offense that brings five years imprisonment. Prosecutor Brian Stalk insisted that this is a strict liability offense and his intent to help police does not matter — he is a menace to society as defined under the criminal code.

If there was a case for “jury nullification,” this was it. However, the jury took only 20 minutes to find Clarke guilty.

Clarke insisted “I thought it was my duty to hand it in and get it off the streets.” Well now he knows better.

His defense attorney tried to show that a leaflet distributed by the Surrey Police asked citizens to “report[] found firearms.”

He also showed jurors a leaflet printed by Surrey Police explaining to citizens what they can do at a police station, which included “reporting found firearms”. Notably, the arresting officer admitted that he was not even aware of the public leaflet.

However, Judge Christopher Critchlow said: “This is an unusual case, but in law there is no dispute that Mr Clarke has no defence to this charge. The intention of anybody possessing a firearm is irrelevant.”

Paul Clarke will be sentenced on December 11th. He will be hopefully removed from the streets, so that felons can rest assured that, when they leave loaded weapons in backyards, people will respect their proprietary interests. The only question is whether the police shouldn’t return the shotgun to where it was left. Otherwise, there is a gang banger who will continue a panicked search for his missing weapon.

In the end, the only response to the Court and the Prosecutor can be found in the English classic Oliver Twist when Mr. Bumble stated ” If the law supposes that, then the law is a ass, a idiot!”

For the full story, click here.

There is a disturbing trial being held in Zambia where the news editor of The Post, Chansa Kabwela, sent photos of a woman giving birth in a hospital car park without assistance to highlight the costs of a nursing strike and poor government policies. She was right. The officials, including Zambia’s President, Rupiah Banda, were horrified. They immediately arrested Kabwela for distributing pornography.

The baby died from suffocation and the pictures were quite graphic. No one at the trial seems quite as appalled by the lack of medical care that led to the death. It is taboo in the country to show a woman in labor.

Sharon Zulu, the arresting officer, told the court and jury “[w]e are all Zambian here. We all know this is not allowed in our culture.” Now that is a novel form of testimony — cultural lessons from a police officer. However, our community-based definition of obscenity is not much better given Former Justice Potter Stewart’s opinion that “I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . .” One of the most ridiculous legal standards ever uttered.

Under the Court’s decision in Miller v. California the Court uses a standard that is rife with local community bias. Chief Justice Warren Burger crafted the standard:

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Of course, in the Zambian case, the photos may be offensive but they are hardly the most offensive thing in this case.

For the full story, click here.

Here is today’s column from the Washington Post on the benefits of a new type of “good-faith” defense. While “religious convictions” are usually a reference to personal faith, it turns out that it has a distinct and disturbing meaning for criminal sentencing.

“Suffer little children to come to me.” So begins one of the most cited passages in the Bible. Yet, in cases involving the deaths of children in faith-healing families, the second half of Jesus’s admonition from Luke 18:16 is at the heart of legal controversy: “. . . and forbid them not.”

In the past 25 years, hundreds of children are believed to have died in the United States after faith-healing parents forbade medical attention to end their sickness or protect their lives. When minors die from a lack of parental care, it is usually a matter of criminal neglect and is often tried as murder. However, when parents say the neglect was an article of faith, courts routinely hand down lighter sentences. While faithful neglect makes for a poor criminal defense, it is surprisingly effective in achieving more lenient sentencing, in which judges appear to render less unto Caesar and more unto God.

This disparate treatment was evident last month in Wisconsin, a state with an exemption for faith-based neglect under its child abuse laws. Leilani and Dale Neumann were sentenced for allowing their 11-year-old daughter, Madeline Kara Neumann, to die in 2008 from an undiagnosed but treatable form of diabetes. The Neumanns are affiliated with a faith-healing church called Unleavened Bread Ministries and continued to pray with other members while Madeline died. They could have received 25 years in prison. Instead, the court emphasized their religious rationale and gave them each six months in jail (to be served one month a year) and 10 years’ probation.

During their sentencing, Marathon County Circuit Court Judge Vincent Howard said the Neumanns are “very good people raising their family who made a bad decision, a reckless decision.” He then gently encouraged them to remember that “God probably works through other people, some of them doctors.”

Compare the Neumanns’ legal treatment with a couple of other recent cases in which children were injured or killed by nonreligious neglect. Russell J. Wozniak Jr. and Jennifer Ann Wozniak, of Chippewa Falls, Wis., received basically the same sentence as the Neumanns for, the criminal complaint said, allowing their 2-year-old to wander around covered in vomit and wearing a full diaper.

Then there are the parents of Alex Washburn. The 22-month-old died after hitting his head at home in Cross Lanes, W.Va. His parents, Elizabeth Dawn Thornton and Christopher Steven Washburn, said the boy fell a lot and hit his head on the corner of a table and his chin on a toilet. They apologized for not seeking medical help and agreed to terminate their parental rights to their other children, handing over custody to the state. “I wish I did seek medical treatment for my son faster,” Washburn told the court. “That will definitely be with me for the rest of my life.” The court sentenced both parents to three to 15 years in prison.

So the Neumanns got one month in jail for six years and kept custody of their children, and the Washburns got up to 15 years in prison and agreed to give up their kids.

In a nation founded on the free exercise of religion, the legal system struggles with parents who act both criminally and faithfully in the deaths of their children. This paradox has perplexed courts for centuries. One of the earliest prosecutions of such a case occurred in England in the 1800s, when the crown charged followers of a sect known only as the Peculiar People, a name derived from a translation of the phrase “chosen people” from the book of Deuteronomy. They were accused of killing numerous children as a result of faith-healing practices.

Today, the Old Peculiars are largely gone (their faith-healing views thinned their numbers considerably), but many other sects such as Unleavened Bread Ministries have prospered. While the vast majority of fundamentalist and faith-healing parents avail themselves of a doctor’s care when faced with a dire medical condition, some religious parents continue to maintain that belief in God means belief in His power and discretion to heal. They take literally the fact that one of the names of God in the Old Testament, Jehovah-Rapha, means “I am the Lord your Physician,” and point to Exodus 15:26, where God says, “I am the Lord that heals you.”

In the four Gospels, Jesus heals the sick, including in Mark 5:34, where He cures a hemorrhaging girl who was unsuccessfully treated by doctors, saying: “Daughter, your faith has made you well. Go in peace! Be cured from your illness.”

Some parents go to incredible lengths to prevent doctors from doing God’s work. Colleen Hauser of Minnesota gained national attention in May when she went into hiding with her 13-year-old son to avoid a court order that he receive chemotherapy for a Hodgkin’s lymphoma tumor growing in his chest. She was eventually forced to yield; this month, her son finished his final radiation treatment and his family says his cancer is gone.

But the Hauser case is an exception. The advocacy group Children’s Health Care Is a Legal Duty estimates that roughly 300 children have died in the United States since 1975 because care was withheld. When such parents appear in court, they often insist that they love their children and their God – an argument that receives a sympathetic hearing from judges and prosecutors.

While defendants generally show contrition for their actions, the Neumanns remained unrepentant about not calling emergency personnel until after Madeline stopped breathing. Leilani Neumann said: “I do not regret trusting truly in the Lord for my daughter’s health.” Dale Neumann told the court: “I am guilty of trusting my Lord’s wisdom completely. . . . Guilty of asking for heavenly intervention. Guilty of following Jesus Christ when the whole world does not understand. Guilty of obeying my God.”

In Oregon, the Followers of Christ church has been cited for injuries and deaths associated with its faith-healing beliefs for decades. In one 10-year period, estimated Larry Lewman, an Oregon state medical examiner, the church experienced 25 child deaths related to faith-based medical neglect. A recent case involved Ava Worthington, a 15-month-old who fell ill in 2008. Rather than call doctors, her parents – Carl Brent Worthington and Raylene Worthington — allowed a simple cyst on her neck to grow to the size of a softball as they anointed her with oil and administered small amounts of wine, according to testimony at the trial. She died of a blood infection and pneumonia.

Judge Steven L. Maurer, a circuit court judge in Clackamas County, Ore., said he would “stand by my assessment that this was wrong, wrong, wrong. This was an unnecessary tragedy.” However, the prosecutor asked for six months in prison, half the maximum sentence for misdemeanor criminal mistreatment. Maurer gave Carl Brent Worthington two months in jail and five years’ probation. Despite the record of deaths and injuries at their church, the Worthingtons were allowed to keep custody of their 5-year-old daughter and a new baby that was coming in a matter of months. They needed only to promise to bring them to a doctor for scheduled checkups.

Now another trial is pending for the family: Raylene Worthington’s parents, Jeff and Marci Beagley, were charged with criminally negligent homicide in the death of their 16-year-old son, Neil Beagley. He died in 2008 from a urinary tract blockage that could have been treated with a minor surgical procedure. In cases such as this, in which courts confront repeated faith-based fatalities in a single religious community, the legal system risks becoming a facilitator, if not an accessory, to the crimes through lenient sentencing.

These cases have thrived in a gray zone left by the Supreme Court decades ago. In 1944, in Prince v. Massachusetts, the U.S. Supreme Court ruled that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease, or the latter to ill health or death.” The court, however, did not expressly forbid the use of faith as a mitigating factor in sentencing – a matter left to the states. Not only does this “good-faith” exception place children at risk, it results in the troubling image of courts favoring religious parents over nonreligious parents in a nation committed to the separation of church and state.

The key to the use of such a defense is that it must involve belief in a divine being, not a particular lifestyle. In 2007, Jade Sanders and Lamont Thomas of Atlanta were convicted of malice murder and given life sentences for the death of their 6-week-old child. The defense attorneys cited the couple’s strict vegan lifestyle to explain why they fed their newborn son a diet of soy milk and organic apple juice, though during the trial Sanders said she had also breast-fed her son, who died in an emaciated state at 6 weeks, weighing just 3 1/2 pounds. The prosecutor and court had no qualms in treating this couple’s beliefs as a poor excuse for murder, calling a nutritionist and vegan expert as a witness to show that a vegan diet can be safe for an infant. In a stark contrast with religious cases, the prosecutor told the jury: “They’re not vegans, they’re baby-killers.”

The next test of the faith-based defense will be in Philadelphia, where prosecutors last month charged Herbert and Catherine Schaible in the January death of their son, Kent Schaible, 2, from bacterial pneumonia. His parents and other adults prayed around him, practicing faith-healing for two weeks without seeking medical assistance. Then they called a funeral home. The couple was charged with involuntary manslaughter and other related crimes.

Denying children critical care may be divinely ordained for some parents, but it should not be countenanced by the legal system. Until courts refuse to accept religion as a mitigating factor in sentencing in such cases, children will continue to die, neglected as articles of their parents’ faith.

Washington Post (Sunday: November 15, 2009

The former Louisiana Rep. William Jefferson received a sentence of 13 years today — the longest term ever imposed on a congressman convicted of bribery. However, it was significantly below the 27 years sought by the Justice Department, which also failed in its attempt to have Jefferson immediately incarcerated. Instead, Jefferson, 62, will be allowed to remain free pending his appeals.

It was as good as sentence as Jefferson could expect. His attorneys had asked for 10 years, so he received just three years above the defense recommendation. The decision to allow him to stay outside on bond is a particularly impressive win for his lawyers.

For the full story, click here.

Attorney General Eric Holder has ordered actual trials for five 9/11 suspects rather than military tribunals. The decision places the United States squarely back on the road of the rule of law in giving due process even to our most hated defendants. The five defendants include 9/11 mastermind Khalid Sheikh Mohammed. The other four are Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali. However, this courageous act was diminished by an inexplicable decision of Holder to order five other defendants — including USS Cole suspect Abd al-Rahim al-Nashiri — be tried in a military tribunal. I discussed this decision on this segment of MSNBC Countdown.

Texas GOP Sen. John Cornyn condemned the move as putting “political ideology ahead of the safety of the American people just to fulfill an ill-conceived campaign promise.” I am not sure what ideology means but I assume it is a reference to the Constitution. What makes us safer is to offer the world an alternative to these men; to show that we are not the hypocrites that we appeared during the Bush Administration.

The decision to send some detainees to military tribunals, however, is a baffling contradiction. Holder has denied the Administration the high ground in the debate by trying to appease both sides and deny due process to some of these accused individuals. It is a case of snatching hypocrisy out of the jaws of principle.

For the full story, click here.

Maj. Nidal M. Hasan was charged by the Army with 13 counts of premeditated murder. To the chagrin of conservative commentators, he is not charged with terrorism, a controversy I discussed last night on this segment of Rachel Maddow.

While many have been calling for a terrorism charge in the military trial, the Uniform Code of Military Justice (UCMJ) does not actually have a terrorism provision. Such a charge would be handled in a military tribunal or more likely by waiving jurisdiction in favor of a federal prosecution.

As discussed previously, we have a growing habit of calling every shocking killing a terrorist act today. Many killers are unstable and kill strangers. Many often associate themselves with religious or ideological views, as with George Tiller. However, this does not make them terrorists. You can intend to make a statement with a crime or “go out in a blaze of glory” without being part of an effort to coerce or intimidate a government or society. The parents of Balloon Boy wanted to scare a nation, but they are not terrorists. There is no question that you have a legitimate concern over terrorism with a mass shooting at a military base. However, motivation is central to such a distinction. At the moment, Hasan looks much like other rage killers in recent years. For a prior column on this issue, click here.

At the moment, there is no evidence that this was an act of terrorism, defined by the U.S. Army manual as the “calculated use of unlawful violence or threat of unlawful violence to inculcate fear. It is intended to coerce or intimidate governments or societies … [to attain] political, religious, or ideological goals.” At the moment, the crime has many of the same characteristics as a workplace rage shooting. It is true that there is evidence that Hasan was becoming radicalized in his views, but there is even more evidence that he was losing his mind. These killings could easily have more to do with rage than religion. The Army is approaching the case with commendable restraint and not jumping to conclusions. At the moment, it is a murder case.

In the meantime, Obama is calling for an inventory of intelligence on Hasan, as accounts grow of indicators of potential violence, here.

Here is the background facts on Hasan from the Post:

Maj. Nidal M. Hasan

– 39 years old.

– U.S. Army psychiatrist.

– 1997 graduate of Virginia Tech University.

– Received doctorate in psychiatry from the Uniformed Services University of the Health Sciences in Bethesda.

– From 2003 through this summer, was an intern, a resident and then a fellow at Walter Reed Army Medical Center in the District.

– Army records show his last address in the 11300 block of Connecticut Avenue in Kensington.

– Commissioned as a captain, he was promoted to major in May.

– He is single and has no children, and he showed no sign of physical or mental problems in examinations as recently as September.

– He is listed by the Center for the Study of Traumatic Stress as a fellow for disaster and preventive psychology.

– As of Oct. 13, he had less than a year of clinical practice.

– He attended the Muslim Community Center in Silver Spring and is a devout, according to Faizul Khan, former imam at the center. He attended prayers at least once a day, seven days a week, often in his Army fatigues, Khan said.

For the full story, click here.

Many of us expressed outrage at the actions of the city leaders of New London, Connecticut when they used eminent domain to seize the property of citizens against their will in order to give it to the Pfizer corporation. This anger grew with the inexplicable decision of the Supreme Court in Kelo v. City of New London to uphold the abusive action. Now, after all of the pain the city caused its own residents and $80 million it spent to buy and bulldoze the property, Pfizer announced this week that it was closing the facility — leaving the city worse off than when it began. For prior testimony on the Kelo decision, click here.

There is an undeniable measure of poetic justice in all of this for a town willing to victimize citizens to benefit themselves with new jobs.

I was appalled by both the decision of the city and the Supreme Court in this controversy. What is most striking is how most citizens of New London stood by and allowed their neighbors to be thrown out of their homes to secure the benefits of a new employer in town.

For the full story, click here.

ACORN is continuing its approach of “the best defense is a good offense.” The group has not only sued the filmmakers who recently disclosed misconduct by the organization, but it is now suing Congress for its ban on federal funding to the organization, alleging a bill of attainder in singling out the non-profit.

I was counsel in the last successful major bill of attainder case in Foretich v. United States, where Congress stripped Dr. Eric Foretich of his parental rights in favor of his well-connected ex-wife Elizabeth Morgan. Here is that opinion: foreitchus121603opn

ACORN has a plausible claim in this legislation. What is surprising is that Congress not only did not wait for a court adjudication of the many allegations of misconduct by the organization but did not take the trouble to create a detailed legislative finding of such misconduct. It is hard to argue that a ban on federal funding is not a form of punishment. I think that this is a strong claim for ACORN.

For the full story, click here.

There is an interesting lawsuit filed in Chicago where Carlos J. Carillo, 23, is suing attorney Stacey Platt and the Loyola Child Law Center for representing him as a minor during a divorce proceeding with his parents but not acting on their knowledge of his mother’s child abuse.

Carillo alleges that Platt “was very aware of the severity and frequency of abuse” that Carrillo’s mother inflicted on him and his siblings but did nothing to try to protect them. He cites a police report showing that his mother pulled a knife on him and threatened to stab him. He states that his mother also stabbed his father in the chest. There are also three court orders requiring his mother to get anger management counseling. He alleges that her abuse ruined his life and wants $500,000 from Platt and Loyola University. He also demands funding for mental health treatment and free college.

The case in intriguing not only due to the passage of time (and possible statute of limitations) but the theory of liability. It is analogous to the famous 1976 ruling in Tarasoff v. Regents of the University of California. and the imposition of liability on a university. See Tarasoff opinion. In that case, Prosinjit Podder, a graduate student at Berkeley, fell in love with Tatiana Tarasoff. When she stated that she wanted to date other men, Podder went to counseling at the University Health Service and is treated by psychologist, Dr. Lawrence Moore. When he told Moore that he wanted to get a gun and kill Tarasoff, Moore sent a letter to campus police who interviewed Podder and decided that he was not a risk. Podder then went ahead and murdered Tarasoff.

In a controversial decision, Justice Mathew O. Tobriner held that “… the confidential character of patient-psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.” As a result, the hospital was held liable for the criminal actions of a third party — something that usually (but not always) cuts off proximate causation. (It also rejected strong arguments made by doctors that such liability would create a chilling affect on counseling. A large number of patients often express their anger by focusing it on individuals and stating an intent to “kill that guy.” In the vast majority of such cases, the open disclosure is addressed and defused. However, if the patient knows that the doctor will have to tell authorities, such feelings are less likely to be expressed and addressed.)

In this case, there is no privilege issue but there is a question of responsibility for the abuse. He is essentially alleging malpractice against the lawyer and the school for failing to fully investigate or act upon evidence of abuse. The proximate causation between that alleged breach and the later injury, however, may be difficult to establish. Either way, this could be a very significant ruling for lawyers and public interest organizations working as guardians or representatives.

There is a conspicuous lack of detail on how Platt allegedly knew about this abuse — reinforcing the suspicion of a frivolous lawsuit. Platt has had a long and distinguished career in the representation of low-income children. The Center itself is also highly regarded for its work on behalf of children. To sustain a case of this kind, Carillo will need to show clear proof of knowledge of abuse. There is an obvious desire among child advocates to keep children with their biological parents and mothers are often given primary custody.

Even if he can prove such actual knowledge, I would be interested in how he tolled the statute since years have passed since he reached the age of majority. None of this takes away from the sympathy for this man’s obviously tragic life. However, he may not find the responsibility or the relief lies with his former counsel.

For the full story, click here.

There is an intriguing case in London where the British courts will decide who is a Jew and who decides such a question. The British have long maintained publicly supported religious schools — an affront to the separation of church and state. Now, inevitably, the state must decide who can be excluded from one of the Jewish schools run by the government. Not surprisingly, at the heart of the controversy is Lord Sacks, Chief Rabbi of the United Hebrew Congregations of the Commonwealth, who recently blamed secularism for the decline and potential fall of Western Civilization, here. He insists that only children with Jewish mothers (recognized in Orthodox synagogues) are truly Jewish.

The daughter of David Lightman was one of the children denied entry in the Jews’ Free School, one of the many publicly supported religious schools. She was denied entry because her mother converted to Judaism in a reform synagogue rather than an Orthodox synagogue. The Jews’ Free School was founded in 1732 and is one of roughly 7,000 publicly financed religious schools..

Sacks and others do not recognize kids as Jewish unless they are recognized by the Orthodox sect. This has been a controversy in Israel for many years and has divided the Jewish population, (here). Many Jews reject Orthodox views and belong to conservative or reform synagogues.

The family of a child identified only as M lost in the initial case, but that ruling was overturned by the Court of Appeals. The Court of Appeals found the use of Sacks’ definition of Jewish was discriminatory and that ““benign or malignant, theological or supremacist, makes it no less and no more unlawful.” Now, the Supreme Court will decided the question.

The case reaffirms that need for separation of church and state. Such questions should not be answered by the government, which should also not be in the business of subsidizing religious education. However, rather than questioning the state support of religious schools, the court will rule on who decides matters of faith — the religion or the State. Normally, I would be very sympathetic with the religious organizations that this is no question of judges to decide. However, these organizations asked for the intermingling of the state with religion — and may now reap the costs of such a failure of separation.

England seems to be moving aggressively away from separation principles with the incorporation of religious courts (here and schools in the system as well as public officials calling for more religion in society . Lord Sacks is one of those insisting that secularism is the cause of the impending loss of Europe to fundamentalism (a veiled reference to Islam). With the recent move by the Obama Administration to support the principle of blasphemy laws (here), the West appears to be moving in the wrong direction. If Sacks is concerned about Western Civilization, he may want to start with the separation of church and state.

For the full story, click here.

The good people at Hezbollah are offering the world another insight into extremist thought. The militant group has banned “The Diary of Anne Frank” from schools as Zionist propaganda by focusing on the plight of some Jews. I suppose when you are teaching kids to blow up innocent people, an account of an innocent victim can appear propagandistic.

What is striking is that the censorship occurred not over the book but simple excerpts from the book shown to school children in a private English-language school in western Beirut. That led to a shrill attack from Hezbollah’s Al-Manar television channel, which asked how long Lebanon would “remain an open arena for the Zionist invasion of education.”

Hezbollah MP Hussein Hajj Hassan criticized the school for exposing the children to a story about a suffering Jewish girl: “These respected, established schools are teaching the so-called tragedy this girl lived, and yet they are ashamed to teach the tragedy of the Lebanese people, the tragedy of the Palestinian people… the tragedy of the people of the south under the hands of Zionist occupation.”

Notably, the Lebanese routinely prevent citizens from reading unapproved material through its censorship bureau, which actually blanked out the chapter in this textbook. However, a student purchased a book privately that had the chapter, which was shown to other students.

There is even a committee for “the ban of Zionist products” that called for the removal of the book. Attorney Naim Kalaani of the committee says that showing the book is a crime. What a wonderful role for a lawyer — criminalizing free speech and possession of a classic book.

For the full story, click here.

Blockbuster and Facebook are the defendants in two interesting privacy lawsuits in Texas where Cathryn Harris is suing them for revealing her name and movie rental tastes. Even more shocking is that anyone is still renting “The Jewel of Nile” with Michael Douglas in 2009.

Harris 25, discovered that every time she rented a movie, Facebook added a note showing the movies that she rented in an agreement with Blockbuster. She insists that “I wasn’t renting any movies that I’m ashamed of, but what if I had been? It’s nobody’s business.” Actually, she should be ashamed. It was a terrible movie and I want everyone to know that Cathryn Harris rents insipid romantic adventure films. There I said it.

Many, however, may be a bit surprised by the agreement between Blockbuster and Facebook, which is part of Facebook’s controversial Beacon system — allowing cross tracking on different sites. It is part of the whole Facebook obsession with keeping everyone up-to-date on everything that you do in a given day.

In 2007, Facebook CEO Mark Zuckerberg apologized for the Beacon system — removing the automatic posting of the information. However, Harris alleges in the two lawsuits (one against Blockbuster and one against Facebook) that Blockbuster still shared the information with Facebook in violation of the Video Privacy Protection Act below.

Facebook is reportedly settling a similar California lawsuit, which may result in pulling plug on the program, here.

The federal law was passed when Supreme Court nominee Robert Bork’s video tastes were disclosed during his contentious nomination fight. His selection were a bit more impressive than Harris’: A Day at the Races, Ruthless People and The Man Who Knew Too Much. Ruthless People can be forgiven as preparation for his time before Congress.

The Video Privacy Protection Act states in part:

(b) Video Tape Rental and Sale Records.—
(1) A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d).
(2) A video tape service provider may disclose personally identifiable information concerning any consumer—
(A) to the consumer;
(B) to any person with the informed, written consent of the consumer given at the time the disclosure is sought;
(C) to a law enforcement agency pursuant to a warrant issued under the Federal Rules of Criminal Procedure, an equivalent State warrant, a grand jury subpoena, or a court order;
(D) to any person if the disclosure is solely of the names and addresses of consumers and if—
(i) the video tape service provider has provided the consumer with the opportunity, in a clear and conspicuous manner, to prohibit such disclosure; and
(ii) the disclosure does not identify the title, description, or subject matter of any video tapes or other audio visual material; however, the subject matter of such materials may be disclosed if the disclosure is for the exclusive use of marketing goods and services directly to the consumer;
(E) to any person if the disclosure is incident to the ordinary course of business of the video tape service provider; or
(F) pursuant to a court order, in a civil proceeding upon a showing of compelling need for the information that cannot be accommodated by any other means, if—
(i) the consumer is given reasonable notice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order; and
(ii) the consumer is afforded the opportunity to appear and contest the claim of the person seeking the disclosure.
If an order is granted pursuant to subparagraph (C) or (F), the court shall impose appropriate safeguards against unauthorized disclosure.
(3) Court orders authorizing disclosure under subparagraph (C) shall issue only with prior notice to the consumer and only if the law enforcement agency shows that there is probable cause to believe that the records or other information sought are relevant to a legitimate law enforcement inquiry. In the case of a State government authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the video tape service provider, may quash or modify such order if the information or records requested are unreasonably voluminous in nature or if compliance with such order otherwise would cause an unreasonable burden on such provider.

The act notably allows for punitive damages:

(c) Civil Action.—
(1) Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court.
(2) The court may award—
(A) actual damages but not less than liquidated damages in an amount of $2,500;
(B) punitive damages;
(C) reasonable attorneys’ fees and other litigation costs reasonably incurred; and
(D) such other preliminary and equitable relief as the court determines to be appropriate.

For a copy of the complaint, click here.

For the story, click here.

Kenneth Herron may have picked the wrong cage but apparently the right counsel. Herron was acquitted of “disturbing dangerous animals” on a novel defense by deputy public defender James Conger. Conger argued that the bears were actually not that disturbed when Herron came into their cage after the San Francisco Zoo closed.

Herron, 21, was facing a misdemeanor charge for entering the zoo on September 26th. He went into the cage with two 500-pound grizzlies. One bear sniffed Herron’s shoe but then fled when a zoo official fired a warning shot. Conger argued that one bear sniffing a shoe does not a disturbed grizzly make.

This is a disturbed grizzly defending against a real cougar (as opposed to a conger).

Notably, this is not the first controversy involving humans versus animals at the zoo, here.

The jury agreed with Conger and found no disturbance. Moreover,
Superior Court Judge Wallace Douglass ruled the day before that a trespassing charge against Herron could not proceed because the prosecution couldn’t prove that he intended to “occupy” the cage — particularly given his mental problems.

In the end, Conger proved that a 150 pound lawyer is more dangerous than two 500-pound grizzly bears.

For future cases, here is a zoological expert on the bear necessities of life:

For the full story, click here.

The gay-rights movement has suffered a harsh defeat at the hands of voters in Maine. The voters repealed a law that allowed for same-sex marriage — reducing the states allowing same-sex marriage or civil unions. Maine is now the 31st state to reject same-sex marriage. [The two men on the state seal are now strictly prohibited from marrying each other in the State of Maine].

With most polls reporting, 53 percent of voters had approved the repeal. At the same time, a liberal measure passed with voters expanding the state’s 10-year-old medical marijuana law — keeping Maine as the third state with New Mexico and Rhode Island allowing marijuana dispensaries. Thirteen states have legalized medical marijuana.

Notably, the other states — Massachusetts, Connecticut, Iowa, New Hampshire and Vermont — have legalized same-sex marriage through court rulings and legislative action. No state has passed a same-sex measure by popular vote.

The only hopeful news is that the vote was relatively close. One has to wonder how President Obama might have made a difference if he supported the law. Obama declined to even state support for the law or a similar campaign in Washington state and Kalamazoo. Obama appears to have forgotten his campaign promises to the gay community to fight for their rights. Even after a year in office, the Administration has yet to even end the “don’t ask, don’t tell” policy — something that Obama can do unilaterally. With such a close vote in Maine, the President’s support might have made the difference.

Personally, while I support recognizing marriage for gay couples as an alternative, I remain convinced that the best approach is for all couples to register civil unions with the states and leave the term “marriage” to individual religions to define, here.

For the full story, click here

This is one of the most incredible videos that I have seen. In the video above, Officer Adam Stoddard with the Maricopa County Sheriff’s Office is clearly shown reading confidential papers of defense attorney Joanne Cuccia while she is addressing the court on behalf of jail inmate Antonio Lozano (accused of fighting with another inmate). He then pulls a sheet from the file on the defense table and gives it to another deputy to be copied.

What is equally amazing is the relatively weak response from Judge Lisa Flores, who could presumably see Stoddard’s actions from the bench. It is possible that she was blocked in her view by counsel. In the video, Lozano appears to be the only person who clearly notices the removal.

When told, however, Flores reacts a bit defensively to objections from Cuccia and tells her repeatedly to calm down, even though Cuccia seems determined but professional in her statements to the court. Flores also immediately offers a justification that Stoddard is there to protect the court — apparently by copying confidential material. Eventually, she suspends the sentencing hearing.

A hearing was later held before Judge Gary Donahoe and the Maricopa County Sheriff’s office defended Stoddard, insisting that he must screen all defense documents that are passed to an inmate. He insisted that, when he walked near the defense attorney’s table, he recognized some documents that weren’t previously screened.

It is true that some courts allow deputies to thumb through papers to be certain that they do not contain contraband or weapons, but this is a cursory inspection. It is a somewhat controversial practice but it is so limited that most attorneys are not concerned because the officers do not read the papers. Most courts do not have this practice. While your papers can be inspected at jails in face-to-face meetings, courtrooms are generally not subject to such inspections. After all, most courts have metal detectors at the entrances. Weapon transfers, therefore, are not a serious threat in counsel-to-client interactions in court. That leaves contraband, which is not a justification (in my view) for such intrusion. We have seen lawyers arrested on such charges (here and here), but it is incredibly rare. It is more common to see deputies arrested for contraband rackets than attorneys.

I have never heard of an officer copying a document at a prison or a court in such an inspection. This document was found by Donahoe to be subject to attorney-client privilege. Stoddard is clearly reading the document and proceeds to take it without notifying Cuccia and making a copy. It is a simply amazing violation of constitutional and confidentiality rules. I am surprised not to have seen a strong statement and intervention from the Arizona state bar in the case, but I hope that will be coming this week.

For the full story, click here.

Former Vice President Dick Cheney found himself in the same position of not only his aide Scooter Libby but countless criminal defendants. He simply could not remember a thing about his involvement in the leaks involving Valerie Plame. Indeed, he had little recollection of his own actions on 72 occasions — even after shown material with his own writing.

The recently released documents only reinforce the view of some of us that federal prosecutor Patrick Fitzgerald was far from the “junk yard dog” that he was portrayed to be in the media. I have been quite critical of the Fitzgerald investigation which seemed to me conspicuously restrained vis-a-vis high-ranking officials like Karl Rove and Cheney. I never understood why Fitzgerald treated Cheney as such a protected figure and gave people like Rove endless opportunities to get his sworn statements right before the grand jury. Fitzgerald said at the time that “there is a cloud over the vice president,” but he still declined to further investigate Cheney or seek an indictment — while going after Libby for what would appear a weaker case of claimed faulty memory.

Libby indicated that it was Cheney who told him Plame’s identity. Fitzgerald seemed to go out of his way to give Cheney every opportunity of escape, including allowing the sharing of investigative material.
Fitzgerald never focused on Cheney even after his lawyer Terrence O’Donnell refused to promise that Cheney would not speak to other witnesses.

While Libby remembered going to Cheney with his notes showing Cheney to be the source of the Plame information, Cheney told the investigatior that he could not “recall Scooter Libby telling him how he first heard of Valerie Wilson. It is possible Libby may have learned about Valerie Wilson’s employment from the vice president … but the vice president has no specific recollection of such a conversation.”

Cheney refused to even answer some questions outright.

On other questions, clarity seemed to break through the confusion. While claiming little recollection on major points, Cheney appears to have had an excellent memory on such issues as such politically sensitive questions as whether Plame’s employment was discussed in connection to her husband Joe Wilson’s criticism of the Administration.

The Justice Department has prosecuted witnesses for such telling gaps in memory. With Cheney, Fitzgerald seemed intent on leaving him as a conveniently absent-minded witness while moving against his top aide.

For the FBI summary, click here.

For the full story, click here.

There is an interesting fight between Planned Parenthood and its former director in Bryan, Texas. (Yes, it appears the same town where the Virgin Mary was recently discovered in bird droppings, here). Abby Johnson worked for Planned Parenthood for eight years, but decided to leave after watching an ultrasound of an abortion procedure. This has led to the filing of a restraining order against her by her former employer after she joined forces with the Coalition For Life.

Abortion opponents have often litigated and legislated to try to force prospective mothers to watch ultrasound images before having an abortion. This case is likely to reinforce such efforts.

Johnson stated that, after seeing the images, she decided to quit: “I just thought I can’t do this anymore, and it was just like a flash that hit me and I thought that’s it.” She resigned on Oct. 6th.

She has claimed that the organization has changed its policies in the bad economy to push for abortions.

Last Friday, she and the Coalition for Life were hit with temporary restraining orders filed by Planned Parenthood, which seeks to prevent her from disclosing information about the organization.

Rochelle Tafolla, a Planned Parenthood spokesperson stated “We regret being forced to turn to the courts to protect the safety and confidentiality of our clients and staff, however, in this instance it is absolutely necessary.”

The parties are expected to square off in court on November 10th.

For the full story, click here

In a potentially important ruling for detainees held by the United States, Illinois U.S. District Judge Michael Mihm rejected prosecution demands and sentenced Qatar native Ali al-Marri to just eight years in jail — with a possible release in less than six years. The reduction from 15 years was expressly tied to the abusive conditions and treatment of al-Marri by the United States while held as an enemy combatant in South Carolina.

Al-Marri admitted he trained in al-Qaida camps and stayed in al-Qaida safe houses in Pakistan between 1998 and 2001. He also had regular contact with Khalid Sheikh Mohammed, the mastermind behind the Sept. 11 attack, and with Mustafa Ahmad al-Hawsawi, who allegedly helped the Sept. 11 hijackers with money and Western-style clothing. He was arrested while a student at Bradley University. He was described as a “sleeper agent” without a current mission. President Bush declared him to be an enemy combatant and sent him to a Navy brig where he was abused in custody by U.S. officials.

Despite al-Marri’s claim of contrition in joining Al Qaeda, Mihm did not buy it: “I believe based on everything that I have heard that you truly do not regret what you did and that you would do it again after you go home.” That statement actually makes the decision more useful for defense lawyers. The reduction was clearly not based on contrition but on the judge’s obvious revulsion at the conduct of his own government: “My personal belief as a judge is that that was totally unacceptable. That’s not who we are.”

Al-Marri, 44, pleaded guilty to conspiring to provide material support or resources to a foreign terrorist organization. Material support is a favorite charge of the Justice Department because it was written by Congress so broadly that virtually any act can be defined as material support.

The Justice Department has suggested that it may appeal, though these decisions are laden with discretion for the trial court. Mihm is a Reagan appointee and a conservative jurist who grew up on a farm in rural Illinois. He recently announced his retirement from the bench.

With hundreds of detainees still held (and reports of similar abuse and torture by the United States), Mihm’s approach could well be duplicated by other civilian judges. It was not the approach taken with Jose Padilla, who was also held in South Carolina. He was given 17 years for conspiracy and the Justice Department moved aggressively to bar the consideration of his abuse in U.S. custody.

For the story, click here.

Associate Judge Robert Livas may be put on a vegan diet. The former prosecutor and former police officer is in hot water over a curious order that he placed for Jamaican-style chicken as part of a plea agreement with Darrius Logan. Logan, 24, pleaded guilty to misdemeanor battery and criminal trespass charges and was sentenced to 100 hours community service. Then things got funky . . . Jamaican-chicken funky . . .

In August, Logan told Livas that he performed his 100 unpaid hours at Uncle Joe’s Jerk Chicken (a curious approach to community service, but there you have it). Livas told Logan to return to court in two month with either proof that he completed his service hours elsewhere or enough spiced chicken to feed the courtroom. Livas took him literally and showed up on October 6th with a tray of Uncle Joe’s jerk chicken, bread and two sides of hot sauce. (The bread and sides were probably to be counted against his next crime).

Here is the exchange from August 4th:

Livas: “If you walk in with enough chicken to feed everybody, I’ll accept these community service hours. If you don’t, I’m not taking any of them. . . . Does that come with slaw?”

Logan: “No, It’s just — it’s barbecue chicken, actually.”

Livas: “That’s great stuff. If you walk around there and feed everybody, it’s going to be OK.”

Livas insisted that he was joking in August, but decided that Logan had moved from his earlier paltry to his poultry submission in good faith: “It forced me to keep my word and accept his original (community service) letter. I give him credit — he made me eat my words.”

He may be eating some serious crow. Chief Judge Gerald Kinney of the 12th Judicial Circuit is not amused and referred the matter for judicial investigation. It is improper to accept foodstuffs and personal benefits in exchange for plea bargain conditions.

Notably, there were objections from the prosecution that something was rotten in the state of Denmark. Assistant State’s Attorney Sondra Demark did not like the idea of accepting chicken from any jerk, let alone jerk chicken. She told her bosses who called the chief judge.

Notably, when Logan appeared with the chicken another jurist, Associate Judge Marzell Richardson, asked “You brought a tray of chicken? . . And that was going to satisfy your community service work?” He sent him to sent him to Livas’ courtroom where the chicken was devoured by the course of justice.

Notably, Livas stated in the transcript “I was so nervous about bringing it in here, though, because I knew everybody was going to laugh at me.” He was right but a few people are notably not laughing.

For the full story, click here.

Kudos: Jordan Silver

In yet another blow to confidentiality on the Internet, Tennessee Judge Thomas Brothers has ruled a married couple that runs a real estate business and a halfway house for recovering drug abusers may confirm the identity an anonymous blogger critic. The critic used a blog called Stop Swartz to accuse Donald and Terry Keller Swartz of Old Hickory, of committing arson, evading taxes and being drug addicts themselves.

The Swartzes claimed that the attacks resulted direct damages: alleging that they “experienced actual damages from the allegedly defamatory statements, including loss of business, harm to their reputations, emotional distress, and the costs of having to hire a security expert to inspect their home.”

The blogger also asked readers to report any movements of the couple that they witnesses.

When you see a Swartz, no matter how trivial it may seem, leave a comment. Extra points if you observe them outside the village. This serves two purposes: First, it helps us all to keep tabs on Don and Terry and to know what they are up to. Second, it sends a clear message to Don and Terry that their actions are not being ignored . . . . We will tolerate their crap no longer.

The Swartzes sued for defamation and invasion of privacy. They subpoenaed Google to reveal the blogger, and the blogger filed a motion to quash.

Brothers ruled “Internet anonymous speech is not entitled to absolute protection” and that “[t]he free speech of the defendant must therefore be balanced with the reputation and privacy interests of the plaintiffs.” In the opinion below, he rejected the test used in Virginia (this is a case of first impression in Tennessee) in favor of the five-step standard established in the 2001 New Jersey case of Dendrite International v. Doe- requiring (1) a reasonable attempt to notify the blogger, (2) a reasonable time to respond, (3) identification of allegedly defamatory statements, (4) a substantial showing of proof, and (5) a balancing of First Amendment interests.

The Court concludes that the Dendrite test is the best method of determining whether a plaintiff is entitled to pierce a defendant’s shield of anonymity. The Court further finds that this factual showing must be made by affidavit, deposition, or sworn statement, and that mere allegations of fact are insufficient. As the Solers and Krinsky courts have noted, the labels of “summary judgment” or even “prima facie” are potentially confusing. By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant’s identity.

While some free speech advocates will not like the result, the opinion is well-written and well-researched. It is a blow against the concept of anonymity in favor of a balancing test, but this is the clear trend of courts across the country.

The litigation appears to have succeeded in shutting down the attacks. In his or her last posting, the blogger wrote:

Th..th..th..that’s all, folks!
We’re done. We are posting no more. We’ll keep this site open so you may communicate with us via our email . Thanks for all your support.

For the complaint in the case: 2008-02-11-Swartz Complaint

For the opinion: 2009-10-08-Swartz v. Does Memorandum and Order on Motion to Quash and Motion to Dismiss

In a surprise verdict, a jury acquitted former judge Herman Thomas of sexual abuse, attempted sodomy, and assault related to allegations that he brought inmates to his chambers for sex and spankings. The judge insisted that he brought the men to his office to “mentor” them, but prosecutors put forward evidence of semen on the carpet and testimony of numerous former inmates that they had sex with him or allowed him to spank them for lenient treatment.

After being acquitted by the jury on major counts (but hanging on other counts), the trial judge directed a verdict on all counts in favor of Thomas.

This is a major victory for defense attorney Robert Clark who insisted that the judge was “trying to get them to do right, to be productive citizens.” Prosecutors put forward evidence that placed a different meaning on what Thomas thought was “getting them to do right” or be “productive.” However, some of their witnesses had to be dropped and one said that he was pressured to implicate the judge by his defense lawyer, here.

Thomas is now going to seek the reinstatement of his law license.

For the full story, click here

There is an incredible story out of Chicago and my alma mater Northwestern University. The Cook County District Attorney has issued a sweeping subpoena to the Innocence Project at the acclaimed Medill School of Journalism — demanding such things as the grades and emails of students who worked on an investigation of the case of Anthony McKinney. The students found compelling evidence of innocence and the prosecutors are now pounding them with demands for personal information and communications. I just completed doing NPR’s Talk of the Nation on the case with Professor Barry Scheck.

The students took three years to compile evidence of McKinney’s possible innocence. He has been in jail for 31 years for a murder that he may not have committed. McKinney was convicted of the murder of Donald Lundahl, a security guard on Sept. 15, 1978.

Professor David Protess of the university’s Medill School of Journalism was hit by the subpoena demanding grades and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews .

It is a transparently hostile effort directed at the students who have previously helped uncover at least 11 false convictions in Illinois. The Chicago prosecutors have been repeatedly embarrassed by these cases of innocence and seem to be much more interested in finding ways to disparage the students than confirming the innocence of this man.

Usually these fights over journalistic privilege begin with an effort to obtain evidence of guilt of a suspect. Here prosecutors are seeking evidence of the motivation of the students — a marginally relevant inquiry at best. The project had already made available its taped interviews with witnesses who have recanted prior or contradicted prior testimony.

Prosecutors are arguing that these are not actual journalists covered under the Reporters Privilege under Illinois law. University student journalists are routinely given the same protection as other journalists. However, the state may argue that they do not fit the definition below:

§ 8-902. Definitions. As used in this Act:
(a) “reporter” means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.
(b) “news medium” means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.
(c) “source” means the person or means from or through which the news or information was obtained.

It would have been wiser to place this project under the law school where the students would have been protected by attorney-client privilege.

The Supreme Court has long given little protection to journalists, particularly student journalists. In Zurcher v. Stanford Daily , 436 U.S. 547 (1978), the Supreme Court rejected first amendment and fourth amendment challenges to a police search of a press office — an effort to obtain photographs of a demonstration that took place at the campus’ medical center in April 1971. The Court rejected claims of any special protection for journalists — prompting the push for “shield laws” like the one in Illinois.

The subpoena here is abusive and excessive. It is shows not only hostility toward the Innocence Project but a contempt for journalistic work by Anita Alvarez, the State’s Attorney for Cook County.

For the full story, click here.

Former Mobile County Circuit Judge Herman is offering a defense in his criminal case that may strike some as more appropriate for the Marquis de Sade than an Alabama jurist. Accused of having inmates brought to his chamber for sex and spanking, Herman insists that he was trying to rehabilitate and educate the men.

There are 11 alleged victims — down from 15 with 50 counts (also a reduction from the original indictment).

His defense attorney Robert Clark insists that Thomas, 48, was just “mentoring them. He was trying to get them to do right, to be productive citizens.”

One of the former inmates has testified that he is not sure why his semen was found on the judge’s carpet, but admitted that he was spanked with a belt by the judge on several occasions.

The prosecutors insist that these inmates were given preferential treatment by the court. Conversely, when some refused, the judge allegedly gave them excessive sentences.

If the judge ultimately admits to the paddling, it will be awfully hard to convince that the forensic and testimonial evidence does not show a less than educational approach to justice.

For the full story, click here.

Former Bush Attorney General Michael Mukasey now appears to be blaming our legal system for the 9-11 attacks as opposed to documented failures by the FBI and the failure of the Bush Administration to heed direct warnings of an imminent attack. In an op-ed piece this week, Mukasey puts the blame squarely on the shoulders of our rights-infested legal system.

Mukasey stated in the Wall Street Journal that “we put our vaunted civilian justice system on display in these [previous terrorism] cases…

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents….”

To bring the point home, the editors added a subheading that reads: “We tried the first World Trade Center bombers in civilian courts. In return we got 9/11 and the murder of nearly 3,000 innocents.”

Mukasey is, of course, the same person who stated under oath that he did not know what waterboarding was. When it was defined for him, he then refused to answer questions about it being torture (here). He is also the man who blocked torture and war crimes investigations (here and here). For a prior column, click here. He is also the man who sought to block investigations into the CIA’s knowing destruction of evidence of torture. He is also the man who blocked efforts to punish Bush officials who politicized the Justice Department, here and here.

Mukasey’s op-ed is a disgraceful effort to use these attacks to further an extremist legal campaign. If there were a right of constitutional defamation, this would meet the test. Our constitution has survived every challenge and we have found that our laws are our strength not our weakness in fighting extremism. Mukasey long ago joined the forces of those at war with our fundamental principles of law and legal process. Not only is his historical revisionism patently absurd, but his legal relativism is patently obvious in this column.

For the full story, click

We often discuss the meaning of judicial restraint, but this dog shows the meaning of restraint that judges and agencies could learn from.

The kitten needs a few points for guts as well.

Prosecutors in Minneapolis have a fascinating case involving assisted suicide and free speech. Nurse William Melchert-Dinkel, 47, is accused of using Internet chat rooms to convince people to commit suicide, giving them step-by-step instructions on how to kill themselves — preferably so he could watch. At least two people are believed to have fed Melchert-Dinkel’s fetish with their deaths: Nadia Kajouji, 18, and Mark Drybrough, 32 (shown here).

Melchert-Dinkel is quoted in such Internet exchanges as “Most important is the placement of the noose on the neck … Knot behind the left ear and rope across the carotid is very important for instant unconciousness and death.” Drybrough hanged himself at his home in Coventry, England in 2005 while Nadia Kajouji, a student at Carleton University, drowned herself in Brampton, Ontario.

Melchert-Dinkel has been stripped of his nursing license but insists that, as for any criminal charges, “nothing is going to come of it. I’ve moved on with my life, and that’s it.”

Well, it’s certainly good to have a life to move on with.

He may be right, however, about the difficulty of a prosecution — though I expect criminal charges will be brought. This is not your standard assisted suicide case since it involves only speech. Police often deal with people who scream Jump! at people standing on the edge of windows or bridges. What is the difference between that act (which is generally not prosecuted) and giving the same advice on the Internet? There is no question that this is a horrible and destructive fetish. However, many people in such chat sites are simply engaging in fantasy.

In the case of Melchert-Dinkel, it seems like he was actually trolling for vulnerable people, but is that a crime? If so, where do we draw the line? There are many caring people who believe in assisted suicide to relieve the pain of the terminally ill (though neither of these victims appear to have been terminally ill). How do you draw the line between giving such advice to someone terminally ill as opposed to depressed or demented on the Internet?

What if Melchert-Dinkel merely used the words to MASH’s Suicide is Painless below in his communications?

Through early morning fog I see
Visions of the things to be
The pains that are withheld for me
I realize and I can see…

That suicide is painless
It brings on many changes
and I can take or leave it if I please.

The game of life is hard to play
I’m gonna to lose it anyway
The losing card I’ll someday lay
So this is all I have to say

That suicide is painless
It brings on many changes
and I can take or leave it if I please

The sword of time will pierce our skins
It doesn’t hurt when it begins
But as it works its way on in
The pain grows stronger…watch it grin

And Suicide is painless
It brings on many changes
and I can take or leave it if I please.

A brave man once requested me
To answer questions that are the key
Is it to be or not to be
and I replied ‘oh why ask me?

And suicide is painless
It brings on many changes
and I can take or leave it if I please.

and you can do the same thing if you please.

It is interesting that the state not the federal authorities are moving on the case. This may be a reflection of the fact that the feds do not have an assisted suicide law as opposed to the Minnesota prosecutors. It could also reflect a concern by the Justice Department that this could be challenged on constitutional grounds.

The state investigators report that Melchert-Dinkel “admitted he has asked persons to watch their suicide via webcam but has not done so.” They state that he used anonymous names such as “Li Dao,” “Cami” and “Falcon Girl.” He was later found to have what a hospital terms as a “suicide fetish.”

For the story, click here.

Today’s column on blasphemy laws may be too narrow. In San Francisco and London, activists are demanding that denigrating someone as fat should be treated as a hate crime like race, age, or faith. “Fatism” is already banned in San Franscisco in housing and workplaces.

The San Francisco law even restricts doctors pressuring patients to lose weight. Now, activists are demanding the same type of protection in London. The effort is part of the Size Acceptance Movement, which probably began with the reign of Henry VIII but was more recently formed to end discrimination against the over-sized. Discriminatory businesses and people (who I presume will be called “fatists”) would be treated the same as people who engage in racist hate speech.

As a fairly Rubenesque male, I am sympathetic but fail to see how such a law can be enforced without putting courts on a slippery slope of drawing a line over weight discrimination. I believe that there is extreme prejudice against fat people in our society. However, hate speech is already a controversial issue over limitations on free speech. To now expand it to include weight issues would threaten to destroy the First Amendment in a series of exceptions. “Fatism” cases will leave free speech itself in a anorexic condition.

For the full story, click here.

Here is today’s column in USA Today on the Obama Administration’s decision to join the U.N. Human Rights Council and support Egypt in recognizing limits on free speech for those who insult or denigrate religion. While the exception was included in a resolution heralding free speech, it was viewed as a major victory for Muslim countries seeking to establish an international blasphemy law.

Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.

While attracting surprisingly little attention, the Obama administration supported the effort of largely Muslim nations in the U.N. Human Rights Council to recognize exceptions to free speech for any “negative racial and religious stereotyping.” The exception was made as part of a resolution supporting free speech that passed this month, but it is the exception, not the rule that worries civil libertarians. Though the resolution was passed unanimously, European and developing countries made it clear that they remain at odds on the issue of protecting religions from criticism. It is viewed as a transparent bid to appeal to the “Muslim street” and our Arab allies, with the administration seeking greater coexistence through the curtailment of objectionable speech. Though it has no direct enforcement (and is weaker than earlier versions), it is still viewed as a victory for those who sought to juxtapose and balance the rights of speech and religion.

A ‘misused’ freedom?
In the resolution, the administration aligned itself with Egypt, which has long been criticized for prosecuting artists, activists and journalists for insulting Islam. For example, Egypt recently banned a journal that published respected poet Helmi Salem merely because one of his poems compared God to a villager who feeds ducks and milks cows. The Egyptian ambassador to the U.N., Hisham Badr, wasted no time in heralding the new consensus with the U.S. that “freedom of expression has been sometimes misused” and showing that the “true nature of this right” must yield government limitations.

His U.S. counterpart, Douglas Griffiths, heralded “this joint project with Egypt” and supported the resolution to achieve “tolerance and the dignity of all human beings.” While not expressly endorsing blasphemy prosecutions, the administration departed from other Western allies in supporting efforts to balance free speech against the protecting of religious groups.

Thinly disguised blasphemy laws are often defended as necessary to protect the ideals of tolerance and pluralism. They ignore the fact that the laws achieve tolerance through the ultimate act of intolerance: criminalizing the ability of some individuals to denounce sacred or sensitive values. We do not need free speech to protect popular thoughts or popular people. It is designed to protect those who challenge the majority and its institutions. Criticism of religion is the very measure of the guarantee of free speech — the literal sacred institution of society.

Blasphemy prosecutions in the West appear to have increased after the riots by Muslims following the publication of cartoons disrespecting prophet Mohammed in Denmark in 2005. Rioters killed Christians, burned churches and called for the execution of the cartoonists. While Western countries publicly defended free speech, some quietly moved to deter those who’d cause further controversies through unpopular speech.

In Britain, it is a crime to “abuse” or “threaten” a religion under the Racial and Religious Hatred Act 2006. A 15-year-old boy was charged last year for holding up a sign outside a Scientology building declaring, “Scientology is not a religion, it is a dangerous cult. “In France, famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy. This year, Ireland joined this self-destructive trend with a blasphemy law that calls for the prosecution of anyone who writes or utters views deemed “grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.”

‘Blasphemy’ incidents
Consider just a few such Western “blasphemy” cases in the past two years:

• In Holland, Dutch prosecutors arrested cartoonist Gregorius Nekschot for insulting Christians and Muslims with cartoons, including one that caricatured a Christian fundamentalist and a Muslim fundamentalist as zombies who want to marry and attend gay rallies.

• In Canada, the Alberta human rights commission punished the Rev. Stephen Boission and the Concerned Christian Coalition for anti-gay speech, not only awarding damages but also censuring future speech that the commission deems inappropriate.

• In Italy, comedian Sabina Guzzanti was put under criminal investigation for joking at a rally that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big poofter (gay) devils, and very active ones.”

• In London, an aide to British Foreign Secretary David Miliband was arrested for “inciting religious hatred” at his gym by shouting obscenities about Jews while watching news reports of Israel’s bombardment of Gaza.Also, Dutch politician Geert Wilders was barred from entering Britain as a “threat to public policy, public security or public health” because he made a movie describing the Quran as a “fascist” book and Islam as a violent religion.

• In Poland, Catholic magazine Gosc Niedzielny was fined $11,000 for inciting “contempt, hostility and malice”by comparing the abortion of a woman to the medical experiments at Auschwitz.

The “blasphemy” cases include the prosecution of writers for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9). A far-right legislator in Austria, a publisher in India and a city councilman in Finland have been prosecuted for repeating this view of the historical record.

In the flipside of the cartoon controversy, Dutch prosecutors this year have brought charges against the Arab European League for a cartoon questioning the Holocaust.

What’s next?
Private companies and institutions are following suit in what could be seen as responding to the Egyptian-U.S. call for greater “responsibility” in controlling speech. For example, in an act of unprecedented cowardice and self-censorship, Yale University Press published The Cartoons That Shook the World, a book by Jytte Klausen on the original Mohammed cartoons. Yale, however, (over Klausen’s objections) cut the actual pictures of the cartoons. It was akin to publishing a book on the Sistine Chapel while barring any images of the paintings.

The public and private curtailment on religious criticism threatens religious and secular speakers alike. However, the fear is that, when speech becomes sacrilegious, only the religious will have true free speech. It is a danger that has become all the more real after the decision of the Obama administration to join in the effort to craft a new faith-based speech standard. It is now up to Congress and the public to be heard before the world leaves free speech with little more than a hope and a prayer.

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

USA Today: October 19, 2009

Below is today’s brief column in the Los Angeles Times where I joined other writers on how each of us believes President Obama can earn the Nobel Prize, here. For civil libertarians, Obama’s selection is the ultimate triumph of hope over experience. My suggestion is probably predictable for people on this blog.

Appoint a prosecutor for war crimes
Jonathan Turley

To truly earn the Nobel Peace Prize, President Obama needs to transform himself from a barrier to a beacon when it comes to human rights and international law.

The most obvious start would be to fulfill our obligations under treaties and international law to appoint a special prosecutor, without limitations, to investigate and prosecute any war crimes committed by U.S. officials. Obama already has acknowledged that waterboarding is torture and that torture is a war crime, yet his administration is blocking investigations that are the prerequisite to justice. Obama has promised CIA employees as a group that they would not be prosecuted for torture for following orders, despite the long-standing finding from the Nuremburg trials that “just following orders” is no defense for a war crime. Appointing a special prosecutor would show that Obama will not continue to circumvent principle for politics. He could further demonstrate his commitment to international law by dropping his opposition to the release of photographs and other records showing our abuse of detainees.

Doing the right thing often demands decisions that are neither popular nor easy. If Obama wants to show that the peace prize is more than the superficial triumph of a cult of personality, he can start by showing that his own country is willing to pay the price demanded by the law of nations.

Jonathan Turley is a law professor at George Washington University and has served as lead counsel in various major national security and constitutional cases.

Keith Bardwell, justice of the peace in Tangipahoa Parish, Louisiana has become an infamous figure overnight after he refused to marry an interracial couple out of concern for their possible children. However, he helpfully explained “I’m not a racist. I just don’t believe in mixing the races that way.”

Could have fooled me.

I take it that he is not a big fan of Othello.

Bardwell seems to be laboring under the misconception that he can administer his office along racial lines and that insisting on people marrying within their race is not racist.

He insists that “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”

“Piles” of minority friends who are even allowed to use his bathroom.

He insists that he is just thinking of the kinder: “There is a problem with both groups accepting a child from such a marriage,. I think those children suffer and I won’t help put them through it.”

In the past 2 1/2 years, Bardwell says that he has refused to marry at least four couples. This includes the most recent “unacceptable” couple Beth Humphrey, 30, and Terence McKay, 32.

They are in the same position as Mildred Loving (Mildred Delores Jeter) and Richard Perry Loving. The interracial couple that led to Supreme Court to strike down the Racial Integrity Act, a state law banning marriages between any white person and any non-white person. While the Lovings were prosecuted under the law, the unanimous ruling in Loving v. Virginia, 388 U.S. 1 (1967) established that it was unconstitutional to deny such licenses to interracial couples.

Obviously, Bardwell has to be stripped of his position. There is also the question as to the status of his bar license since some bars deny licenses to lawyers with known racist views. Finally, there is the potential for civil liability since he is violating the constitutional rights of these couples.

The couple has come forward to express their anger and disgust over the incident, here.

For the full story, click here and here.

President BarackN Obama, the world’s newest Nobel peace laureate, is again expanding on the policies of former President George Bush and fighting to conceal evidence of U.S. torture and abuse. As did the Bush Administration, the Obama Administration is seeking to change the law after courts rejected its absurd argument that the President can withhold photos of detainee abuse simply because they are embarrassing to the United States. Democrats in Congress are assisting in the effort to try to stop the Supreme Court from considering the issue by preempting the litigation.

This is the problem of nominating someone for the Nobel prize less than two weeks after entering office, here. Obama has thus far worked as a barrier rather than a catalyst for international law and values in the areas of torture and abuse. His position in the case of ACLU v. Department of Defense is reprehensible and exceeds the arguments made by Bush. He is claiming that he can deny the media and the public such pictures simply because he views them as controversial and likely to cause anger from Muslims. It is an exception that would swallow the rule.

As some of stated at the time, this argument is legally meritless and that is precisely what the courts have concluded. Now, however, Obama has taken another lesson from Bush. Unable to win on the merits, he has called on Congress to simply change the rules before the Supreme Court can vote. Democrats have joined the effort and are now close to passing legislation to remove the courts from the controversy. This is what Obama supportedW on the telecom litigation, where courts had rejected arguments of executive authority and Congress stepped in to extinguish dozens of public interest lawsuits.

The position of President Obama in the case is disgraceful. Solicitor General Elena Kagan has admitted that the pictures show such things as “soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees.” In another, “a soldier holds a broom as if ’sticking its end into the rectum of a restrained detainee.’” Kagan has taken the extraordinary step of asking the Court to delay considering the case to allow Congress to kill the litigation through legislation. As a result, no court would be allowed to rule on the release of the 87 photographs and authority would be transferred to the Defense Department.

Had Bush done such a thing (giving the Pentagon control) Democrats would have been in the streets. However, Democratic leaders are supporting the effort, the media is largely silent, and the Democratic base is passive. The move contradicts Obama’s pledge of transparency in government. It contradicts his pledge to make a full account of abuses. It makes of mockery of his award of the Nobel for encouraging international “dialogue”. It appears that that dialogue must still occur on the terms set by the United States and specifically avoids evidence that would embarrass the United States or show clearly how it has violated international law.

For the story, click here.

In light of today’s column on cases testing Sotomayor’s views (and possible alliance with conservatives in key areas), this story may be of some interest. Sotomayor joined Chief Justice john G. Roberts, Jr. and Justice Anthony Kennedy in raising concerns over whether courts are violating the constitutional rights of corporations in class action cases.

As noted in the column, corporate law is one area where Sotomayor may shift the court toward the right. In the denial in DTD Enterprises Inc. v. Wells, Kennedy noted “[t]o the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised.” It is an early indications of Sotomayor’s views in the area. This docket is heavily laden with corporate cases.

Here is the statement of Kennedy attached to the denial:

DTD ENTERPRISES, INC., AKA TOGETHER, AKA TO-

GETHER-CLARK, AKA TOGETHER DATING SER-

VICE, ET AL. v. JANICE H. WELLS, ON BEHALF OF

HERSELF AND ALL OTHERS SIMILARLY SITUATED

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR

COURT OF NEW JERSEY, MIDDLESEX COUNTY

No. 08–1407. Decided October 13, 2009
The petition for a writ of certiorari is denied.
Statement of JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE SOTOMAYOR join, respecting the denial of the petition for writ of certiorari.

This case began with a contract action brought by DTD Enterprises, Inc. (hereinafter petitioner), a commercial dating-referral service, against respondent, one of petitioner’s customers. The suit alleged that respondent refused to make payments due under a contract. Respondent answered by bringing a class action against petitioner. The trial court certified the class and ordered petitioner to bear all the costs of class notification, on the sole ground (or so it appears) that petitioner could afford to pay and respondent could not.

To the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised. Where a court has concluded that a plaintiff lacks the means to pay for class certification, the defendant has little hope of recovering its expenditures later if the suit proves meritless; therefore, the court’s order requiring the defendant to pay for the notification “finally destroy[s] a property interest.” Logan v. Zimmerman Brush Co., 455 U. S. 422, 433-34 (1982). The Due Process Clause requires a “‘hearing appropriate to the nature of the case.’” Boddie v. Connecticut, 401 U. S. 371, 378 (1971). And there is considerable force to the argument that a hearing in which the trial court does not consider the underlying merits of the class-action suit is not consistent with due process because it is not sufficient, or appropriate, to protect the property interest at stake.

I nonetheless agree with the Court’s denial of certiorari, for two reasons. First, the petition is interlocutory; the state appellate courts denied petitioner leave to appeal the trial court’s action. Second, petitioner has filed for bankruptcy, and an automatic bankruptcy stay has issued pursuant to 11 U. S. C. §362. Respondents contend that the present action comes within the scope of the automatic stay. If we were to grant the petition we would be required to construe New Jersey law without the aid of a reasoned state appellate court decision and to confront a procedural obstacle unrelated to the question presented. Under these circumstances, it is best to deny the petition. It seems advisable, however, to note that the petition for certiorari does implicate issues of constitutional significance.

U.S. Supreme Court Justice Sonia Sotomayor has joined with two conservative justices to raise constitutional concerns about forcing a dating service to pay the costs of notifying class members in a lawsuit over failed matchmaking.

The Supreme Court denied certiorari in the case, but Justice Anthony M. Kennedy wrote that the suit “does implicate issues of constitutional significance.” Chief Justice John G. Roberts Jr. and Sotomayor both joined Kennedy’s statement (PDF posted by SCOTUSblog).

The dating service, DTD Enterprises Inc. (also known as the Dating Together Service), had sued Janice Wells for failing to make all her payments under the terms of a contract, according to Dow Jones Newswires. Wells responded with a class-action lawsuit contending that DTD failed to make appropriate matches. A judge ordered DTD to pick up the costs of notifying class members because it could afford to do so, while Wells could not pay.

The bill is in for Orly Taitz, the California lawyer leading the “Birther” litigation: $20,000 for sanctionable conduct. U.S. District Court Judge Clay Land previously issued a stern warning to attorney Orly Taitz and others in the so-called “birther” campaign: do not file another such “frivolous” lawsuit or you will face sanctions. Land threw out the lawsuit filed on behalf of Capt. Connie Rhodes who is an Army surgeon challenging her deployment orders due to President Barack Obama’s alleged ineligibility to serve as President. Land (a Bush appointee) noted that “[u]nlike in ‘Alice in Wonderland,’ simply saying something is so does not make it so.” In the most recent order, Land said that Taitz’s conduct “borders on delusional.”

Rhodes previously accused Taitz of filing new papers in Rhodes v. MacDonald without her approval and after she agreed to be deployed by the military. Taitz declared in one filing: “This case is now a quasi-criminal prosecution of the undersigned attorney.” She is already facing a California bar complaint and Rhodes is promising to file a new complaint against her for “reprehensible” representation.

When Rhodes learned that Taitz had filed a motion to stay deployment after she had decided to forego further litigation, she proceeded to fire Taitz by sending a remarkable letter from Office Max on the advice of “Tim who works in the District Clerk’s office.” She stated in the fax:

September 18th, 2009

To the Honorable Judge Land:

Currently, I am shipping out to Iraq for my deployment. I became aware on last night’s local news that a Motion to Stay my deployment had been entered on my behalf. I did not authorize this motion to be filed. I thank you for hearing my case and respect the ruling given on September 16th, 2009. It is evident that the original filing for the TRO and such was full of political conjecture which was not my interest. I had no intention of refusing orders nor will I. I simply wanted to verify the lawfulness of my orders. I am honored to serve my country and thank you for doing the same.

With that I said, please withdraw the Motion to Stay that Ms. Taitz filed this past Thursday. I did not authorize it and do not wish to proceed. Ms. Taitz never requested my permission nor did I give it. I would not have been aware of this if I did not see it on the late news on Thursday night before going to board my plane to Iraq on Friday, September 18, 2009.

Furthermore, I do not wish for Ms. Taitz to file any future motion or represent me in any way in this court. It is my plan to file a complaint with the California State Bar to her reprehensible and unprofessional actions.

I am faxing this as was advised by Tim, who works in the District Clerk’s office. I will mail the original copy of this letter once I have arrived in Iraq.

Respectfully,

CPT Connie M. Rhodes, MD

In her Motion for Leave to Withdrawal as Counsel, Taitz suggested that her client is lying to the Court.
She states that she not only has a (rather obvious) conflict with her former client but may present evidence that is embarrassing to her:

The undersigned attorney comes before this Court to respectfully ask for leave to withdraw as counsel for the Plaintiff Captain Connie Rhodes. The immediate need for this withdrawal is the filing of two documents of September 18, 2009, one by the Court, Document 17, and one apparently by Plaintiff Connie Rhodes, which together have the effect of creating a serious conflict of interest between Plaintiff and her counsel. In order to defend herself, the undersigned counsel will have to contest and potentially appeal any sanctions order in her own name alone, separately from the Plaintiff, by offering and divulging what would normally constitute inadmissible and privileged attorney-client communications, and take a position contrary to her client’s most recently stated position in this litigation. The undersigned attorney will also offer evidence and call witnesses whose testimony will be adverse to her (former) client’s most recently stated position in this case. A copy of this Motion was served five days ago on the undersigned’s former client, Captain Connie Rhodes, prior to filing this with the Court and the undersigned acknowledges her client’s ability to object to this motion, despite her previously stated disaffection for the attorney-client
relationship existing between them. This Motion to Withdraw as Counsel will in no way delay the proceedings, in that the Plaintiff has separately indicated that she no longer wishes to continue to contest any issue in this case. In essence, this case is now a quasi-criminal prosecution of the undersigned attorney, for the purpose of punishment, and the Court should recognize and acknowledge the essential ethical importance of releasing this counsel from her obligations of confidentiality and loyalty under these extraordinary circumstances.

Respectfully submitted,

By:_________________________
Orly Taitz, DDS, Esq.
California Bar ID No. 223433
FOR THE PLAINTIFF
Captain Connie Rhodes, M.D. F.S.
SATURDAY, September 26, 2009

“Quasi-criminal prosecution”? The judge had ordered Taitz to “show cause” why a sanction should not be imposed in the case. He had previously told Taitz that he would consider sanctions if she filed similar claims in the future. After the denial of the Motion to Stay deployment, Land said that the latest filing was “deja vu all over again” including “her political diatribe.” He noted:

Instead of seriously addressing the substance of the Court’s order, counsel repeats her political diatribe against the President, complains that she did not have time to address dismissal of the action (although she sought expedited consideration), accuses the undersigned of treason, and maintains that “the United States District Courts in the 11th Circuit are subject to political pressure, external control, and . . . subservience to the same illegitimate chain of command which Plaintiff has previously protested.”

Then the kicker:

The Court finds Plaintiff’s Motion for Stay of Deployment (Doc. 15) to be frivolous. Therefore, it is denied. The Court notifies Plaintiff’s counsel, Orly Taitz, that it is contemplating a monetary penalty of $10,000.00 to be imposed upon her, as a sanction for her misconduct. Ms. Taitz shall file her response within fourteen days of today’s order showing why this sanction should not be imposed.

I am frankly not convinced that sanctions would be appropriate for filing for a motion to stay deployment per se. At the time of his order, Land did not presumably know that the filing was made against the wishes of the client. If Rhodes was interested in appealing Land’s decision, which is her right, a stay is a standard request. However, the fact that the filing may have been made after Taitz was terminated as counsel and after she was told that Rhodes was abandoning the case is more cause for possible sanctions. Moreover, the low quality and over-heated rhetoric of the filing can support such sanctions. Her filings appear more visceral than legal. In demanding reconsideration of the Court’s earlier order, she used language that does cross the line:

This Court has threatened the undersigned counsel with sanctions for advocating that a legally conscious, procedurally sophisticated, and constitutionally aware army officers corps is the best protection against the encroachment of anti-democratic, authoritarian, neo-Fascistic or Palaeo-Communistic dictatorship in this country, without pointing to any specific language, facts, or allegations of fact in the Complaint or TRO as frivolous. Rule 11 demands more of the Court than use of its provisions as a means of suppressing the First Amendment Right to Petition regarding questions of truly historical, in fact epic and epochal, importance in the history of this nation.

She also (as noted by Land in his later order) essentially accused Land of treason, as she has in public statements:

Plaintiff submits that to advocate a breach of constitutional oaths to uphold the Constitution against all enemies, foreign and domestic, is in fact a very practical form of “adhering” to those enemies, foreign and domestic, and thus is tantamount to treason, as Defined in Article III, Section 3, even when pronounced in Court. The People of the United States deserve better service and loyalty from the most powerful, and only life-tenured, officers of their government.

Taitz is also facing a California Bar complaint, here. Ohio lawyer (and inactive California bar member) Subodh Chandra wrote the bar, stating “I respectfully request that you investigate Ms. Taitz’s conduct and impose an appropriate sanction. She is an embarrassment to the profession.” For that complaint, click here.

A complaint by a former client would likely attract more attention by the Bar. These are now serious allegations including misrepresentation, false statements to the Court, and other claims that will have to be addressed by a Bar investigation. This could take years to resolve — perhaps just in time for Obama’s second inauguration.

The court ruled that Taitz violated Rule 11 of the Federal Rules of Civil Procedure in filing frivolous papers. Declaring the filings as made in “bad faith,” the court concluded that Taitz’s legal conduct was “willful and not merely negligent.” Sanctions were warranted, he held, because “Counsel’s frivolous and sanctionable conduct wasted the Defendants’ time and valuable judicial resources that could have been devoted to legitimate cases pending with the Court.”

“When a lawyer files complaints and motions without a reasonable basis for believing that they are supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege to practice law,” Land writes. “When a lawyer uses the courts as a platform for a political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law. When a lawyer personally attacks opposing parties and disrespects the integrity of the judiciary, that lawyer abuses her privilege to practice law. When a lawyer recklessly accuses a judge of violating the judicial code of conduct with no supporting evidence beyond her dissatisfaction with the judge’s rulings, that lawyer abuses her privilege to practice law. When a lawyer abuses her privilege to practice law, that lawyer ceases to advance her cause or the ends of justice. . .

Regrettably, the conduct of counsel Orly Taitz has crossed these lines, and Ms. Taitz must be sanctioned for her misconduct. After a full review of the sanctionable conduct, counsel’s conduct leading up to that conduct, and counsel’s response to the Court’s show cause order, the Court finds that a monetary penalty of $20,000.00 shall be imposed upon counsel Orly Taitz as punishment for her misconduct, as a deterrent to prevent future misconduct, and to protect the integrity of the Court. Payment shall be made to the United States, through the Middle District of Georgia Clerk’s Office, within thirty days of today’s Order. If counsel fails to pay the sanction due, the U.S. Attorney will be authorized to commence collection proceedings.

I expect that Taitz will appeal the decision, given her past statements. The opinion goes into considerable detail on her conduct and interaction with the court, as shown below.

For the decision, click here.

For the story, click here

Here is this week’s column from Roll Call. It explores the interesting selection of cases this term for the Supreme Court. Justice Sonia Sotomayor’s colleagues could not have selected cases more carefully to address areas of uncertainty from her confirmation hearing. Whether by accident or design, this docket is front-loaded with cases that will force Sotomayor to show her true colors in the first few months of her tenure as an associate justice.

Justices in the past have often described the first week of a new session as a lot like the start of a new school year with old friends talking about the summer and new friends getting acquainted. Of course, this new term starts with a “new kid” of the block Justice Sonia Sotomayor. Many people are speculating whether she will be a BFF for the liberals or, like Justice Anthony Kennedy, an uncertain friend to both sides? For those looking for the new line-up on the Court, they will not have to wait long. The docket is front-loaded with cases raising fundamental questions where Sotomayor will have to speak clearly on her view of constitutional protections.

This term will show whether we have not one but two consistent swing justices. Since the departure of Sandra Day O’Connor, Anthony Kennedy is often the only thing standing between a constitutional right and its reduction or expansion.

For Sotomayor to assume O’Connor’s role would be a bitter thing for liberals who expected a more consistent liberal nominee from Obama – particularly given Bush’s appointment of two consistent conservative justices. With control of Congress and Obama in the White House, it would be like having the capital for a beach mansion and ending up with a condo time share.

The Court has selected cases that may rekindle old ideological allegiances among the justices, forcing both Sotomayor and Kennedy to return to “first principles” in their views of free speech, federalism, free exercise of religion and gun rights. During her confirmation hearing, Sotomayor was hounded by questions in two areas: free speech and gun rights. To a remarkable degree, her colleagues have chosen cases almost tailor-made to force Sotomayor to choose sides on those very questions. As if to personalize the term further for Sotomayor, the justices also loaded the docket with corporate cases – an area where Sotomayor (who practiced corporate law)is likely to depart from her liberal colleagues.

Last month, the Court accepted a major handgun case, McDonald v. Chicago, that will define the scope of the recently recognized individual right under the Second amendment. The Seventh Circuit ruled that gun ownership is not a “fundamental right” that applies to the states. That is precisely the position reached by Sotomayor while on the Second Circuit in two controversial cases. She argued that this was a question that had to be left to the Supreme Court and that, absent such a ruling, it is assumed that the right only applies to the federal government. Now, she will help answer the question posed for the Court. For her and her colleagues, the decision will pit state rights against gun rights.

Sotomayor was also criticized by liberals for her voting in an important case to curtail free speech rights of high school students. She will now rule on two cases that raise fundamental questions of free speech. These cases will also test the solidity of conservative block on the Court, particularly Justice Kennedy.

The first of the two cases was heard in a rare September re-argument, involving “Hillary: The Movie” – a 90 minute film released during the presidential election that is a virtual diatribe against Clinton. At issue is the constitutionality of one of the major parts of the campaign finance law and whether corporations should enjoy free speech rights like individual citizens.

Another potentially sweeping case will be heard on the second day of the new term: United States v. Stevens. The case will test the Court’s willingness to stand on the principle of free speech to protect material that contains cruel and disturbing content. Robert J. Stevens of Pittsville, Va., was convicted under a federal law for selling videotapes of fighting pit bulls and sentenced to 37 months in prison. The case law has largely drawn a bright line between criminalizing the conduct (here dog fighting) as opposed to speech containing such images or photographs. If there is an exception for material showing cruelty to animals, how about cruelty to women, police officers, or just cruelty?

In addition to these two free speech cases, the Court also accepted cases that will test press rights and religious rights under the First Amendment. In Department of Defense v. ACLU, the Court will decide whether President Obama can withhold detainee abuse photographs simply because they would embarrass the United States and anger Muslims. In Salazar v. Buono, the Court will consider an 8-foot-tall cross in the Mojave National Preserve in Southern California — erected by the Veterans of Foreign Wars in 1934. The veterans are claiming a secular purpose for the cross in what would be a major exception under the separation of church and state. As with the Stevens case, they are the type of cases where First Amendment advocates fear Sotomayor or Kennedy might abandon bright-line rules for compromise decisions.

Likewise, the Court will have to reexamine the Eighth Amendment in two companion cases from Florida — Graham v. Florida and Sullivan v. Florida. These cases raise the question of whether the Eighth Amendment’s protection against cruel and unusual punishment apply to juveniles in non-homicide cases. The Court previously adopted a different standard for juveniles in death cases but these cases will address whether a similar standard should be applicable to sentences of juveniles for life without parole.

If her years on the Second Circuit are any measure, Sotomayor is likely to continue her role as a swing voter in some areas. Of course, she could be a surprise (like Souter) in tilting sharply to the left of the Court. Either way, the members appear to have picked a docket that will “assort out” the class of 2009 — and there may be two justices left in the middle at the end of it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University where he teaches a course on the Supreme Court.

Israeli Prime Minister Benjamin Netanyahu has vowed not to allow any Israelis to stand trial for war crimes even if demanded by the United Nations or world court. It is a position that defies the entire basis of international legal process created by the Nuremberg Tribunals since no country has a right to determine its own innocence. As previously noted, the Goldstone Commission found credible evidence of war crimes in the Gaza campaign.

With Netanyahu’s announcement, both Israel and the United States are now blocking war crimes investigations of their own officials.

Netanyahu simply dismissed the position of the United Nations commission and insisted that “[t]he truth is exactly the opposite. Israel’s leaders and its army are those who defended the citizens of Israel from war criminals.”

Many of us agree that Israel had a right to defend itself against attacks by Hamas. However, Israel and the United States are undermining the legacy of Nuremberg as little more than “victor’s justice” when they refuse to submit to such investigations or prosecutions. Every nation accused of such crimes from Nazi Germany to Japan to Serbia have denied the allegations, but have been forced to cooperate in the adjudication of the claims. The most fundamental premise of international law is that countries must yield to such independent adjudication. The fact is that much of the findings concerned not Israel’s right to defend itself but how it carried out the invasion, including the use of prohibited weapons and tactics. I do not have an inkling of the truth of these allegations but that is the point of an international tribunals when there are such allegations of the violation of international law.

Simply calling the Goldstone report “a kangaroo court against Israel,” as does Netanyahu, only unilaterally claims the right to refuse to comply with international agreement and international law when you claim innocence. With Israel threatening an attack on Iran and demanding an international investigation of that country, it can hardly afford to put itself at odds with the very foundation of international law.

For the full story, click here.

We have another case of a child dying from a relatively minor condition while surrounded by praying adults. Kent Schaible, 2, died of bacterial pneumonia because the parents Herbert and Catherine Schaible believed in faith-healing and declined to get medical attention for the child in Philadelphia. This is strikingly similar to the case of Leilani and Dale Neumann in Wisconsin who were recently given light sentences in such a faith-based case. As shown below, difficult questions are raised by the disparate treatment given parents who neglect children for religious as opposed to non-religious reasons.

For almost two weeks, Kent’s conditions grew worse and included a variety of obvious symptoms of growing medical danger, including sore throat, congestion, liquid bowel movements, sleeplessness and trouble swallowing. A simple prescription of antibiotics or even Tylenol may have kept him alive. Instead, the parents and other adults prayed around him until he was dead and then called a funeral home.

The parents are charged with involuntary manslaughter, conspiracy to commit involuntary manslaughter and endangering the welfare of a child.

Herbert Schaible, 41, and Catherine Schaible, 40, are members of the First Century Gospel Church. They told police “[w]e prayed to God for victory . . . We were praying that he would be raised up.”

For the Philadelphia story, click here.

What is fascinating about this case is that treatment in the legal system. In cases where parents simply neglect their children, the courts and prosecutors often seek murder charges or long sentences. However, if you fail to take the same measures as a religious matter, you often face lesser charges and more lenient treatment. In this case, the court simply called the parents “misguided” while holding them over for arraignment.

In another case in Wisconsin, Dale and Leilani Neumann declined to get medical attention for their 11-year-old daughter, Madeline Kara Neumann, who died of an undiagnosed but treatable form of diabetes. While they could have received 25 years in prison, the court gave them six months in jail and 10 years probation.

Marathon County Circuit Court Judge Vincent Howard said the Neumanns were “very good people, raising their family who made a bad decision, a reckless decision.” He then gently encouraged them to remember that “God probably works through other people, some of them doctors.”

Kara also died surrounded by adults praying rather than calling for medical help. Medical staff was not called until she stopped breathing. Leilani Neumann, 41, was unrepentant at sentencing (something that usually results in higher sentences): “I do not regret trusting truly in the Lord for my daughter’s health. Did we know she had a fatal illness? No. Did we act to the best of our knowledge? Yes.”

Dale Neumann, 47, also reaffirmed the correctness of their actions: “I am guilty of trusting my Lord’s wisdom completely. … Guilty of asking for heavenly intervention. Guilty of following Jesus Christ when the whole world does not understand. Guilty of obeying my God.”

Notably, the parents will not even have to serve six months consecutively, but will serve one month in jail each year for six years and must allow a public health nurse to examine their two underage children at least once every three months.

Dale Neumann, a former Pentecostal minister, however, promised to continue undeterred in their faith-based policies: “We live by faith. We are completely content with what the Lord has allowed to come down, but he is not done yet.”

The faith-based cases are only the latest such cases in a series of such deaths of children, here.

The policy question is why parents who neglected their children and cause injury (as opposed to death) are given far harsher punishments as parents who actually kill their children as a matter of faith. Clearly, intent and scienter should play a role in sentencing but the difference in punishment is remarkable. The Neumann’s actions resulted in the death of their child and they received a sentence close to what Russell J. Wozniak Jr., 26, and Jennifer Ann Wozniak, 23, received for allowing their two-year-old to wander around covered in vomit with a full diaper, here.

Consider the comparison with the case of Alex Washburn, 22-months, who died a couple days after falling and hitting his head. Elizabeth Dawn Thornton, 22, and Christopher Steven Washburn, 32, insisted that the boy fell a lot and hit his head on the corner of the table and his chin on a toilet. No evidence was submitted to contest that account. Moreover, the parents apologized for not seeking medical help and agreed to terminate their parental rights to the other children. Christopher Washburn told the court “I wish I did seek medical treatment for my son faster. That will definitely be with me for the rest of my life.”

The Court imposed sentenced both parents to three to 15 years in prison. So, the Neumanns get one month in jail for six years (and keep their children despite refusals to apologize) and the Washburns get up to 15 years in prison (and agree to give up their parental rights).

These cases suggest a considerable discount given people who claim a religious motivation rather than simple neglect. While the former cases occur with intent to deny medical care, they are treated as bad choices rather than serious crimes in many cases.

For the full story, click here.

In Raleigh, James Nichols says he wants to find God but he can’t find him in North Carolina. The convicted sex-offender was arrested when he tried to attend church because he is not allowed to be present on any property where children are present, such as in the church’s daycare center. It is only the latest in a series of cases that pit the freedom of religion against sex offender laws.

We have previously seen cases of sex offenders raising free exercise claims, here. As politicians impose wider and wider prohibitions on where sex offenders may live or work, ex-felons are having to live in forests and under bridges to avoid prohibited areas, here. In some cases these laws amount to virtual banishment by barring virtually every block in a given city, here.

To add to the problems, states have been defining sex offender to include a wide array of offenses, including consensual acts between teenagers, here.

Nichols, 31, was convicted twice of indecent liberties with a teen girl and again in 2003 for attempted second-degree rape. He is barred under a law that bars his being within 300 feet of any place intended primarily for the use, care or supervision of minors among other geographic limitations. Thirty-six states establish such prohibited zones. He was arrested after attending Sunday services at the Moncure Baptist Church.

State legislators are unapologetic. Democratic state Sen. David Hoyle, who sponsored the law insists, “I’m not denying him the right to go to church. He denied himself that . . . If they are a convicted pedophile, they have given up a lot of their rights.” I would have thought that politicians would want offenders to find God and seek a moral lifestyle.

These cases will present a fascinating challenge under the free exercise clause and could impose some limitations on the current rush to expand prohibited zones for ex-offenders.

For the full story, click here.

We have been following the bizarre case of former Mobile County Circuit Judge Herman Thomas who is accused of ordering the male inmates be brought to his chambers where he would spank them and have sex with them. With the judge facing trial on various criminal charges, the case took another strange turn when a former inmate charged in a lawsuit that his former attorney coerced him into testifying against the judge. The case of Willie Pearson was dropped after he accused attorney Joe Kulakowski of threatening him. However, the prosecutor insists that the other cases will proceed as planned for trial.

Thomas now has 14 cases against him and the trial is in the jury selection stage. The trial could begin as soon as today.

While Thomas insists that he is entirely innocent, a forensic examination matched a semen stain on his carpet to one of the nine alleged victims.

Thomas, 48, has insisted that this is all due to race: “Did you ever think of the fact that this is the only black circuit judge we’ve ever had in Mobile County, and that the right-wing Republicans have gotten rid of him?” His attorney echoed the sentiment, telling CNN “[t]he South hasn’t changed all that much.”

Thomas is married with a wife and daughters. He is facing serious jail time, including a potential for effective life imprisonment for such charges as kidnapping. It is an interesting charge since he presumably kidnapped the inmates by arranging them to be brought to him by deputies.

The civil claims against the attorney presents some novel issues. First, the defense will likely want to get in such evidence, but, with that individual case dropped, the prosecutors are likely to oppose on the ground that it is not relevant. Second, the attorney could face a criminal and bar investigation. The prosecutor would be in a strange position since he believes there is a basis for the allegations as a whole. Moreover, the attorney could claim that he was merely trying to assist the prosecution while also strengthening any potential civil action against the judge.

For the full story, click here.

As if by divine intervention, the debate over the separation of church and state was answered today — even as the Supreme Court took up the case of Salazar v. Buono ( 08-472). This picture clearly shows Jesus giving the Constitution to the drafters — resolving any suggestion that the original framers envisioned a separation. It came directly from Jesus and should moot the case heard by the Court today.

Before this evidence was produced, the Court was poised to decide whether religious symbols in military cemeteries fail into an exception under the first amendment. The war memorial in California’s Mojave National Preserve features an 8-foot-high cross that was erected with a plaque commemorating the “Dead of All Wars.” A former National Parks Service member, Frank Buono, sued in 2001 and challenged the cross as violating the Constitution’s ban on the establishment of religion. However, as this picture shows, there was no other deity present. The picture shows the conspicuous absence of Buddha, Muhammad, Yahweh, or any number of Hindu Gods. It is not clear whether the Court can take judicial notice of such evidence and save itself a lot of trouble.

In the meantime, the Obama Administration and Solicitor General Elena Kagan are again at odds with civil libertarians — opposing Buono and seeking to bar the action for lack of standing. This comes at the same time that the Administration is supporting efforts to limit free speech in the United Nations to protect religion from some critics, here. Obama ran on a faith-based political message, here.
The case could create a broad “secular purpose” exception that would swallow the rule. With the replacement of Justice Sandra Day O’Connor with Justice Samuel A. Alito Jr. the center of gravity of the Court may have shifted since the 2005 cases. It is also unclear where Justice Sonia Sotomayor would stand on such an exception.

Of course, now that the evidence is in, the Court can start to construct a mandatory entanglement doctrine between church and state.

This site has already begun analysis of the picture as shown by dragging your cursor across the various figures.

For the story on the Mojave cross, click here.

Below is today’s column on the first day of the October Term for the Supreme Court. It specifically explores the first amendment cases on the docket. There are four major such cases thus far on the docket and, most importantly, two free speech cases that will be strong indicators of the views of Justice Sonia Sotomayor.

The start of the U.S. Supreme Court’s fall term is always a much-anticipated event. This year, it is likely to receive more attention than usual, with a new justice being seated and conjecture that another plans to resign.

David H. Souter is no longer on the court, and this will be the first term for his replacement, Justice Sonia Sotomayor. It may be the last term for Justice John Paul Stevens, liberal icon of the court. The growing speculation that Stevens plans to retire next year was fueled by his recent decision not to select a full complement of clerks for 2010 — a strong signal that he doesn’t intend to remain on the bench.

For the most part, however, all eyes will be on Sotomayor. Most of the court handicappers will be watching for early signs of how she might depart from the liberal voting record of her predecessor. Originally a Republican nominee to the trial court (though later put on the appellate court by President Clinton), Sotomayor was suggested as a nominee for President George W. Bush and has a more conservative voting record than Souter. If she votes the way she voted on the appellate court, liberals will lose ground with her selection.

Sotomayor will be tested in one of the areas of greatest concern to liberals — free speech — at the very start of her tenure on the court. Sotomayor was opposed by some free-speech advocates, in part because of her vote in Doninger vs. Niehoff, in which the appeals court upheld the right of school officials to punish students for out-of-school speech — in what some considered a major blow to both the 1st Amendment and student rights. Notably, the panel acknowledged that it was not bound by existing precedent from the Supreme Court in denying free-speech protections to students.

Sotomayor’s first free-speech case at the Supreme Court came even before the official beginning of the term. In a rare re-argument of a case, the justices convened court in advance of this month’s opening to hear arguments in a case involving “Hillary: The Movie.”

At issue in the case — a ruling is still pending — may be the viability of one of the major parts of campaign-finance law. The case is actually more compelling than the movie, a 90-minute diatribe against Hillary Rodham Clinton released by the conservative group Citizens United during her 2008 presidential bid. The Federal Election Commission ruled that the film was “prohibited electioneering communication.”

The court in June asked to hear additional arguments regarding an earlier court ruling that upheld the constitutionality of a provision of the McCain-Feingold campaign-finance law.

For many free-speech advocates, it is hard to declare this film to be electioneering but not other films, such as liberal Michael Moore’s anti-Bush documentary, “Fahrenheit 9/11.” Sotomayor’s vote, although unlikely to determine the outcome of the case, may offer insight into her thinking on the 1st Amendment and whether corporations enjoy free-speech rights analogous to individuals.

At the start of the fall term, Sotomayor will be tested in yet another case raising fundamental speech rights. On Oct. 6, the court will hear United States vs. Stevens, involving a federal law making it illegal to sell photographs and films of the maiming and killing of animals. Among other things, the law criminalizes so-called crush films, in which models are shown crushing small animals with stiletto heels and other objects.

Robert J. Stevens of Pittsville, Va., was convicted under the law for selling videotapes of fighting pit bulls and sentenced to 37 months in prison. However, the appellate court struck down the law as unconstitutional, holding that there is no exception to the 1st Amendment for animal cruelty as there is for obscenity. The government is seeking to get the court to create another exception to the 1st Amendment, in what free-speech advocates fear will be part of a continued erosion of this fundamental right.

The case will test Sotomayor’s commitment to principle over the prejudicial elements of the crime. The justices will clearly find Stevens and his films of dogfights repugnant. However, there has been a line drawn under the 1st Amendment in which criminal conduct can be prosecuted even as speech is protected. The government can clearly arrest people for holding dogfights or organizing or transporting dogs for such fights. The question is whether selling material with such images is protected by the 1st Amendment if an individual did not participate in the criminal activity. The concern is that Congress will continue to add exceptions for areas viewed as offensive or cruel — abandoning a bright-line rule that has protected speech while allowing the prosecution of illegal conduct.

Given her conservative approach in some cases on the appellate court, Sotomayor could change the outcome in the case, because Souter was viewed as more likely to favor the position of the appellate court and free-speech advocates.

Whatever the outcome of these cases, one thing is clear: Court-watchers will not have to wait long to hear the voice of Sotomayor in the area of free speech. It could be a voice that resonates for decades for citizens and the 1st Amendment..

Jonathan Turley is a law professor at George Washington University, where he teaches a course on the Supreme Court.

For coverage of the Stevens argument, click here.
Published October 5, 2009: Los Angeles Times

Judge Charles J. Markey is asking for a public rehearing. The New York Law Journal and the ABA Journal ran a story detailing how Markey allegedly denied a motion or dismissed a case due to improper stapling. The story was picked up on various legal blogs, including this blog. However, Markey has written a letter to the editor insisting that the facts have been distorted and that this was no “case of first impression” of dismissal for negligent stapling. He seems to have a case.

Markey notes that he only denied a motion and did not dismiss the case. Moreover, it was a denial without prejudice and, most importantly, the stapling section was meant merely as an instruction for the future and not a basis for the holding.

Here is his letter:

October 02, 2009
I am writing you to set the record straight regarding an inaccurate and misleading item that appeared in the “News in Brief” column on page 1 of the Sept. 24 Law Journal.
Although a correction was printed on page 2 in your Sept. 25 edition, I have since been hit with rather negative comments and queries regarding the distorted description of my decision on a motion in the matter of Jones v. Fuentes. (The decision is published below.) It is hoped that this letter and the brief decision will more effectively correct the error and subsequent misunderstanding.
Contrary to the article, I did not dismiss the underlying action. I cited deficiencies in the unopposed papers submitted for a default judgment in a motor vehicle accident case allegedly resulting in injury to plaintiff. A lengthy written decision was unnecessary, and it was, therefore, brief and to the point. And, please note, the motion was denied, without prejudice with leave to renew upon submission of proper papers.
What excited everyone’s attention was the reference to the drawing of blood as the result of sloppy assembly of the papers. The commentary in the decision was meant to be instructive and cautionary. That’s all.
Charles J. Markey
The author is a Queens Supreme Court Justice.

Here is the correction published by the journal”

Correction
September 25, 2009
A News in Brief item yesterday, “Lawyer’s ‘Poor’ Stapling Provokes Motion’s Dismissal,” incorrectly implied that Queens Supreme Court Justice Charles J. Markey dismissed a complaint on the basis of poor stapling. Rather, Justice Markey denied a motion for default judgment. In addition, he cited two other grounds for rejecting the motion: the notice of motion was not signed by counsel and the papers lacked any affidavit by the plaintiff as to her injuries.

While the court did elevate stapling to the inclusion in an opinion (which why it was legitimately notable for the journal), he was listing the failings of counsel in the case and not basing the decision on stapling. Indeed, the motion appears properly dismissed based on the first two findings. However, this will mean that Markey will not be offered the “Jurist of the Year” Award by the National Fasteners Association.