Wiggins was arrested after police detected “an overwhelming odor of marijuana” in the judge’s room at the local Hilton hotel in College Station. Wiggins was due to attend the V.G. Young Institute: School for County Commissioners Courts.

Wiggins was arrested with possession of less than 2 ounces of marijuana and police report that he admitted that he was smoking pot.

The arrest for a misdemeanor does not always lead to the removal of a judge from the bench or a resignation. However, it seems likely in this case. Judges are occasionally charged with DUI but do not always leave the bench.

Do you feel that 2 ounces of marijuana should be grounds for removal?

Here is his court bio:

Mike Wiggins was elected Guadalupe County Judge after winning the Republican Primary Runoff on April 11, 2006. He was sworn into office on January 1, 2007, becoming the 31st Guadalupe County Judge. And, he is a native Texan!A retired Texas DPS Sergeant, Wiggins has served his State for thirty years; the last fourteen years were served here in Guadalupe County where he was responsible for the DPS operations, he received extensive budget experience with the Texas State Legislature and was responsible for the local emergency management operations. He received his Police Administration Diploma from Northwestern University, and continuing coursework from St. Edwards University and Lamar University.

Active in many civic organizations, he was a founding board member of the Seguin Outdoor Learning Center and the Guadalupe County Children’s Lodge; he has served as president of the DPS Officers Association; past president of the Seguin Little League Board; an active board member of Buck Fever, Committee Chairman of Bass Fever; a booster member of Seguin Sports; an active member of the Seguin Area Chamber of Commerce and the Seguin Hispanic Chamber of Commerce.

In his campaign for County Judge, Wiggins pledged to provide a new level of leadership, guidance and direction of the County, to advocate for emergency services, seek federal funding, and continue to support and preserve the ranching and agricultural heritage of Guadalupe County.

Source: San Antonio as first seen on ABA Journal

The Pregnancy Discrimination Act of 1978 (PDA), codified at 42 U.S.C. § 2000e(k), provides:

The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in [**8] their ability or inability to work….

The question is whether breast feeding is an affect or medical condition linked to pregnancy.

Hughes adopted a narrow view of discrimination on the basis for pregnancies: “Discrimination because of pregnancy, childbirth, or a related medical condition is illegal. Related conditions may include cramping, dizziness, and nausea while pregnant.”

The opinion, however, does not offer a full explanation of distinction and is fairly conclusory. He cites however earlier cases finding lactation claims to be outside of the protection of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.” A more substantial treatment of the subject is found in cases like Fejes v. Gilpin Ventures, 960 F. Supp. 1487 (D. Colo. 1997) (which was the basis for the decision in the first case cited by Hughes). The court held that

“In appending the PDA amendment to Title VII, Congress considered the statement that “if a woman wants to stay home to take care of the child, no benefit must be paid because this is not a medically determined condition related to pregnancy.” H.R. No. 948, 95th Cong. 5, reprinted in 1978 U.S.Code Cong. & Admin.News, 5, 4749, 4753. Nothing in the PDA, or Title VII itself, obliges an employer to accommodate the child-care concerns of breast-feeding workers. If Congress had wanted these sorts of child-care concerns to be covered in Title VII by the Pregnancy Discrimination Act, it would have said so in plain language”

Likewise, in in Wallace v. Pyro Mining Co., 789 F. Supp. 867 (W.D.Ky.1990), aff’d without opinion, 951 F.2d 351 (6th Cir.1991), the court ruled:

Nothing in plaintiff’s case states a claim under Title VII as amended by the Pregnancy Discrimination Act…. While it may be that breast-feeding and weaning are natural concomitants of pregnancy and childbirth, they are not [**9] “medical conditions” related thereto. Admittedly, the act does not define what constitutes “related medical conditions.” However, the substantive references to “related medical conditions” within that legislative history are all in the context of the extent to which female employees can be denied medical benefits, such as sick leave and health insurance coverage, arising from pregnancy and childbirth. Further, Congress’ express intent was to codify … EEOC guidelines that required “employers to treat disabilities caused or contributed to by pregnancy, miscarriage, abortion, child-birth and recovery therefrom as all other temporary disabilities.” H.R. No. 948, 95th Cong. 2, reprinted in 1978 U.S.Code Cong. & Admin.News, 4749, 4750.

Courts will often decline to “gap fill” an ambiguous statute in favor of leaving the question to Congress — particularly when an argument would impose consider costs on either the country or employers. It will be interesting to see if this is an issue upon which Congress will want to be heard as courts bar such claims. I view the nexus between lactation and pregnancy to be closer than these courts suggest. Certainly, some law professors in the field strongly contest the view of these courts. Regardless of how one comes out on the issue, it would seem worthy of congressional hearings.

Here is the opinion: Employment Opinion

Source: ABC as first seen on ABA Journal

Majumder was caught by the judge who looked down from the bench only to see pornographic images on his computer screen. Majumder viewed about 30 images during the two days and later said that he watched a great deal of porn and was only finding sites to watch later at home. He said that it helped with boredom in the job.

His lawyer argued that a stroke suffered months ago may have affected his judgment.

Source: NBC

The ruling can now be appealed to the Supreme Court, but it is likely to be first appealed to the full en banc court of appeals.

The three-judge panel is composed of Reinhardt, an appointee of former President Carter; Michael Daly Hawkins, an appointee of former President Clinton; and N. Randy Smith, appointed by former President George W. Bush. During oral argument, the questions appeared to favor those challenging Proposition 8. The panel, however, did raise procedural concerns.

Walker’s status as a gay man in a same-sex relationship became part of the appeal with Proposition 8 backers arguing that he had a potential conflict-of-interest. They insist that he did not properly reveal his relationship before declaring Proposition 8 unconstitutional in August 2010. On April 6, 2011, Walker disclosed that he is gay and has been in a relationship with a male doctor for about ten years.

The panel held “Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.”

The court notably found standing for the parties to sue — a major question in the case. Even in his partial dissent, Smith still agrees with the majority that the parties had standing and that the motion to vacate should be denied. However, he believes the law satisfied the rational basis test and should have been upheld.

I expect an en banc challenge in the case, particularly with a divided panel decision.

Both opinions are well-reasoned, though I agree with the majority. Reinhardt is viewed as one of the most liberal judges in the country and he seems an attractive foil for some of the conservative justices. Many have said that in the past these justices appeared to be gunning for the Ninth Circuit and particularly Reinhardt. Justices like Scalia are likely to favor cert in the case. However, it is to the advantage of the challengers to try their hand at the en banc first. There is always the danger that one of the four most reliable conservative justices might not want to take the risk of granting cert. As it stands, this is precedent controlling only in the Ninth Circuit.

The matter could not be more central to a nation built on both the rule of law and pluralistic values. If discriminatory views are enough to satisfy the rational basis test, a host of insular minorities would face majoritarian harassment and abuse. Quoting an earlier Supreme Court ruling in Moreno, the court ruled that “[j]ust as a ‘desire to harm . . . cannot While race and religion trigger strict scrutiny, sexual preference is not treated as a suspect classification for the purposes of the constitute a legitimate governmental interest,’ . . . neither can a more basic disapproval of a class of people.”

Here is the opinion: Prop 8 ruling

Source: LA Times

 The bible of psychiatric/psychological diagnosis is the “Diagnostic and Statistical Manual of Mental Disorders (DSM)” published by the American Psychiatric Association. What it does is provide a standardization of diagnostic criteria, which allows Mental Health professionals to communicate with one another in a clearly defined set of common understandings.

 “It is used in the United States of America and in varying degrees around the world, by clinicians, researchers, psychiatric drug regulation agencies, health insurance companies, pharmaceutical companies, and policy makers. The DSM is a legitimating document and provides legal, medical, and ethical justification for physicians to diagnose and treat, judges to incarcerate and excuse, insurance companies to pay.” http://en.wikipedia.org/wiki/Diagnostic_and_Statistical_Manual_of_Mental_Disorders

First published in 1952 the DSM has undergone five revisions since then. The latest revision will be the DSM V, scheduled for a May 2013 publication. The last major revision in 1994 was called naturally the DSM IV. There are many problems with the DSM.  Since this Manual is so important to the treatment for those suffering and recompense for those who profit from psychiatric/psychological needs, this is an issue that needs greater public awareness. I think is most pertinent to look at the underlying issues entailed in the DSM’s new iteration and how it affects us, or those we know. To do so, however, we must look at the problems with the DSM, from a psychological, systemic and economic perspective.

The first critical issue is that no health insurance company, Medicare and/or Medicaid will pay for psychological and/or psychiatric treatment and medication, without a professionally certified diagnostician categorizing the patient with a valid DSM diagnostic code. Thus the DSM’s definitions have critical importance to practitioners, provider agencies, drug companies and health insurance providers. I retired from the Mental Health profession seven years ago and other things have held my interest. However, l I caught a NY Times article, posted at the MSNBC website last week and it brought to mind issues that had bothered me during my career, specifically with the DSM.

The NY Times article titled: “Grief Could Join List of Disorders” was by Benedict Carey. Its title refers to an ongoing controversy about adding grief (in the case of the death of a loved one for instance) as a category of Depressive Disorder. The word has gotten around the psychological community about this change and the result has been a back and forth of angry claims by professionals on both sides of the issue. http://www.nytimes.com/2012/01/25/health/depressions-criteria-may-be-changed-to-include-grieving.html

On one hand:

“In a bitter skirmish over the definition of depression, a new report contends that a proposed change to the diagnosis would characterize grieving as a disorder and greatly increase the number of people treated for it. The new report, by psychiatric researchers from Columbia and New York Universities, argues that the current definition of depression — which excludes bereavement, the usual grieving after the loss of a loved one — is far more accurate. If the “bereavement exclusion” is eliminated, they say, “there is the potential for considerable false-positive diagnosis and unnecessary treatment of grief-stricken persons.” Drugs for depression can have side effects, including low sex drive and sleeping problems.”

That represents the side of this issue that believes the definitions of clinical depression should remain the same and feels adding grief to it will have far more negative than positive effects. There is the other side of course which thus far seems to be prevailing and:

“… experts who support the new definition say sometimes grieving people need help. “Depression can and does occur in the wake of bereavement, it can be severe and debilitating, and calling it by any other name is doing a disservice to people who may require more careful attention,” said Dr. Sidney Zisook, a psychiatrist at the University of California, San Diego.”

With a little research into Dr. Zisook I found this piece of information in a Psychiatrist.com article called “Bupropion Sustained Release for Bereavement: Results of an Open Trial” by Dr. Zisook:

“Financial disclosure: Dr. Zisook is a consultant for Glaxo Wellcome, SmithKline Beecham Pharmaceuticals, Pfizer Inc, and Novartis Pharmaceuticals Corporation; has received grant/research support from Bristol-Myers Squibb Company; has received honoraria from Wyeth-Ayerst Laboratories, Eli Lilly and Company, and Forest Pharmaceuticals, Inc.; and is on the speakers bureau for Glaxo Wellcome and SmithKline Beecham Pharmaceuticals.”           http://www.psychiatrist.com/abstracts/200104/040101.htm

With my own full disclosure let me state that I know nothing of Dr. Zisook’s work other then what I am quoting above. He may well be a wonderful clinician admired by all and other than these quotes; I have no knowledge of his behavior. However, when I see any researcher, whose research is sponsored by drug companies and is on their speaker’s bureau, I must admit that my suspicions are aroused. The final six years of my career were spent creating and running programs for people with severe mental disorders, who were co-diagnosed as drug addicts. I saw the unnecessary use of psychiatric drugs as much as I saw their benefits. Too often the drugs were palliatives that avoided treatment and hamstrung the patients with noxious side effects from ever changing experimental cocktails. I have also seen wondrous breakthroughs in patients via use of medication, but not enough to convince me that they were completely the salvation of my profession.

To put it bluntly, I am appalled at the attempt to turn grief into a psychiatric disorder, even as I am aware from my own personal experience how devastating grief can be. In my own life I was engaged in a prolonged grieving for my parents, who died when I was on the cusp of manhood. To me, to be human is to have to come to terms with grief in one’s life. We are mortal beings. Illness, disease, violence and accidents strike us all with many dying far before their time. Our organisms have evolved internal mechanisms to deal with grief, simply because it is unavoidable. Turning a normal human experience into a Mental Disorder seems to me to be the work of people who have seen much, but yet understood little. It also can be the development of a new cohort of consumers of psychiatric pharmacology, a profit center if you will. Is it cynical of me to wonder if the estimable Dr. Zisook is perhaps unconsciously motivated by his own self-interest? I don’t doubt that he sincerely believes in the medications he peddles, but I wonder if that belief is unconsciously informed by the need to remain in the good graces of his benefactors. The NY Times article shows that I am not a lone voice howling to the wind, but actually a latecomer to this debate, a minor player only by dint of this blog:

“Many doctors and therapists approve of efforts to eliminate vague, catch-all diagnostic labels like “eating disorder-not otherwise specified” and “pervasive development disorder-not otherwise specified,” which is related to autism. But a swarm of critics, including two psychiatrists who oversaw revisions of earlier editions, has descended on many other proposals.

“What I worry about most is that the revisions will medicalize normality and that millions of people will get psychiatric labels unnecessarily,” said Dr. Allen Frances, who was chairman of the task force that revised the last edition.

Dr. Frances, now an emeritus professor at Duke University, has been criticizing the current process relentlessly in blog posts and e-mails. Dr. Robert L. Spitzer, who oversaw revision of the third manual in 1980, has also voiced concerns, as have the American Counseling Association, the British Psychological Society and a division of the American Psychological Association. Some of the concerns have to do with important technical matters, like the statistical reliability of diagnostic questionnaires. Others are focused on proposed changes to the most familiar diagnoses.”

There are those who will say, at times with merit, that pharmaceutical companies act only to provide substantive relief to humans in distress. This is no doubt true in some instances, but then there are drugs like Paxil (Paroxetine) which has been found to increase suicidal tendencies in teens, addiction in the form of dangerous withdrawal symptoms and other problems. Yet at the time I retired it was widely used by my patients, via Psychiatrist’s prescription and I knew of a few instances of very negative consequences. This Wikipedia article may give you a fair idea as to why this widely prescribed medication is highly controversial. http://en.wikipedia.org/wiki/Paroxetine  Paxil, nevertheless is a highly profitable drug and so its producers are quite hesitant to shut down the “cash cow” even if the results are dubious. It must be understood of course that Paxil cannot be prescribed without a DSM diagnosis code and so its producers have a financial interest in this esteemed manual.

“Paroxetine [Paxil] is used to treat major depression, obsessive-compulsive disorder, panic disorder, social anxiety, Posttraumatic stress disorder and generalized anxiety disorder^[1] in adult outpatients. Marketing of the drug began in 1992 by the pharmaceutical company SmithKline Beecham, now GlaxoSmithKline.”

Please note above that Dr. Zisook is a consultant for the Drug Companies that introduced Paxil. Also note that it is no longer used for teens and younger children due to the increased effect it has on suicidal ideation. However, if this new revision of the DSM is issued, with the inclusion of grief folded into depression, perhaps the teen market will be replaced by another market. Also note about Paxil”

“In the United States, the Food and Drug Administration requires this drug to carry a black box warning, its “most serious type of warning in prescription drug labeling,”^[28] due to increased risk of suicidal ideation and behavior.”

Now just supposing we have someone grieving for a loved one, finding it hard to cope. The person goes to a Psychotherapist seeking relief from this burden. In order for the Psychotherapist to get paid they need a DSM Diagnostic Code for the patient and with the revised DSM V the psychologist categorizes this person as being in a depressed state. Most Psychotherapists today have a Psychiatrist they work with. The depressed patient is sent to the Psychiatrist for an evaluation  and in order to get paid the Psychiatrist will generally use the diagosis already agreed upon. Seeing the patient in distress and that distress is defined as Depression, the Psychiatrist prescribes Paxil. This patient just happens to be, and there is no way to wean this out, one of those people in which Paxil produces suicidal ideation and in a disastrous confluence the patient kills themself. Since the Jonathan Turley Blog is primarily a legal blog you can follow this link for information about Paxil side effects lawsuits, which seem to have had some litigation success and perhaps ponder the Tort liability issues entailed. http://www.paxillawsuitsinfo.com/paxil-lawsuit-information-and-overview.php

My experience in Mental Health though, has made me rather cynical about the accuracy of many mental health diagnoses. Certain diagnoses, depending on the era, become popular among Mental Health professionals and thus they are given to a higher number of patients. Put another way, many mental health professionals project onto their patient’s symptoms, disorders that are au currant. Many of the diagnostic fads are pushed by Mental Health professionals who have staked a claim on a particular diagnosis. Perhaps they have written a book, or a paper, showing their success with a particular treatment regimen. In many cases their treatments and studies have been underwritten by Drug Companies.  I believe that the pressure that Corporations face to ever increase profits, lest their share price goes down, produces a response to push more and more drugs onto people by finding new problems to treat and/or expanding the amount of patients who have a diagnosis treatable with the drugs they produce. This is true of the huge industry that is Mental Health and the monetary stakes are such that in this case “better living through chemistry” doesn’t apply to plastics.

My experiences with the various iterations of DSM’s are that they are not precise diagnostic tools, but only work as a kind of descriptive shorthand between MH professionals. A common thought among those trained to use these manuals is that when you first start to read them, you will think you have every psychiatric condition in the book. This is based firmly in truth. These are imprecise definitions, agreed upon through a quasi-political process, often not grounded in persuasive data, which are influenced by economic and political considerations. Again from the NY Times article:

“Under the current criteria, a depression diagnosis requires that a person have five of nine symptoms — which include sleeping problems, a feeling of worthlessness and a loss of concentration — for two weeks or more. The criteria make an explicit exception for normal grieving, which can look like depression. “

When I talk of imprecise definitions think about the ones iterated in the quote above, which are three of the five needed for a diagnosis of Depression. Having been there, I know that the loss of loved ones would cause someone at least two weeks of sleeping problems, one might well feel worthless because they couldn’t save their loved one and certainly their concentration would be shaky. My training as a Psychotherapist and per the DSM, taught me the period of recovery from grief should normally take about six months in an average human. A normal person never ceases to feel the pain of their loss, but usually after six months they have come to terms with the fact that their loved one will never return, which will nevertheless pain them for the rest of their lives. Redefine grief and then send those with a loss to a Psychiatrist after two weeks and I’m positive that medications will be prescribed in nine out of ten times. To me this redefinition is reeking of increased profits for the Drug Companies and also an increased patient load for the Mental Health Community, increasing their profits as well.

To my mind and in my personal experience, almost every human feeling grief would have at least five of the nine symptoms. The question is does grief need to be treated by a Mental Health professional, or is it a part of life that we all must face? I believe most of us have, or can develop the capabilities within to cope with our loss and move on in our lives. I understand that for some it might be unbearable to the extent that help is needed and I believe when that occurs they should get that help. I contend, however, that by incorporating grief into the diagnostic structure of depression, many people would be pushed into treatment and medication for a problem they can deal with via support of loved ones and their own internal strengths. It is perhaps my cynical nature that thinks the impetus behind this redefinition of grief, is patients and profits. This seems logically true because if you look again at the nine diagnostic criteria for Major Depression, any clinician if necessary, can now use current diagnostic code for Major Depressive Disorder to insure their payment and any medication’s drug coverage. If this is the case, why change it?

The Mental Health System in our country and indeed the world is truly much less scientific than laymen believe. There is excellent knowledge that has already been developed in the study of the human mind and its processes, but like other fields of endeavor our knowledge is incomplete and flawed by the self interest of some in the field. In the area of the human condition we call grief; I can guarantee that every human being will be touched by the chill of its emptiness. As mortal beings this horrible feeling is inescapable and yet for most of us we learn to go on and perhaps grow in some way from the experience. To my mind a battle is being fought over grief, out of sight of the public, to take an intrinsic aspect of the human condition and find a way to profit from it. So what else is new?

Submitted by: Mike Spindell, guest blogger

Judge Waddoups wrote:

“The entirety of actions by the Utah County prosecutors tend to show either an ill-conceived public-relations campaign to showboat their own authority and/or harass the Browns and the polygamist community at large, or to assure the public that they intended to carry out their public obligations and prosecute violations of the law. Without any evidence to the contrary, the court assumes that these are consummate professionals making announcements of criminal investigations to apprise the public that they are doing their duty and seeking to enforce the law.”

The court did grant dismissal of the state governor and attorney general as parties because the Utah County Attorney Jeffrey Buhman is the relevant government official for the purposes of the challenge. We sued all three officials, but the dismissal of the two other parties will not affect the arguments in the case.

Since I am lead counsel in the case, I must remain somewhat circumspect in what I can say publicly. I have informed the Brown family of the decision. They are both deeply thankful to the Court and appreciative of the opportunity to present their case against this statute. The state has long insisted that this law is constitutional and that it may criminalize consensual private conduct between adults. It will now have the opportunity to make that case to the Court. We remain confident that this law cannot withstand constitutional scrutiny and we are eager to reach merits in the case.

I also want to recognize and thank our esteemed local counsel (and my former student) in this case, Adam Alba.

Here is the decision: Memorandum & Order-Sister Wives

Here is the complaint filed in the case: Brown Complaint

Submitted by Gene Howington, Guest Blogger

The 5th Amendment of the U.S. Constitution reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The language is clear.  There is no reasonable alternative construction or deconstruction of the language that renders any permutation of the right against self-incrimination to yield a contrary result.  You don’t have to offer testimony against yourself in a criminal proceeding in any court of law.  Ever. In what seems an ever increasing and endless assault on the civil rights of American citizens, even this right spelled out in plain language is under attack. This time the alleged assailant is U.S. District Court Judge Robert Blackburn, a George W. Bush appointee.  Judge Blackburn has ordered a criminal defendant to produce a unencrypted version of an encrypted hard drive.  While several lower courts have addressed this issue, the Supreme Court has yet to weigh in on it.  That may change.

But is the 5th Amendment really under attack here?  The 5th Amendment applies to testimony.  The issue at hand here is production of evidence. Different standards and protections can apply to compelling the production of evidence. The case in front of Judge Blackburn is U.S. v. Fricosu.

Last week, Judge Blackburn ordered Ramona Fricosu of Peyton, Colorado, to decrypt the hard drive of a Toshiba laptop computer no later than February 21. The failure to follow this order has consequences including contempt of court. Contempt of court is an inherent power of the court although most jurisdictions have a statutory grant and definition of the power. In a criminal proceeding in Federal Court, contempt is covered by Rule 42 of the Federal Rules of Civil Procedure.

Contempt is a separate and distinct charge from the case at bar even though it can stem from events directly related to the case at bar.  Contempt charges may result from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor behaviour, or publication of material deemed likely to jeopardize a fair trial. A judge has wide latitude to impose sanctions such as a fine or jail for someone found guilty of contempt of court, however, key to the whole concept of contempt of court is that the judicial order must be lawful. In this case, the lawfulness of the order to decrypt the hard drive must be considered in light of the defendants 5th Amendment right against self-incrimination.  The laptop was seized by warrant during the investigation against Fricosu that led to the case at bar where she is charged with bank fraud, wire fraud, and money laundering as part of an alleged scheme to use falsified court documents to illegally gain title to homes near Colorado Springs.

In 2009 a factually similar case, In re Boucher, resulted in an order for the defendant to decrypt his hard drive. However, despite being similar, there were key differences in the Boucher case.  Sebastien Boucher was crossing over from Canada into Vermont.  His laptop was powered up allowing for inspection by ICE agents. While conducting the search, the agents found child pornography.  They subsequently seized the laptop and arrested Boucher, but the laptop was powered down upon seizure.  The hard disk was encrypted with PGP Disk encryption similar to  Symantec’s PGP Desktop used on Fricosu’s computer.  When the defendant argued that decrypting the hard drive violated his 5th Amendment right, the magistrate judge initially sided with Boucher, but upon appeal, a judge for the U.S. District Court for the District of Vermont reversed the decision.  In essence, the ruling of the District Court found the passphrase in Boucher to be analogous to a key to a lock box and the discovery of the evidence within a “foregone conclusion”.  But is an encrypted drive the same thing as a lock box?

If the government has substantive knowledge of the content and location of documents, there is precedent to allow compelling the production of such evidence, such as forcing the production of a key to a lock box the government knows contains said evidence.  If the existence and location of information are known to the government and the witness “adds little or nothing to the sum total of the Government’s information by conceding that [s]he in fact has the [information],” those matters are treated as a “foregone conclusion.” Fisher v. United States, 425 U.S. 391, 411 (1976). Similarly there is precedent for allowing the compelling the production of evidence such as finger prints, blood samples or voice recordings.  Courts considering the issue of passphrases and their production such as  United States v. Rogozin and United States v. Kirschner have previously held that the 5th Amendment applies to encryption passphrases.  Notably, Kirschner shares similar facts with Boucher. The defendant in Kirschner was charged with receiving child pornography, but unlike the Boucher case, authorities had no direct knowledge that the encrypted computer in question in that case was where the child pornography was stored.  Lower courts have held that the protection of the 5th extends to the contents of a defendant’s mind.  The key to these distinctions rests upon testimonial versus non-testimonial acts; testimony versus the production of physical evidence with known probative value.

In the Fricosu case, the initial warrant and seizure complied with the 4th Amendment requirements and was lawful.  Assistant U.S. Attorney Patricia Davies has argued that there is no 5th Amendment issue in compelling production of an unencrypted version of the hard drive because she isn’t seeking the passphrase proper but rather an “unlocked version” of the data seized legally pursuant to the warrant previously issued and executed.  In what appears to be a semantic argument, Davies has argues that since what she requested was production of an unencrypted version of the hard drive and not the disclosure of the passphrase proper that Friscosu is not being compelled to testify against herself.  The analogy to a lock box fails at this point for a couple of reasons.

First, the prosecution has no idea what is on the drive as it was powered down when seizure by warrant was made, merely a suspicion.  Substantive knowledge of the existence, location and probative value of the evidence sought is critical to the analysis of the existing jurisprudence. Since there is no direct knowledge by the prosecution of the actual contents of the encrypted drive, what they are likely to find there is not a “foregone conclusion”.  The prosecution claims that a recorded jailhouse conversation is the basis of their suspicion but that is not the same as having direct evidence of the drive’s contents.  Second, a passphrase is not like a key in that it lacks physicality; it is held only in Friscosu’s mind.  Either disclosing it or using it directly seemingly requires a testimonial action of the defendant’s mind.  Third, evidence is by its nature evidentiary or not in the state in which it is found.  Documents in a lock box are what they are as far as evidence goes or they are not. Fourth, control of the evidence prior to seizure is an issue in this case. Compelling her to decrypt the drive is compelling her to admit that she had control over the computer and would be self-incriminating concerning any evidence recovered from it. Fricosu’s husband is also charged in the mortgage fraud scheme.  The computer may or may not have been under her control.  It was taken from her residence which she shared with her co-defendant husband. This also brings up another issue: Fricosu may not be able to produce an unencrypted version of the hard drive because of impossibility. She may not know the passphrase.

In finding for the prosecution in granting the order, Judge Blackburn relied heavily upon Boucher despite the factual differences in the case.  Judge Blackburn points to Boucher without acknowledging the key factual differences in the cases.  On the case at bar, the prosecution has no direct substantive idea of the encrypted drives content compared to Boucher where the prosecution knew the contents of the drive because LEO’s had previously seen it. That did not stop him from issuing the order based on the prosecution’s contention that “[p]ublic interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

If upheld, this could have broad implications not just for criminal prosecutions, but for the business world as well.  As Joshua Engel, vice president and general counsel at consulting firm The Lycurgus Group, said, “There’s a tremendous impact on the corporate world as we move toward cloud computing, and the reason is because documents stored in the cloud are often encrypted (or should be), and stored in the cloud because you want people to collaborate; by acknowledging they have the key, that person is admitting they have worked on the file or have access to it. As such, if the document has bad things in it, you are aware simply by virtue through the encryption.”  A finding for Fricosu would strongly enhance your rights to privacy in addition to defining where the line is drawn regarding encryption technology and your 5th Amendment rights.  A finding against Fricosu would give law enforcement a powerful tool in finding useful evidence via search warrants.

Is that discovery tool worth sacrificing your right against self-incrimination or your right to privacy?

Is self-incrimination different if you decrypt the files yourself or are forced to give your password to others?

Is a situation factually different enough to merit circumventing the 5th Amendment if the government has a substantive idea what the drive contains? Or is a situation factually different enough to merit triggering the 5th Amendment if the government does not have a substantive idea what the drive contains?

Is this an attack on the 5th Amendment?

Is this an attack on the privacy rights found under the due process clause of the 14th Amendment?

What do you think?

Source(s):  C|Net News, Wired, Law.com, Criminal Case No. 10-cr-00509-REB-02: U.S. v. Fricosu; ORDER GRANTING APPLICATION UNDER THE ALL WRITS ACT REQUIRING DEFENDANT FRICOSU TO ASSIST IN THE EXECUTION OF PREVIOUSLY ISSUED SEARCH WARRANTS (.pdf), Criminal Case No. 10-cr-00509-REB-02: U.S. v. Fricosu; APPLICATION UNDER THE ALL WRITS ACT REQUIRING DEFENDANT FRICOSU TO ASSIST IN THE EXECUTION OF PREVIOUSLY ISSUED SEARCH WARRANTS (.pdf),  Criminal Case No. 10-cr-00509-REB-02: U.S. v. Fricosu; BRIEF OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION IN SUPPORT OF DEFENDANT FRICOSU’S OPPOSITION TO GOVERNMENT’S APPLICATION UNDER THE ALL WRITS ACT REQUIRING DEFENDANT TO ASSIST IN THE EXECUTION OF PREVIOUSLY ISSUED SEARCH WARRANTS (.pdf)

~Submitted by Gene Howington, Guest Blogger

Respectfully submitted by Lawrence Rafferty (rafflaw)–Guest Blogger

Here in Illinois it is currently illegal for citizens to audio tape record public officials while they are doing their public duty, even in public.  “Illinois’ eavesdropping ban was extended in 1994 to include open and obvious audio recording, even if it takes place on a public street where no expectation of privacy exists and in a volume audible to the “unassisted human ear.” ‘  Chicago Tribune   When I first heard of this law, I was at first shocked and then my shock turned to anger.  The police can make recordings of citizens out in public while they are in the midst of a traffic stop or even when one is exercising their First Amendment rights on the streets of Chicago.  But, private citizens are not allowed to record those same police officers when they abuse the public or take liberties with constitutional guarantees.

The good news is that the ACLU here in Illinois is fighting this theft of our civil rights and the case is currently pending in the 7th Circuit.  ” The American Civil Liberties Union of Illinois today asked a federal appellate court to block future prosecutions of the ACLU and its staff members for recording police officers performing their public duties in a public space as a violation of the First Amendment. The oral argument on Tuesday morning is the latest action in an ACLU lawsuit filed in federal court in August of 2010. The ACLU of Illinois is defending its program monitoring police conduct and practices on the streets of Chicago.”  ACLU

Why is the ACLU making a Federal case out of a street artist’s arrest?  The easy answer is that if no one is allowed to audio record police officers on the street, how will the citizens of Illinois and the other states who have similar laws, be able to monitor the actions of over zealous police officers who go beyond the law?  The ACLU routinely monitors demonstrations to make sure that the police are not abusing the protestors and violating their constitutional rights.  This legislation would prevent the ACLU and citizens from being able to prove that the police are breaking the law. It is not surprising that the police union supports this restrictive law that protects police criminality.  “Officials with the Fraternal Order of Police in Chicago have said the union supports the law because it prevents people from making baseless accusations against officers by recording them and then releasing snippets that don’t reveal the full context of the incident.”  Tribune

Let me see if I understand the argument put forward by the Fraternal Order of Police (FOP).  If citizens are allowed to record what police officers are saying then the citizens will be able to take conversations out of context and put the officers in a bad light.  Interesting claim, but if the police are already recording us on their video cameras in the squad cars and with the many street cameras set up all around the City of Chicago, how are citizens going to be able to get away with the actions claimed by the FOP?  The answer is that they won’t.  The ban on recordings prevents the truth being told on how officers are treating citizens on the streets.

The good news is that the ACLU suit is backed by many media organizations and there is even a new law working its way through the State House in Springfield that would allow citizens to audio record police officers on any street in Illinois.  House Bill 3944   This battle is not just a concern for those of us who live in Illinois.  If you are a citizen of Maryland or Massachusetts, you are also laboring under similar laws that prevent you from making audio recordings of police officers in the line of duty.  Some may think that the ACLU is making something out of nothing.  If you agree with that line of thinking, at which point do you say that the police and the State have too much control over our right to monitor police activities in public? Should we just sit back and allow the police to be able to say and do anything to us in the streets?  Even if that action or those words prevent us from exercising our First Amendment rights?

What if a Federal agent was disrupting a legal demonstration and was recording what the demonstrators were saying and doing?  Shouldn’t the demonstrators have the right to record just how the government is infringing on their rights?  My Mom also used to tell me what is good for the goose is good for the gander.   Maybe the State of Illinois and the City of Chicago should also be required to follow that logic.  What is your take on this subject?  Should the State have a right to stop citizens from monitoring State actions?

ACLU vs. Alvarez Complaint

Additional ACLU vs. Alvarez court filings

That was the description of four East Haven, Connecticut, police officers who were arrested after a federal grand jury returned an indictment containing charges of conspiring to violate, and violating, the civil rights of members of the East Haven community. All four have pleaded not guilty in Federal District Court and three have been released on bail, ranging from $100,000 to $300,000; the fourth is awaiting completion of his paperwork.

The indictment alleges unreasonable searches and seizures, the use of unreasonable force, false and misleading police reports, and harassment and intimidation of victims, witnesses, and outside investigators. All four are facing potential jail sentences of 10 years or longer if convicted.

The four officers were protected by a higher-up in the East Haven Police Department referred to, in the indictment, as co-conspirator-1. The name of co-conspirator-1 is known to the grand jury, and if any of the four officers decides to make a deal, another indictment may be forthcoming.

The long list of abuses of power were often directed at Latino drivers and businesses, and the victims reported the abuse to Father James Manship of the St. Rose of Lima Church in Fair Haven. Manship started his own investigation and, in 2009, got himself arrested while video recording two of the officers. In the police report, one of the officers wrote that he saw an “unknown shiny silver object” that Manship had “cupped” in his hands. However, in the video below, the officer clearly refers to the “shiny object” as a camera.

The arrest of Manship prompted the investigation by the Civil Rights Division of the Department of Justice.

This case demonstrates the importance of not outlawing the recording of police officers in public performing their duties. The courage of Manship should be an inspiration to all of us to not back down when confronted by bullies.

H/T: Radley Balko, New Haven Independent, DoJ, New York Times, WTNH.

Seventh Circuit Judge Richard Posner is one of America’s most lauded judges and legal thinkers. An economics degree from Yale, president of the Harvard Law Review, and clerk to Justice William Brennan, Posner has the brains and the pedigree to move American jurisprudence. And move it he has. A conservative in reaction to his experience on the Supreme Court he’s drawn the ire of this blog for insensitvity to Constitutional rights of citizens. In addition, he’s one of the main proponents of the “law and economics” movement which advocates the analysis of law using economic principles. As you guessed, he’s no enemy of big corporations and business in general. 

You’d think a practitioner of the “dismal science” would be pretty dry in his legal opinions. Not so. Judge Posner has drawn fire for his use of web-snatched images amid the text of his legal analysis. In one instance depicted above, he used an image of an ostrich doing what ostriches are famous for to chastise a plaintiff’s lawyer who ignored a precedential case in his brief. In another, he incorporated an image of dreadlocked reggae singer, Bob Marley, to graphically illustrate his opinion in a dispute involving religious expression by means of hair style for a federal prisoner.

The practice has drawn judicial complaints from the plaintiff’s lawyer chastised as an ostrich and charges of copyright violation, all to no avail. Posner remains nonplussed as a dedicated “cut and paster.” Posner said it was the first negative feedback he’d received for an image. “I’m sorry he [the plaintiff's lawyer] was upset by it,” he said. Posner also defended his use of artistic license, saying photos embedded in his opinions “couldn’t conceivably be hurting the copyright holder.”

Proof, I suppose, that the digital age is coming even to the tradition-laden chambers of appellate judges.

Source: Reuters

~Mark Esposito, Guest Blogger

The bill states that “[t]he governing body of a school corporation may require the teaching of various theories concerning the origin of life, including creation science, within the school corporation.” The language appears to be an effort to circumvent the holding in Edwards v. Aguillard, 482 U.S. 578 (1987), where the Supreme Court struck down a law requiring the teaching of creationism in Louisiana schools in 1987. The Court stressed that “[w]e do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.” The Court added that “teaching a variety of scientific theories about the origins of humankind to school children might be validly done with the clear secular intent of enhancing the effectiveness of science instruction.” (emphasis added)

This law could force a reexamination of that caveat and the overwhelming view of scientists that creationism is a religious not a scientific theory. Notably one of the two dissenting justices was Associate Justice Antonin Scalia. Other states like Tennessee have moved to re-introduce creationism in schools as a “controversy” in science. Louisiana itself has used this approach to circumvent the precedent that it created in Edwards.

This legislation could lead to another major decision if it were to get to the Court, though Scalia would find new allies in jurists like Clarence Thomas. The Court held that it was unconstitutional when “pre-eminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind.” On his official legislative site, Kruse has highlighted his work with such groups as “Child Evangelism Fellowship of Northeastern Indiana,” “The Gideons International,” “Northeast Indiana Youth for Christ Board, Chairman,” “County Line Church of God,” and other such groups.

Another supporter, Sen. Scott Schneider, R-Indianapolis, said that “many” scientists agree with creationism and asked “[w]hat are we afraid of? Allowing an option for students including creation science as opposed to limiting their exposure?”

Just to be clear, the fear is not that evolution could not hold its own as a scientific theory but that we are suggesting to students that creationism has a scientific basic. Beyond the “Creation Science boards, “many” scientists are not supportive of creationism and that suggestion by Schneider shows how “facts” are invented to suggest a scientific basis for creationism. According to a 1991 Gallup poll, only 5% of scientists identified themselves as creationists. However, even this small number was questioned since it included those with training outside biology.

Notably, these schools could take the lead from Governor Romney who has stated that evolution is a scientific theory while creationism is a philosophy. In Iowa, he explained:

“In my opinion, the science class is where to teach evolution, or if there are other scientific thoughts that need to be discussed,” he said. “If we’re going to talk about more philosophical matters, like why it was created, and was there an intelligent designer behind it, that’s for the religion class or philosophy class or social studies class.”

For academics in Indiana, this must be a particularly low moment. Indiana is a state with terrific institutions of higher learning. This bill looks like an appeal from The State of Tennessee v. John Thomas Scopes — 87 years too late.

Source: Courier Journal

We have all certainly heard of the important Freedom of Speech cases that the Roberts led Supreme Court has decided.  Citizens United is probably the most prominent one that comes to my mind.  Of course, the Citizens United case promoted the ability of corporate entities to enjoy full Free Speech rights. Other important Free Speech cases that were decided by the Roberts Court include the military funeral case of Snyder v. Phelps, et al,(131 S. Ct. 1207 (2011) ) and the Brown v. Entertainment Merchants case (131 S. Ct. 2729 (2011) ) in California which overturned a California law which required parental consent for minors to rent or buy violent video games.  Because of these decisions and others, some scholars and constitutional law experts make the claim that the Roberts Court is the most pro-free speech Supreme Court in history!

I think that the attempt by some to put the Roberts Court on a pedestal when it comes to free speech cases is a bit premature and possibly misleading.  As Dean Erwin Chemerinsky suggests, the Roberts court has been less than friendly to employees and students making free speech claims. “Based on these cases, it is tempting to generalize that the Roberts Court is strongly protective of speech. In fact, I recently heard Baylor University President Ken Starr proclaim that this is the most free speech Court in American history. As is often the case with generalizations from a small sample, this one is inaccurate and hides the reality: the Roberts Court frequently rules against free speech claims.Part I of this Lecture looks at the Roberts Court’s dismal record of protecting free speech in cases involving challenges to the institutional authority of the government when it is regulating the speech of its employees, its students, and its prisoners, and when it is claiming national security justifications.”  Arizona Law Review

Let’s take a closer look at just one of the areas where the Roberts Court has not been the bastion of Free Speech.  As Dean Chemerinsky suggests the Roberts Supreme Court seems to forget about whose speech it is protecting when it comes to what I consider some of the groups who need the protection the most.  One case that Dean Chemerinsky reviewed really jumped off the page when I read it.  The case in question was Garcetti v. Ceballos, (547 U.S. 410 (2006) ).

The Garcetti case involved a District Attorney who believed that one of his witnesses may have lied in court and he wrote a memo to the Defense attorneys under the belief that he had a Constitutional duty to inform them of these facts and concerns.  Needless to say, his employer, The County of Los Angeles was not happy that justice may have triumphed and denied him an expected promotion and transferred him to a less than desirable position.  The Roberts Court in a 5-4 decision decided that government employees have no freedom of speech rights when it comes to their duties on the job.

“The issue before the Court was whether Ceballos’s speech was protected  by the First Amendment.  Although the Court has long held that there is constitutional protection for the speech of government employees, it ruled against Ceballos. The Court drew a distinction between speech “as a citizen” and speech “as a public employee”; only the former is protected by the First Amendment.  Justice Kennedy stated: “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”  The Court expressed great concern about the disruptive effects of allowing employees to bring First Amendment claims based on their on-the-job speech.  Justice Kennedy wrote that allowing such claims “would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents.”  The Court observed that civil service protections provide safeguards for employees against retaliation for their speech.”  Chemerinsky

The Roberts Court in the Garcetti case severely limited speech by government employees even though by doing so it would be limiting speech which they have stated in the Citizens United case would do disservice to Free Speech rights. “The case’s premise that the First Amendment protects only speech “as citizens” has no foundation in other case law. For example, in Citizens United v. Federal Election Commission, the Court protected the speech of corporations even though they, of course, are not citizens.29 The explicit premise of Citizens United is that more speech is better whatever the source;30 the effect of Garcetti v. Ceballos is that there will be significantly less speech. Moreover, government employees do not lose their citizenship when they walk into the government office building.” Dean Chemerinsky

Due to space and time constraints, I cannot review all the cases that suggest that the Roberts Court was not a champion of Free Speech.  Dean Chemerinsky also discusses cases related to students and prisoners and how the Roberts Court has not championed Free Speech for those groups.  I highly recommend that you read the Arizona Law Review article that is linked here.  The author, Dean Erwin Chemerinsky argues that the opposite might be true.  He asserts that when government interests and corporate interests are involved, Free Speech by employees and citizens is not so well protected by Roberts and his associates on the Court.  If more speech is what the Court states is the goal of the Freedom of Speech, why should it matter who is doing the speaking?

If whistle blowers do the right thing and speak up and disclose an injustice being done by or allowed by the government or corporations, why should their Free Speech rights be left outside the building?  Doesn’t this type of decision actually defeat the real purpose of the Freedom of Speech as outlined by the Roberts Court in the Citizen United (130 S. Ct. 876 (2010)) case? How useful and effective can Freedom of Speech be if it is limited to cases that are obvious and preferred by the government and corporate interests?  Wouldn’t it be in society’s best interest that the truth is actually disclosed in a criminal case?  Let’s hear what you think?

LINKS:

Citizens United v. Federal Election Commission

Snyder v. Phelps, et al

Brown, Governor of California, et al, v. Entertainment Merchants Association, et al

Garcetti et al,  v.  Ceballos

Cheryl Jones was attending services at the Disciple Fellowship Christian Church of East St. Louis, Illinois, when a female parishioner received the Holy Spirit. When she fell, she knocked over others in a domino effect. Jones was knocked to the floor and several people fell on top of her. Jones alleges she suffered injuries to her head, neck, back, and buttocks.

Jones’ lawsuit notes a failure to ensure that ushers were standing by to catch any parishioners when the Holy Spirit enters and they lose consciousness. Jones is seeking at least $50,000 in damages.

Even with the absence of “catchers,” a jury may find it unforeseeable that Jones would be injured by the domino effect of falling parishioners.

These “swoon and fall” lawsuits are not uncommon. In a Michigan case, Judith Dadd received a combined judgement of $317,255.68 when she fell and struck her head on the floor. On appeal, only the $40,000 claim for negligence was affirmed.

In Beaverton, Oregon, a “catcher” was injured when a parishioner fell on Shin Lim Kim causing a lumbar spine compression fracture at L-2. Her lawsuit asserts that the church should have provided multiple “catchers” and mats to cover the floor. The suit also names the falling parishioner as a defendant for “failing to control her body” when she was “slain in the spirit.” Kim was seeking $125,000. However, an Oregon jury found the church was not liable for injuries to a “catcher.”

From a scientific point of view, and by that I mean a reality point of view, since nothing actually enters the parishioner’s body, this is entirely a self-inflicted injury. Whether or not this can be used as a viable legal defense, the defendant (church) is likely to perceive such a defense as self-defeating.

H/T: Legal Blog Watch, On Point News.

The Court supplied an account of the failure of Sullivan and Cromwell in the case:

In 2002, while Maples’ state postconviction petition was pending, Munanka and Ingen-Housz left Sullivan & Cromwell. Their new employment disabled them from representing Maples. They did not inform Maples of their departure and consequent inability to serve as his counsel. In disregard of Alabama law, neither sought the trial court’s leave to withdraw. No other Sullivan & Cromwell attorney entered an appearance, moved to substitute counsel, or otherwise notified the court of a change in Maples’ representation. Thus, Munanka, Ingen-Housz, and Butler remained Maples’ listed, and only, attorneys of record.

The trial court denied Maples’ petition in May 2003. Notices of the order were posted to Munanka and Ingen-Housz at Sullivan & Cromwell’s address. When those postings were returned, unopened, the trial court clerk attempted no further mailing. Butler also re- ceived a copy of the order, but did not act on it. With no attorney of record in fact acting on Maples’ behalf, the 42-day period Maples had to file a notice of appeal ran out.

About a month later, an Alabama Assistant Attorney General sent a letter directly to Maples. The letter informed Maples of the missed deadline and notified him that he had four weeks remaining to file a federal habeas petition. Maples immediately contacted his mother, who called Sullivan & Cromwell. Three Sullivan & Cromwell attor- neys, through Butler, moved the trial court to reissue its order, thereby restarting the 42-day appeal period. The court denied the motion. The Alabama Court of Criminal Appeals then denied a writ of mandamus that would have granted Maples leave to file an out-of- time appeal, and the State Supreme Court affirmed.

Both the federal court and Eleventh Circuit upheld the denial of relief.

Notably, the majority (in an opinion by Associate Justice Ginsburg) sets out with criticism of the Alabama system noting the state’s “low eligibility requirements for lawyers appointed to represent indigent capital defendants at trial” and that “[a]ppointed counsel in death penalty cases are also undercompensated.” The court then adds “[n]early alone among the States, Alabama does not guarantee representation to indigent capital defendants in postconviction proceedings.” Alabama should be ashamed of such an inimical position in our legal system.

Alabama succeeded in largely uniting a divided court by its draconian approach to criminal justice (Alito filed a concurrence). The court held:

“The cause and prejudice requirement,” we have said, “shows due regard for States’ finality and comity interests while ensuring that ‘fundamental fairness [remains] the central concern of the writ of habeas corpus.’” Dretke v. Haley, 541 U. S. 386, 393 (2004) (quoting Strickland v. Washington, 466 U. S. 668, 697 (1984)). In the unusual circumstances of this case, principles of agency law and fundamental fairness point to the same conclusion: There was indeed cause to excuse Maples’ procedural default. Through no fault of his own, Maples lacked the assistance of any authorized attorney during the 42 days Alabama allows for noticing an appeal from a trial court’s denial of postconviction relief. As just observed, he had no reason to suspect that, in reality, he had been reduced to pro se status. Maples was disarmed by extraordinary circumstances quite beyond his control. He has shown ample cause, we hold, to excuse the procedural default into which he was trapped when counsel of record abandoned him without a word of warning.

While Scalia expressly “agree[s] with the Court’s conclusion, ante, at 15, that Maples’ two out-of-state attorneys of record, Jaasi Munanka and Clara Ingen-Housz, had abandoned Maples,” he still would leave the death-row inmate without judicial relief because he believed the Maples was still technically represented in the case.

. . . if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney. That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation con- ducted by counsel.

Scalia dismisses the confusion and lack of involvement of the attorneys who tried to retrieve Maples’ procedural rights. However, once again, procedural requirements must be tempered by some notion of basic justice and fairness. The jurisprudence of these justices appear to be impenetrable by such values. It is the triumph of procedure over justice. The record demonstrates that a gap occurred in representation and that he had been denied effective counsel for all practical purposes –or, as the majority found, “he had been reduced to pro se status.” Note: none of this means Maples will wi — only that he will be able to present his appeal to a higher court.

The question is whether the Alabama bar will use this stinging indictment of their legal system to advocate for reforms to bring the state on par with other states in the Union.

Here is the opinion: MAPLES v. THOMAS

The radio and movie industry has shown zero concern over free speech and other rights in seeking to protect profits. The bill has sweeping implications in the loss of safe harbor provisions and the right to bar Internet sites under vague provisions. Wikipedia, which has taking a lead in fighting this bill, has a good discussion of these dangers. Not only must this bill be defeated, but advocates should force a review of the current draconian and often abused copyright and trademark laws.

The standard approach of lobbyists when faced with public opposition is to pull back while working privately with the White House and Congress to achieve the same results once the fervor has died down. In the meantime, most of the Hollywood stars and recording artists who claim to support the arts and free speech are conspicuously silent as their lobbyists seek strip the Internet of protections. Just as we saw with the pharmaceutical industry, the entertainment industry has given jobs to congressional staffers who have worked for its interests in Congress. Various sites have documented the millions given to Congress by the industry to pass this law.

Sites like Rawstory have links to contact your representatives. I encourage everyone to join this worthy effort. The Internet is the single most important advance in free speech in a century, if not in the history of humanity. While this industry cannot see beyond its profits, the public needs to protect this resource for creative and political expression.

Yesterday, my column “10 Reasons The United States Is No Longer The Land Of The Free” ran in the Sunday Washington Post. I have been heartened by response to the column. However, a few commenters continue to suggest that the National Defense Authorization Act (NDAA) does not allow for the indefinite detention of citizens. This claim is being advanced by Senator Carl Levin (D., Mich.) in emails and fax messages to voters. I wanted to respond to Senator Levin’s points which are detached from language of the law and the clear intent of the majority of Senators. I would also like to address those who have stated that our liberties are not at risk when such powers will not affect most Americans.

I have previously explained why the claim by Sen. Levin is unfounded, as have others like the ACLU and commentators like Glenn Greenwald. The White House itself offered the spin to supporters in Congress, explaining why the President reneged on his pledge to veto the law. The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is facially ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the real section, 1031, which offers no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial. Section 1031 only contains a meaningless provision stating “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

First, this provision was added after an amendment to exempt citizens was defeated by the Senate — legislative history that any court is likely to note in the interpretation of its meaning.

Second, the fact that the Senate put a clear exemption in the mandatory detention provision for citizens but opted not to simply include the same provision in the discretionary detention provision reinforces this meaning.

Third, after the exemption for citizens was defeated overwhelmingly, the same Senators who voted to deny any exemption proceeded to vote for this language — clearly indicating that it did not offer such protection for citizens.

Fourth, Levin and others are seeking to deny the authority that the President just acknowledged in his signing statement. Obama stated “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” He does not deny that he has such authority . . . only that he does not intend to use it.

Fifth, Levin admitted on the floor that it was the White House that insisted on eliminating the exemption for citizens — affirming that without such an exemption, citizens would be subject to such detention. In an exchange with Senator Udall, Levin stated:

Is the Senator familiar with the fact that it was the administration which asked us to remove the very language which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois?

Sixth, many of the members at the time of passage voiced their understanding that the provision authorized the indefinite detention of citizens – including those who wanted such a power codified and those who opposed the power. For example, At least Senator Lindsey Graham was honest when he said on the Senate floor that “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”

Seventh, the language that was ultimately put into the bill was standard cover language for Senators who knew that they would be criticized for voting for the law. Indeed, when Levin referred to the language, he insisted that it would merely permit what is already permitted by law “whatever it may be.” Of course, the White House has claimed the right to kill citizens on the president’s sole authority. The indefinite detention of citizens would seem the lesser included in such a greater. Moreover, the Senators refused to change the existing law by putting in an exemption for citizens. It is also worth noting that the White House has successfully opposed the right of citizens to present national security powers to federal courts for independent review. What is the “law” is often only the assertion of power by the President – unchecked by judicial review.

Levin has been hammered by civil libertarians and liberals over his role in passing this harmful law. His official Senate site now features a statement at the top. One of his financial supporters (who told me that he had declared that he will not to support Levin in the future due to the bill) sent me the following email from Levin’s office:

“The provisions on detention of terror suspects in the bill got more attention than all these other important priorities. The criticism of these provisions has usually been wildly inaccurate; if the bill did what some of its critics claim, I would have led the opposition. . . . It does not prohibit civilian trials for terror suspects. It does not strip the FBI and other civilian law enforcement agencies of their authority. It does not allow the military to make arrests on U.S. soil. It does not enact new authority to hold U.S. citizens without trial or charge. It does not provide for indefinite detention of citizens without access to civilian courts.”

Note the use of new authority. This is authority that has been claimed as being part of the President’s inherent authority — just as he claims the right to kill citizens. However, this law codifies new detention powers and the Senate expressly chose not to exempt citizens — and the President himself acknowledged the ability to indefinitely detain citizens in his pledge not to use it. Moreover, it was the duty of Levin and others to fight the passage of this law in the absence of an exemption, including fighting to use every power available from a filibuster to demanding a president veto. Instead, they took the political convenient approach and sought to excuse their act of constitutional nonfeasance behind this meaningless language.

I am hardly shocked that senators are not answering the criticism over this provision by being open about their failure to protect citizens. However, I continue to be amazed by comments on the Washington Post and this blog from citizens that we are not really losing any rights because most citizens are unlikely to be subject to these powers. It is disgraceful argument that only “those” people will be denied rights so I must remain free. Of course, since these are secret powers, you are not likely to know if you have been subject to surveillance or some other measures. More importantly, something is not a right if it is discretionary with your government to allow or to take away. By the time you find yourself denied of the right, it is too late to do anything about it. It is the same amoral logic described by pastor Martin Niemöller:

First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for the Catholics,
and I didn’t speak out because I was Protestant.

Then they came for me
and there was no one left to speak out for me.

Thankfully are we not facing the type of horror faced by Niemöller, but the logic is the same: I do not need to object unless the government denies me a right.

The government always embraces abusive power by targeting the least popular among us. The test of patriotism is to fight for the values that define us. While people appear ready to protest over taxes against “big government,” some of the people often seem to remain silent in the face of the very abuses that the Framers sought to combat from indefinite detention to warrantless searches to assassination. The play on security as a rationale to limit freedom is nothing new. As Benjamin Franklin observed, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Jonathan Turley

The article below describes these proceedings before a sheikh who warns witnesses “You must speak the truth, sister. Because Allah is listening to your every word, you can lie to us but not to Him.”

There are an estimated 85 Sharia councils in Britain. What is fascinating is that the English Muslim lawyers are now actively seeking clients to represent in the burgeoning legal system.

While I support the right to these people in seeking justice from Sharia courts as a private matter, I will not hide my concern. It represents a further separation from society for Muslim families and a further compartmentation of parts of society into insular communities. Civil courts should represent part of our collective covenant to live in a unified legal system. Another concern is that it can reinforce those who oppose separation of church or mosque and state. With quasi-courts meting out faith-based justice, many are likely to seek other expression of religious doctrine in laws and policies.

These concerns should not trump the right of citizens to resolve their disputes in such private disputes. For that reason, there are times when Sharia law may become relevant to contractual and other disputes. Indeed, in New York there were dozens of Jewish courts used by immigrants in the nineteenth and twentieth centuries. Some such courts continue to operate in this country as do informal Sharia courts.

Source: BBC

Respectfully Submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

On Monday we celebrate the life of the Reverend Martin Luther King and honor him for his work with the Civil Rights movement.  One of his most famous speeches was the 1963 “I Have A Dream” speech that he gave in Washington, D.C. to a crowd of thousands.  In that speech he laid out his vision and hopes for the Civil Rights movement.  I would like to review some of his words and discuss if his dream came true for African-Americans and minorities throughout our country. “I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.” ‘ Huffington Post

Those words seem clear enough, but at the time Rev. King gave this speech, it had been 100 years since Lincoln’s Emancipation Proclamation and the African-American was not free and equal to the white man in this country.  Jim Crow laws throughout the South kept African-Americans isolated and humiliated.  Lynchings and beatings were still far too common.  So how has the South progressed since Dr. King expressed his dream?

It seems clear that life in the South has improved for African-Americans.  African-Americans have become professionals and teachers and even Mayors of cities and towns throughout the South.  Black Congressmen and women have been elected from the South and Jim Crow is but a remnant of the history books.  In the North, Blacks have also progressed in all walks of life.  One African-American of mixed heritage grew up to be elected to the Illinois State House and the United States Senate and made it all the way to the White House.  The ability of Barack Obama to become President was made possible by Dr. King and his comrades who brought the Civil Rights movement to all of our doorsteps.

Do these successes mean that Dr. King’s ‘Dream” did come true?  I submit that at least one aspect of his dream is partly unfulfilled.  While African-Americans have made significant progress, they still lag financially behind their white counterparts.  “The gap between Black and white household [accumulated] wealth quadrupled from 1984 to 2007, totally discrediting the conventional wisdom that the U.S. is slowly and fitfully moving towards racial equality, or some rough economic parity between the races. Like most American myths, it’s the direct opposite of the truth. When measured over decades, Blacks are being propelled economically downward relative to whites at quickening speed, according to a new study by Brandeis University.”  Alternet   Without equal opportunity in the financial arena, can it truly be said that Dr. King’s dream has come true?

“A huge wealth gap has opened up between black and white people in the US over the past quarter of a century – a difference sufficient to put two children through university – because of racial discrimination and economic policies that favour the affluent.  A typical white family is now five times richer than its African-American counterpart of the same class, according to a report released today by Brandeis University in Massachusetts.  White families typically have assets worth $100,000 (£69,000), up from $22,000 in the mid-1980s. African-American families’ assets stand at just $5,000, up from around $2,000. A quarter of black families have no assets at all. The study monitored more than 2,000 families since 1984.  “We walk that through essentially a generation and what we see is that the racial wealth gap has galloped, it’s escalated to $95,000,” said Tom Shapiro, one of the authors of the report by the university’s Institute on Assets and Social Policy.”  Guardian

While significant progress has been made in many areas, the African-American is still trailing far behind his white brothers and sisters financially.  If that huge disparity in income and assets can’t be shrunk, will the Black man ever be truly free?  Dr. King initiated a huge improvement in the freedom for many, but his work is not completely done.  When we celebrate the day set aside to honor his legacy, maybe we should think of ways that the financial gap between blacks and whites can be narrowed.  Without all people being equal in all areas, how can any of us really be free?  What ideas do you have?

Additional reference:  US Constitution.net

Almost four weeks ago I read an article in Huffington Post entitled: “Can Loving A Robot Lead to Divorce?” by Vicki Larson, a journalist. http://www.huffingtonpost.com/vicki-larson/robots_1_b_1150679.html  Ms. Larson introduces her piece by quoting the claims of a current manufacturer of anatomically correct “sex robots”, who presumably speak and move in sexual ways. I followed the article’s link to the website of the robots inventor, Douglas Hines, who enthusiastically discusses his creation and has a few videos (non-explicit) that demonstrate the robot’s “capabilities”. While the HuffPost article links the Company’s website, I’m not doing it here, since publicizing this device is not my aim. Should you want further information it is available at the articles link. The “sex robot” being produced now is but an update on inflatable sex toys, though with a “skeleton”, rudimentary movement and speech added. It therefore is only an opening reference to a real issue that will shortly become scientifically possible.

The next part of this short article is an overview with of the opinion of  Artificial Intelligence Expert David Levy http://www.scientificamerican.com/article.cfm?id=humans-marrying-robots  “It also may be the future of love and marriage, if you believe artificial intelligent (AI) expert David Levy, author of Love and Sex With Robots. According to Levy, human-robot sex, love and marriage is inevitable — perhaps as soon as 2025. He predicts that robots may not only be more lovable and faithful than many humans, but they may even be more emotionally available than the “typical American human male.” Not only will they make us become better, more creative lovers, but they also will offer those singles who feel a void in their emotional and sexual lives and married couples with differing sexual needs new, nonjudgmental ways to be happy and healthy. Although Levy believes that the “availability of regular sex with a robot will dramatically reduce the incidence of infidelity as we know it today,” he also acknowledges there may be some potential sticky points. “Some human spouses and lovers might consider robot sex to be just as unfaithful as sex with another person.”

Levy’s view naturally flows into the conclusion of the article which is an E Mail interview with Sonya Ziaja, a San Francisco Bay Area attorney who blogs at numerous law and policy media outlets as well as her own, Shark. Laser. Blawg.

“And what could be more fraught with legal dilemmas than a love triangle among a married couple and a sexbot? How that might impact a divorce? That’s what Ziaja explores in her paper, “Homewrecker 2.0: An Exploration of Liability for Heart Balm Torts Involving AI Humanoid Consorts,” which she presented at the 2011 International Conference on Social Robotics that took place in Amsterdam at the end of November.

“If the doll’s owner becomes enamored with the doll, and leaves his spouse, can the spouse sue as she or he would be able to if the interloper had been human? And who would be sued? The manufacturer? Inventor? The AI itself?” she questions. “So long as we’re intent on adding socially interactive AI into situations that would ordinarily be only human. … socially interactive robots need to be ‘safe to play with’ in a way that manufacturers of toaster ovens never had to imagine.”

Thus we are presented here with a legal quandary instigated by the advent of revolutionary technology affecting serious legal, moral and ethical issues. How should we view this inevitability and how shall we deal with it as a society?

The development of artificially intelligent robots has been a theme in speculative fiction dating back to the 1920 science fiction play R.U.R. http://en.wikipedia.org/wiki/R.U.R. The theme of that play was the development of Robots with artificial intelligence that eventually destroy humanity. Ninety-two years ago this piece of speculative fiction foresaw what is fast becoming possible today. Within the next two decades it is likely that artificially intelligent androids, with realistic sexual features, will be produced. They will be able to carry on conversations and yet if the laws don’t change they will essentially become chattel. The question then will be how this impacts on humanity in general and on U.S. Law in particular?

In one sense this development can be seen as a very positive one for those of us unable to find spouses and/or sexual partners. It may diminish rape, some might argue, but I think that a vain hope, since to me rape is more about power/sadism and less about sex, though sex provides a means to that end. Talking about relationships though, I can see “sex robots” having a profound effect on the sexual lives of many people. More and more today sex has become “commoditized” by Corporations seeking higher profits. It has become a “sales tool” and in the process sex has been sold to many as an aim in itself. In truth, it hasn’t been a hard sell because throughout human history many have seen sex as its’ own end. In the height of my testosterone fueled years, I never viewed sex strictly as an end, which was considered peculiar among my male friends, because for me it was always caught up in how much I was attracted to the personality of a female rather than just her personification as an opportunity for fun. In that sense I don’t think I am typical and so I think many males/females might find a responsive robot an easier companion than a real live human.

The coming of a sexually capable android with Artificial Intelligence (AI) is just years away. As alluded to above this will profoundly affect human society, I believe it will be seen as a danger by many and to others a liberation. If we think the law is severely taxed by complex issues now, wait until the day this evolution in technology becomes common reality. Perhaps initially there will be alienation of affection lawsuits; the assertion of new forms of marital desertion; issues of child custody; claims of sexual deviancy requiring control; and of course a threat to “normal” heterosexual marriage. That is the easy part. In truth, given the power of profit in human dealings all of those objections will be met and dealt with, in new permutations of law that will allow the widespread sale of this innovation.

Having self awareness has always been a criterion that we see as setting humans above and apart from other animals. The true measure of self-awareness is the ability to communicate that awareness to others. Experimentally it has been show that other creatures are self aware, including whales, dolphins, apes, dogs, etc. Despite this, humanity for the most part still exercises dominion over these lesser creatures, via denial and more effectively with might making right. Yet we are now on the verge of having actual AI androids, with self awareness a crucial component of true AI status, which will in effect be the beginning of a new race of beings. They will definitely be a race that seems outwardly in all respects human, but humans will have created them. Knowing humanity all too well I can see that we will expect this newly created race, to serve us well beyond being our “love slaves”. The law will adapt to cover these issues, but with ongoing legal/political warfare stretching over decades. Given the empty hullabaloo about Gay Marriage coming from religious entities today, the long continuing struggle for homosexual equality that has caused such bitterness, just imagine when the first male/female demands to be legally married to their android partner. (Please note here that I’m not even dealing with human cloning which is a parallel issue with the same potential volatile outcomes)

Sexuality and marriage are mere jumping off points for what will be one of the great confusing new realities/conflicts of human history, exacerbated by religious orthodoxy. This new race of beings, whether clone or android, will be self replicating in any of a number of ways. How will humanity deal with them, other than initially seeing them as chattel? If as a being you are self aware, have fair to high intelligence and the capability to self replicate, wouldn’t you chafe under the thumb of human rule? We then see that the basis of the popular “Terminator” http://en.wikipedia.org/wiki/Terminator_%28franchise%29    movie series has more depth than merely an excuse for spectacular battle and special effects, despite their creators unwillingness to plumb the less superficial depths of the films implications. Since many of those who regularly comment here are also Science Fiction enthusiasts, like me, they are quite aware that since Capek’s R.U.R., these themes have been constantly explored within that genre. Lately, I have been quite engrossed with Iain M. Banks “Culture” series, which incorporates this very discussion as its major theme. http://en.wikipedia.org/wiki/Iain_Banks  In the past though Isaac Asimov dealt extensively with this and developed his “Three Laws of Robotics”.  Asimov showed perhaps naive faith that all manufacturers would incorporate these “Laws” into their creations.  Unfortunately, due to the era Asimov worked in, exploring robot sexuality in depth would have been taboo and possibly legally dangerous. http://en.wikipedia.org/wiki/Three_Laws_of_Robotics

I began with robot sex and marriage, but I’ve ended up dealing with what to me will be the greater issue threatening or benefiting humanity. Given we don’t destroy ourselves first; humans will be creating sentient life very shortly. Since all new technology is impelled by the quest for knowledge, with the quest for profit following closely in its wake, evolutionary/revolutionary change is unavoidable. How we deal with these coming innovations may shape the future of our species for good or ill. I personally haven’t decided where I stand in terms of this beginning debate; perhaps you can assist with my ambiguity?

submitted by: Mike Spindell, guest blogger

In May 2010, Christopher Sharp used his cell phone camera to record Baltimore City Police officers arrest and beat a female acquaintance at the Plimlico Race Course. The officers detained Sharp, seized his cell phone, and returned it later with all his videos deleted, including videos of his young son at sports events. Sharp filed a complaint in the Circuit Court for Baltimore City Maryland which was later moved the United States District Court for the district of Maryland.

The United States Department of Justice has decided to get involved, on the side of Sharp.

The DOJ filed a Statement of Interest of the United States with the District Court. The statement starts off with a bang:

This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative.

The DOJ statement claims that the First Amendment protects the recording of police officers performing their duties in public. The statement cites the case of Glik v. Cunniffe (2011) wherein the United States Court of Appeals for the First Circuit held that the First Amendment “unambiguously” protects the right to videotape police carrying out their duties in public.

The DOJ statement also notes that in Roaden v. Kentucky (1973), the United States Supreme Court found that material that is protected under the First Amendment and is seized by a police officer, “without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.” The United States Court of Appeals for the Fourth District, in Altman v. City of High Point North Carolina (2003) wrote that “[a] seizure of personal property conducted without a warrant is presumptively unreasonable.”

The DOJ statement argues that the seizure and destruction of Sharp’s property without due process is prohibited by the Fourteenth Amendment. In the case of Mathews v. Eldridge (1976), the United States Supreme Court wrote that the “right to be heard before being condemned to suffer grievous loss of any kind … is a principle basic to our society.” Lofty words, frequently forgotten.

While it’s about time the DOJ started weighting in on these violations of a citizen’s constitutional rights, unless punishments are meted out to the officers involved, nothing will change. As long as officers can get away with this unconstitutional activity, the activity will continue. This is not an issue of training, it is an issue of discipline.

If the DOJ is sincere about their desire to prevent these constitutional abuses from continuing, they should bring charges against the officers for violation of 18 U.S. Code – Section 242, Deprivation of rights under color of law.

H/T: The Agitator, The Baltimore Sun, National Press Photographers Association, ACLU of Maryland, Simple Justice.

The case is Awad v. Ziriax, 2012 U.S. App. LEXIS 475 (January 10, 2012). One of the central issues was the claim that virtually no one could challenge the law — an increasingly (and disturbingly) common argument in federal court. In Awad, Oklahoma argued “ that Mr. Awad does not have standing because he has not suffered an actual or imminent injury . . . because the amendment has not taken effect or been interpreted by any Oklahoma court, Mr. Awad’s alleged injuries are necessarily speculative. They further contend that Mr. Awad’s assertion that he will suffer official condemnation of his religion is ‘personal opinion.’” Id. at *14. In upholding standing in the free exercise claim, the Tenth Circuit discussed cases including American Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010) and Catholic League for Religious and Civil Rights v. City and Cnty. of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc). The Court held that non-economic religious values are sufficient for standing, stating the

“Legislature did not simply adopt a non-binding resolution opposing the consideration or use of Sharia law in state courts, it proposed and the electorate agreed to enshrine such a prohibition in the state’s constitution. Mr. Awad is facing the consequences of a statewide election approving a constitutional measure that would disfavor his religion relative to others. The non-binding city resolution in Catholic League conveyed “a government message,” 624 F.3d at 1048. The Oklahoma amendment conveys more than a message; it would impose a constitutional command.”

The panel went on to examine the free exercise claims and found that “[t]he proposed amendment discriminates among religions,” said the judges. “The Oklahoma amendment specifically names the target of its discrimination. The only religious law mentioned in the amendment is Sharia law.” The state had argued that Sharia law was simply cited as an example of international authority barred under the law, but the panel saw a more sectarian purpose:

But that argument conflicts with the amendment’s plain language, which mentions Sharia law in two places.

First, the amendment instructs Oklahoma courts to “uphold and adhere to . . . if necessary the law of another state of the United States provided the law of the other state [*39] does not include Sharia Law, in making judicial decisions.” Id. at 168 (emphasis added). This language prohibits Oklahoma courts from upholding and adhering to laws of other states that include Sharia law but does not prohibit Oklahoma courts from upholding and adhering to laws of other states that include the laws of any other religion. On this basis alone, application of Larson strict scrutiny is warranted.

Second, the amendment states that Oklahoma “courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.” Id. (emphasis added). Appellants argue that the word “cultures” should be read to include religious groups, and that the amendment therefore “plainly prohibits the consideration of legal precepts associated with all religious denominations.” Aplt. Supp. Br. at 7. We disagree.

The amendment bans only one form of religious law—Sharia law. Even if we accept Appellants’ argument that we should interpret “cultures” to include “religions,” the text does not ban all religious laws. The word “other” in the amendment modifies both “nations” and “cultures.” Therefore, if we substituted the word “religions” for “cultures,” the amendment would prohibit Oklahoma courts from “look[ing] to the legal precepts of other . . . religions.” The word “other” implies that whatever religions the legislature considered to be part of domestic or Oklahoma culture would not have their legal precepts prohibited from consideration, while all others would. Thus, the second portion of the amendment that mentions Sharia law also discriminates among religions.

Because the amendment discriminates among religions, it is “suspect,” and “we apply strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246.

That triggers strict scrutiny analysis under Larson v. Valente, 456 U.S. 228, 255 (1982) See also Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The panel further noted:

The proposed amendment goes further than preventing courts from “applying” Sharia law. The amendment forbids state courts from “considering” those laws. See Aplt. App. Vol. 1 at 168. Even if the state could identify and support a reason to single out and restrict Sharia law in its courts, the amendment’s complete ban of Sharia law is hardly an exercise of narrow tailoring. Appellants have not carried their burden to show why the proposed amendment is “closely fitted” to a compelling interest.

The decision could well become an issue in the presidential election which has already seen the demonizing of all things Muslim by some. This site has been quite outspoken in its condemnation of Sharia legal systems. However, this ill-conceived law has accomplished little beyond wasting the money of the people of Oklahoma and tarnishing the image of Oklahoma. Ironically, as I have mentioned before, I have a great deal of affection for Oklahoma. I love visiting the state and I have always found Oklahomans to be incredibly friendly and kind. Yet, the legislature appears obsessed with sectarian and religious measures that leave the impression that the state is intolerant — which is not what I have found in many visits to the state.

It will be interesting if the state now pushes for an en banc, which I think is likely. They could skip the en banc and file directly with the Supreme Court, but I would expect cert would be difficult to secure. While some justices might hold anti-Sharia sentiments, many are not going to like the legislative limitations on what a judge may “consider” in a case (even though various justices have criticized the reliance on international authority in cases like Graham v. Florida). A majority of the justices clearly considered such authority not as binding but as relevant to some cases, writing in Graham:

The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

We will be watching for any appeal in the case.

Source: CNN

Renowned marine biologist Nancy Black faces 20 years in prison and a half million dollars in fines for allegedly unlawfully feeding killer whales. And no,she didn’t feed them people. Apparently,Black, who’s been featured on PBS, Animal Planet, and National Geographic has been charged with running afoul of  the Marine Mammal Protection Act.  The charges stem from a 2005 research trip in which Black filmed a gray humpback whale and a pack of killer whales swimming nearby. She’s accused of feeding the killer whales and then altering a video of the “crime.” Here’s her lawyer’s account of the heinous attack on the environment.

“She was out whale-watching with a full complement of passengers and spotted a humpback whale. It was a friendly whale, which loves to come up close to a boat and breach and frolic,” said Black’s attorney Lawrence Biegel. “There’s video of this, which she turned over, of this whale doing exactly that, literally going from one side of the boat to another.”

 Biegel says the killer whales were feeding off of gray whale blubber already in the ocean. “In the specific incident in question, Ms. Black used an underwater camera and filmed the eating habits of killer whales who were feeding off free-floating pieces of blubber from a gray whale that had been killed by a pack of killer whales.”

The trip is under scrutiny from state authorities, the National Oceanic and Atmospheric Administration, and the US Department of Justice. No word yet on whether the Boy Scouts or Sheriff Taylor from Mayberry have gotten involved.

Black is a former NOAA employee with an undisputed love for the environment and particularly whales. She hosts popular whale watching tours for students and environmentalists under the auspices of the Monterey (Calif.) Bay Whale Watch Tours.

Oh, by the way, she had a federally issued permit for the research trip in 2005.

When you consider not a single person from British Petroleum spent a day in the pokey or was even charged for the 2010 environmental meltdown that occurred in the Gulf of Mexico after the oil derrick disaster, you have to wonder about the notion of “equal justice under law,” and just who sets priorities for the publicly appointed guardians of the eco-system.

But then again our defendant’s  last name is not BP, Halibuton, or Transocean. According to the government it’s just “Black.”

Source: Yahoo

~Mark Esposito, Guest Blogger

When you contemplate all of the problems that beset us in this election year it is hard not to feel daunted by the task of finding solutions. Many millions of American’s are without jobs, with the prospect of future employment seeming illusory. The top 1% of the American population controls vast amounts of the country’s wealth.  http://www.businessinsider.com/15-charts-about-wealth-and-inequality-in-america-2010-4?op=1  Wages of average Americans have stagnated for the past 40 years to such an extent that our middle class is shrinking rapidly. The housing boom of years past has become a bust of monumental proportions and foreclosures are destroying formerly viable neighborhoods. Our once barely adequate “safety net” has been shredded and there are attempts to destroy both Social Security and Medicare as we know it. Despite a weak attempt at Medical reform millions of Americans find health care unaffordable, with many dying and others forced into bankruptcy to stay alive. Due to lack of money America’s once magnificent infrastructure is rotting and solutions are not on the horizon.

The collapse and bailout of our banking industry has cost us trillions and appears to have been brought about by fraudulent practices on the part of the industry, yet no one has been indicted. In fact the remuneration of top executives in this duplicitous industry has actually increased. Efforts to impose stiff controls ensuring that these artificial crises don’t happen again and that these huge financial entities do business ethically, have failed to pass the Congress. We see that the fallout from the American banking crisis has undercut the world’s economy and that economic crises in other industrialized nations appear regularly. Please notice I’m only referring to the economic problems we face and only producing a partial list of those economic problems.

We have seemingly come to the conclusion of an unnecessary war in Iraq, where trillions were spent and perhaps a million were killed, yet the withdrawal of troops is to bases that surround Iraq. We are leaving about 40,000 Americans in country, many as mercenaries (contractors is a euphemism) as we support the largest diplomatic infrastructure in any foreign nation. The war in Afghanistan still rages in a land that has never been significantly shaped by any outside empire, this despite the killing of Osama Bin Laden and the virtual destruction of Al Qaeda.  Hundreds of billions are being spent and the lives of our troops are put in danger, in an exercise with little hope of success. Billions are going towards building Afghanistan’s infrastructure as ours is falling apart. Yet these instances fail to raise the broad spectrum of the military/foreign policy problems continuing to plague us. These issues include a military budget that far greater than that of all other nations. http://en.wikipedia.org/wiki/List_of_countries_by_military_expenditures 

However, these three paragraphs still do not encompass the broad range of problems we Americans face. There is more to be touched on before we come to the conclusion that I’ve reached, that there is one problem that not only transcends all of these, but its need for immediate solution supersedes any of the others in importance.

On this blog the issue of civil liberties is constantly with us because our host/founder is a distinguished Constitutional Law Professor and Lawyer. Jonathan Turley’s career has been spent fighting for civil liberties and for our freedoms. One result of the tragedy of 9/11 has been the steady erosion of our civil liberties in the name of anti-terrorism. The formation of a “Super Agency”, the frighteningly named (on so many levels)  Department of Homeland Security has centralized LEO’s of all levels, both civilian and military intelligence organizations, into an establishment with unprecedented vigilance of American’s daily lives. We have allowed torture, used brainwashing and unlimited preventive detention. This doesn’t fully subsume the efforts made in the losing War on Drugs that has cost hundreds of billions and in fact has proved to be an utter failure. The major drug dealers receive the main benefits via higher profits created by this enforcement. A side effect, but perhaps far more costly has been the phenomenon of our country having the highest incarceration rate in the world. Our incarceration rate is way beyond Russia and China, not to mention other nations whose names are synonymous with oppression. We have literally created a prison industry, with privatization and hiring out of prisoners to work for private industries in virtual chain gangs. This is a return byAmericato indentured servitude and perhaps slavery. As any of our regular readers on this blog know the above merely superficially touches upon the problems we have in ensuring civil liberties and staving off prejudice.

So far I’ve touched on the critical issues we face regarding the economy, the Military/Foreign Policy establishment and on the erosion of our constitutional freedoms. The last area I’d like to briefly explore is that of the encroachment of religion into our political life and the radical new interpretations of Church/State separation it has brought. It is true that in America there has always been a tension between those who wear their religiosity on their metaphoric sleeves and the right of average Americans to live their lives as they see fit. This encompasses the right to believe, or disbelieve as we choose. I grew up in a time when great literary works were banned from our shores, where movies were censored, where an actual husband and wife on a TV show (I Love Lucy) had to be depicted as sleeping in separate beds and when she was obviously pregnant, the word pregnant couldn’t be used. In my native New York State, our Governor’s wife had to established residence in Reno,Nevada in order to divorce him, since divorce was not allowed in New York. This was how far religion already had encroached upon civil life and the lives of ordinary people in times past.

Today we are faced with the specter of religion once again dominating our society. These new religious zealots disdain separation of church and state; re-write history to suit their narrow views; would force a woman to bear children she doesn’t want and enforce their peculiar notions of sin upon all of us. They would resurrect the marginalization of homosexuals via depriving them of their constitutional rights and even go so far as some as suggesting we ban contraception. They raise a legitimate fear of returning us to the “Dark Ages” of only sixty years ago. Sadly, these problems with religious zealots that I’ve enumerated aren’t even a complete catalog of things we should fear by their renewed rise to political power through overwhelming wealth. 

What I propose to you here is that all of these difficult situations, to those who view them as problems, have arisen out of one overarching issue. This is the source for all of those dilemmas detailed above and therefore must be dealt with before all of the others. It is America’s transcendent issue. This is the problem of the influence of wealth upon our political system. All of the evils (to my mind) listed above arise from the power to control government that money gives. Think about that in context of every issue I’ve detailed above and you will see that at its root is the influence of entrenched wealth upon our political system. The economy is a no-brainer. The Military/Security/Industrial Complex, of which Dwight Eisenhower warned, has controlled our military budget and our foreign policy. This interlocking self interest group has required diminishing our civil liberties to justify the money spent on wars and intrusion into foreign affairs, by promoting a climate of fear. They also use unconstitutional intrusion to intimidate and/or punish those who expose their misdeeds. Religious institutions free of taxation and oversight have developed huge war chests to control politicians and ensure that they adhere to certain litmus tests of “putative piety”. 

From lobbying efforts and emoluments offered politicians, to the vital need for campaign financing that politicians rely on to get elected/re-elected, money drives our system. All of the difficulties we face arise because of the influence of wealth upon our political system. Therefore, in my opinion this should be the transcendent issue that must be addressed if we have any hope of making America conform to the vision of our Founding Fathers. While some may argue that I’m belaboring the obvious, I would put to them that nothing else can be changed until we change our laws on campaign financing, lobbying and corporate personhood. In that mix we should ban religious entities, not from their right to freely practice their beliefs, but from the ability to influence politicians through money that is un-taxed. In America everyone should have the right to have their say, but it is intolerable that the opinions of some “elite” citizens prevail because their money is considered “free speech” as was formulated in the SCOTUS case Buckley v. Valeo http://en.wikipedia.org/wiki/Buckley_v._Valeo and then recently expanded in the infamous “Citizens United Case”. http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission .

 An example of “Citizens United” impact was seen this week in Iowa where there were massive infusions of so-called “Super-Pac” money for campaign ads, which changed the dynamic of the Iowa Caucus. The Jack Abramoff lobbying case brought out the sickening details of how politicians were bought and corrupted. Abramoff  ( http://en.wikipedia.org/wiki/Jack_Abramoff ) was recently released from a minor jail term, but most of those he was involved with, like the ubiquitous Grover Norquist and Karl Rove were never indicted. That Abramoff is trying to atone for his behavior by speaking out against money in politics, is but a cruel irony of how powerless the system is to deal with its corruption by money. 

My conclusion is that with so many problems to deal with in our country our efforts to bring significant reform must “follow the money”. If we can’t limit the destructive effect of wealth upon our political system, our efforts at dealing with the many other issues destroying our Constitutional government will fail. I believe we must start here. What do you think? Below are links to organizations that have been formed to fight the influence of wealth and to overturn Citizens United. If you agree with me you might check some of them out to see if they are worthy of your support.

http://pac.progressivesunited.org/page/rein-in-influence?sc=google_pac_rein-in-influence_3&gclid=COzhw7HFu60CFUKR7QodoWUI_w

http://democracyisforpeople.org/

http://www.democracynow.org/2010/10/28/free_speech_for_people_coalition_urges

http://www.movementforthepeople.org/wp-content/uploads/2011/01/CfAW_ActionToolkit.pdf

http://sanders.senate.gov/petition/?uid=f1c2660f-54b9-4193-86a4-ec2c39342c6c 

Submitted by: Mike Spindell, guest blogger

The group has previously stirred up controversy over what is described as cult-like activities. A site that appears tied to the group explains:

The Samanta Roy Institute of Science & Technology was founded and is headed by Dr. R. C. Samanta Roy, a naturalized American citizen originally from India. The goal of this non-profit organization is to establish a world-class educational institute in the Shawano [Wisconsin] area.

Isaacson is also president of a subsidiary called Yehud-Monosson USA Inc., which owns gasoline stations and convenience stores. It was seeking Chapter 11 status to reorganize. That was changed to a Chapter 7 proceeding after a finding that Yehud-Monosson had acted in bad faith — permitting a trustee to liquidate assets to pay creditors (the ultimate fulfillment of this group’s sense of persecution and conspiracy).

The papers in the case included such observations as the courts being “composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church.” Dreher is called a “Catholic Knight Witch Hunter” carrying out the orders of the Vatican.

Netts has indicated that the words are Isaacson’s and that she felt “caught in the crosshairs” between ethics requirements and her client’s demands: “I was trying to approach the broader picture for this client.” She insists that she tried to find a lawyer to replace her, but “no one will touch the case.” That is not a very persuasive argument. No lawyer is required to be the mindless mouthpiece of a client. I have severed representation of clients, including a lawyer, who was acting in a fashion disrespectful to the court or to counsel. Notably, Nett, 36, was raised in the group and says that she became a lawyer because Cohen told her Jesus sent him in a vision telling her to go to law school.

Both women were fined $5000 and the arrest warrant was issued when Isaacson did not appear in court. The judge dropped her earlier demand for letters of apology because she found the women “unrepentant.”

The papers suggested that the case was part of a Catholic conspiracy and that court officials were a collection of “dirty Catholics” bent on their destruction.

Another related site, citing Issacson, proclaims “Catholism is NOT a religion but a business.” The website publishes the response of Isaacson to the Court. Here (Isaacson Response) which includes the following statement:

With respect to the reference to Nancy Dreher, the Catholic judge, that statement is indeed true and accurate. In referring to Nancy Dreher as being a “Catholic judge”, it is not referring to being a member of the Roman Catholic Church. It is referring to a mentality and an adherence to a universal creed of White Supremacy. “Catholic” also refers to membership in the universal Christian faith. All Christians have a creed: a belief in the father, son, and holy ghost. They believe that no one has rights to “heaven” except through their dirty book. They hold the patent to “god” and can go to every nation on earth to force their vomit down everyone’s throat. Nancy Dreher cleverly asserts that she is not “Catholic” in the sense that she claims not to be a member of the Roman Catholic Church, but she cannot deny her “catholic” mentality or catholic Christian origin which dictates a person’s entire life. Only “White Christians” have a right to life, and whether or not any minority has any rights is in the White Christians’ sole discretion. Even now, even though Nancy Dreher was clearly wrong in holding a secret hearing, she still stubbornly asserts she is right. That is the catholic mentality of a Christian. Nancy Dreher certainly is not Hindu, Muslim, Jewish, or Bhuddist [sic]. Nor is she an atheist. If she were an atheist, at least one could expect to see some justice.

Nancy Dreher’s actions speak louder than words as to who she is, what she is, and what she represents.
Thus, every single word in the aforementioned statement is true. No cause for sanction
exists.

In addition to $500 for each infraction, Nett was ordered to take 10 hours of classes in legal ethics over the next year.

Just to make this bizarre picture complete. The judge is not Catholic and, while noting that Isaacson “has absolutely no clue what my religious beliefs are, if any, and it is nobody’s business,” Dreher stated in a footnote that she was “not of any particular faith.”

This is the not first such religiously infused attack on a judge. Convicted church leader Warren Jeffs filed a renewed motion to force the judge to recuse herself. This time, however, the demand came reportedly came from God himself. State District Judge Barbara Walther was told that she should “step away from this abuse of power against a religious and pure faith in the Lord.”

Source: Twin Citiesas first seen on ABA Journal

The conflict began when Clorox began to show “playful home videos” of cats engaging in “clever behavior.” The premise was that cats are “smart enough” to choose litter with less odor. That presumably is fair game in the kitty litter business. Here is how the court described the commercial:

Sometime around February 14, 2011, Clorox began airing a new commercial, the one here in issue. Id. ¶ 14 & Ex. 6. In this commercial, cats are featured doing “clever” things and the voiceover announces: “We get cats. They’re smart. They can outsmart their humans. And their canines.” Then a cat is seen entering a litter box and pawing through the litter as the voiceover continues, “That’s why they deserve the smartest choice in litter.” Id. The commercial then transitions to a demonstration that displays two laboratory beakers. One beaker is represented as Fresh Step and the bottom of it is filled with a black substance labeled “carbon.” The other beaker is filled with a white substance labeled “baking soda.” Id. While the second beaker is not identified as any specific brand of cat litter, Arm & Hammer is the only major cat litter brand that uses baking soda. Id. ¶ 7. Green gas is then shown floating through the beakers and the voiceover continues: “So we make Fresh Step scoopable litter with carbon, which is more effective at absorbing odors than baking soda.” The green gas in the Fresh Step beaker then rapidly evaporates while the gas level in the baking soda beaker barely changes. Id. ¶ 18. During this dramatization, small text appears at the bottom of the screen informing the viewer that Clorox’s claims are “[b]ased on [a] sensory lab test.” Id. at ¶ 19.

The rub is the claim that carbon is “more effective at absorbing odors than baking soda.” Only Arm & Hammer uses baking soda for kitty litter. Arm & Hammer relied on the doctrine of “falsity by necessary implication,” the claim that representations of the particular aspects of a product may implies claims that may be “literally false” within the meaning of the Lanham Act.

Arm & Hammer cried foul and showed the court that there is no difference in odor reduction. Moreover, they noted that Clorox used jars that were sealed for between 22 and 26 hours.

Rakoff then held forth on the ugly reality of cat litter:

The Jar Test cannot reasonably support the necessary implication that Clorox’s litter outperforms C & D’s products in eliminating odor in cat litters. As noted above, Clorox sealed the jars of cat waste for twenty-two to [*11] twenty-six hours before subjecting them to testing. In actual practice, however, cats do not seal their waste, and smells offend as much during the first twenty-two hours as they do afterwards. Thus, the Jar Test’s unrealistic conditions say little, if anything, about how carbon performs in cat litter in circumstances highly relevant to a reasonable consumer. Moreover, to substantiate the commercial’s implied claims, the Jar Test must prove not only that carbon eliminates odors in open cat litter (as opposed to sealed jars), but also (1) that it outperforms baking soda in that task and (2) that baking soda eliminates only thirty-two percent of odors, the amount by which, in the commercial, the gas dissipated in the beaker labeled “baking soda.” Given that the Jar Test says little about how substances perform in litter as opposed to jars, it cannot possibly support Clorox’s very specific claims with regard to litter. Consequently, the necessarily contrary implication of Clorox’s commercials is literally false.

Who needs Katz when you have real cats to make legal doctrine? While “cats do not seal their waste” is unlikely to reach the same fame as “the fourth amendment protects people not places” from Katz, it will certainly secure a place in this industry for decades to come.

Rakoff’s rejection of the expert opinions used as the basis for the commercial is likely to be cited in future challenges over commercial claims. Rakoff rejects the methodology used by the company, noting “Clorox responds that the mere fact that humans are noisy instruments does not preclude a uniform rating of zero where no malodor was in fact present.” (By the way, kitty litter sniffers was not on the list of best jobs for 2011, but I would posit that no matter how little time is needed for this job, it is not worth the money).

The case is Church & Dwight Co v. Clorox Co, U.S. District Court, Southern District of New York, No. 11-01865.

Source: Chicago Tribune

Kudos: Alan Heymann

What is particularly impressive is that 3 million of those viewers were in the last twelve months.

Again, I can only thank you for your friendship and your contributions on our blog. With our emphasis on civil liberties, it is heartening to see so many people from around the world visiting our blog. It is a wonderful reminder that we are not alone in our concern for individual rights and liberty.

Well done, everyone, and congratulations.

We have tried to create something special at this site for the discussion of legal and policy questions in a civil and substantive manner. The success of the blog is due entirely to you. I view posts as merely creating a foundation for broader discussion, much like cases in a law class. It is what you bring to the discussion that makes this blog unique. We will continue to improve the site and I am always interested in suggestions on how to improve the site further. The nice thing about this competition is that it introduces new people to the blog and I hope some of them will decide to stay and contribute to our discussions. More importantly, I needed something to overcome the performance of the Bears this season!

Congratulations to the other winners and competitors in this year’s competition. This competition often allows us to explore the ever widening array of legal blogs and I encourage you to check out some of the other sites among the top 100 blogs.

Thanks again everyone for pushing so hard to help improve the blog and to secure this top spot.

You can vote at this site by clicking on the “opinion” category and we need your vote. A quick registration is needed to prevent cheating in the competition.

Please spread the word and let’s see if we can put the blog over the top. For those who say this war is over, think of how the Germans bombed Pearl Harbor and do the right thing:

FLOG THE BLOG: Have you voted yet for the top legal opinion blog? WE NEED YOUR VOTE! You can vote at HERE by clicking on the “opinion” category. Voting ends December 30, 2011.

Montana is one of nine states with recall laws. The other states are Arizona, Colorado, Louisiana, Michigan, Nevada, North Dakota, Oregon, and Wisconsin. Eighteen states have recall laws, but most do not apply to federal officers.

Montana Code 2-16-603, on the grounds of physical or mental lack of fitness, incompetence, violation of oath of office, official misconduct, or conviction of certain felony offenses.

Presumably, they are arguing that voting for an unconstitutional measure that allows for indefinite detention of citizens constitutes both a violation of the oath of office and incompetence. Usually official misconduct does not include policy differences, though voting for potentially authoritarian powers would not be viewed as good conduct in a free nation.

The move by the Montana votes shows something that I found in doing speeches around the country: there is no difference in red and blue states in citizens (1) fed up with our current two-party monopoly and dysfunctional politics and (2) opposed to the loss of civil liberties in this country. This should be the time when civil liberties groups are pushing aggressively, but many are divided in their willingness to oppose Obama — a problem that has existed since the early days of his Administration when he tacked hard to the right on national security laws. These politicians, including Obama, have long made the cynical calculation that civil libertarians have no where to go politically and that votes continue to be motivated by party allegiance and the appeal of personalities. These Montana voters are trying to show that they are wrong.

Source: Daily Kos

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Last night, I made our traditional Cioppino soup — a tradition started by my late father, Jack Turley. I hated the soup as a kid so fate has left this tradition to me. I am now as addicted to the soup as my father was. On Christmas Eve, we then went to Midnight mass at St. Mary’s of the Lake to hear my 84 year old mother sing in the choir. Today, I am cooking the beef as well as the Yorkshire pudding, horseradish. and gravy. We will have the entire family clan over to the house.

Waiting For Santa were notes from the kids and homemade cookies with milk. Below is the note from my son Aidan. Not surprisingly, Santa was won over by the note and delivered many of the requested items.

Dear Santa:

How’s your reindeer doing? Well don’t answer right now. Have some cookies and milk. By the way, how was your trip? And was I good this year? I’ve got so many questions. But I know you’re running late and can’t answer many. But right now please relax. I know how much work you’ve done.

Nice meeting you.

Sincerely Aidan

P.S. I ‘m a big fan.

Christmas List

Raindow maker
3rd Book in my series
Science Kit
Nutcracker
Leather boots
Candy
New Violin Book/Rosin
Squishy toy
Square pixleized clock

For her part, Madie (6) added on her note that “the cookies are only for you” and then added “P.S.: I am scared of you. From Madie to Santa Claus.”

The Turley family wishes everyone a happy and safe holiday. I will be toasting our blog family tonight and give thanks for the wonderful community we have created at this site.

Best wishes,

Jonathan Turley

Respectfully submitted by Lawrence Rafferty(rafflaw)-Guest Blogger

The term is one that is familiar to all of us.  The First Amendment gives all citizens the right of Freedom of Speech and the right to assemble.  Simple enough, right?  Evidently it is not so simple in the State of California.  Recently, members of Occupy Los Angeles were arrested while making full use of their First Amendment rights and after posting a $5,000 bond to get out of jail, were offered a deal to avoid a trial.  The Free Speech defendants were told that if they took a class offered by a private company for the mere cost of $355.00, they would not have to go to court for a trial.

At first glance that offer sounds reasonable.  Just what is the “class” all about? “For $355, protesters can pay a private company for lessons in free speech. American Justice Associates offers the educational program taught by an attorney – Neil G. Anderson – a former police officer and Supervising Deputy District Attorney for Sacramento County, and his partner attorney Deborah Bryce McKinley of Atlanta, GA.”  Crooks and Liars  This story is amazing to me on a couple of levels.  First of all, what can attorneys teach protestors who were arrested while exercising their First Amendment rights?  Are they going to tell them how many ways the government can try to control and limit those rights?  Are the teachers going to give the “students” lessons on how to maximize their First Amendment rights?  Is the class just a bad dodge by the State to avoid further bad publicity by eliminating the need for trials where the protestors can exclaim to the world that they were arrested because they had the temerity to actually use their First Amendment rights of Free Speech?

This attempt by the City of Los Angeles to make it more difficult on people who protest is an affront to the very Free Speech ideas that they claim will be taught in this class.  If anyone should take the class on Free Speech, it should be the City police and the City Attorney who is pushing this nonsense. The protestors and their counsel are not taking this class offer lightly, but they are fully aware of the irony caused by the offer.  “But a civil rights attorney who has worked closely with the protesters called the class “patronizing,” and said the demonstrators who were arrested are the last people needing free-speech training.  “There they were exercising their 1st Amendment, their lawful right to protest nonviolently,” said attorney Cynthia Anderson-Barker.  Several Occupy protesters, many of whom are fueled by anger at what they perceive as corporate greed and the increased privatization of public services, have noted the irony of being asked to pay a private contractor for the program. The tuition will go to the company, not the city, officials say.”  LA Times

It amazes me that our society has not reacted more forcefully against these arrests and post arrest tactics as well as the many militant arrests made throughout the country against Occupy Wall Street protestors. Maybe the class offered in Los Angeles will be able to explain just what happened to the Free Speech that our Founding Fathers envisioned when they wrote the First Amendment.

I wonder if the “teacher” of this class will assign a homework protest.  Maybe the company pocketing the $355.00 will hire Prof. Turley to be a visiting professor so he can explain what true Free Speech is!  Maybe not.

Merry Christmas and Happy Holidays to all!

It’s Christmastime again and since my childhood, long ago, the Frank Capra film “It’s A Wonderful Life” has been shown time and again in this season, providing a message of redemption, hope and joy that we associate with this time of year. You all know the plot about selfless George Bailey (James Stewart) a man who has sacrificed his dreams for others and because of his selflessness winds up running the Bailey Building and Loan Association, of Bedford Falls, NY. Because of George this institution has provided home loans for the poor of this rural community and serves as its bank. With the Company on the verge of bankruptcy, through duplicity, George is on the verge of suicide distraught over the losses to those he loves and worried by needs of the average people of his town. You all know this plot and if you don’t its summary is here. http://en.wikipedia.org/wiki/It%27s_a_Wonderful_Life#Plot . I must warn you, perhaps it’s the time of year but I choked up reading the plot, yet again, as I do every time I see this beloved movie.

This introduction has not been made because I’m about to write about banks, or the depredations of the banking industry. Others here and our host have already written extensively on the predatory nature of the banking industry and the harm it has caused to our country. My point of this opening is that we have all grown up with certain mythologies about businesses that provide financial services to the public. This film has had a place in defining that American mythology, in this instance about a bank of sorts, whose leader believes in aiding the community first and profits second. Myths shape our thinking and from my youth I still remember the ad slogan “You have a friend at Chase Manhattan”.

We’ve discovered that banks are anything but our friends. Their bottom line has surpassed service to the point that each customer is looked at as a “cash cow”, to be plundered incessantly with usurious interest and fees for what should be free services. But what about “You’re in Good Hands with Allstate”, “Nationwide Is On Your Side”, or “Like A Good Neighbor State Farm is There”?  Surely the Insurance industry supplies the safety net we want for our homes and cars. Do they? Last week I was sent an article by the Independent Claims Adjuster handling my interminable case for mold damage to my home. He’s helping greatly so this isn’t about me, but the article he sent certainly puts into context all the delays in the process and how property insurance companies are maximizing their profits at the expense of their customers.

The article my claims adjuster sent was “Insurance Claim Delays Deliver Massive Profits To Industry By Shorting Customers” written by Mollie Reilly and Max Rosenthal. It appeared in the December 13th Huffington Post Business section. It describes a change in claims payment system procedures sold to Allstate and other Insurance Companies by the large consulting firm McKinsey and Company, which boosted their profits at claimants expense.  http://www.huffingtonpost.com/2011/12/13/insurance-claim-delays-industry-profits-allstate-mckinsey-company_n_1139102.html

“Unlike many other businesses, the insurance industry is bound by law to act in good faith with its customers. Because of their protective role in the lives of ordinary citizens, insurers have long operated as semi-public trusts. But since the mid-1990s, a new profit-hungry model, combined with weak regulation, has upended that ancient social contract. “Claims have been converted into a money-making process,” said Russ Roberts, a New Mexico-based management consultant and former business professor at Northwestern University who has studied the insurance industry’s evolution from a service business to a profit-driven machine. The change started when consulting giant McKinsey & Company sold Allstate and other leading insurance companies on a new system to boost the bottom line: Rather than adjusting claims the traditional way, which gave claims managers wide latitude to serve customers, insurers embraced a computer-driven method that produced purposefully low offers to claimants.

We have all been led to believe that a property insurer has our interest at heart and wants to make us whole after disaster strikes. While some problems have arisen in disputes where there has been massive damage done by natural disaster, the myths and the ads tell us that these companies are more than our friends, they are our protectors. It seems, as with many myths, this is no longer the case, if it ever has been.

“McKinsey’s strategy put profits above all. One slide in the McKinsey presentation illustrated this philosophy by painting the insurance business as a zero-sum game: “Improving Allstate’s casualty economics will have a negative economic impact on some medical providers, plaintiff attorneys, and claimants. … Allstate gains — others must lose. Allstate has certainly gained: It made $4.6 billion in profits in 2007, double its earnings in the 1990s. The stunning increase, said Russ Roberts, came through “driving down loss values to an average of 30 percent below the actual market cost” — that is, paying dramatically less on claims”.

We see that through delaying payment of claims, paying minimal claim amounts and forcing people already strapped by hardship to take it or sue, “Good Hands” companies like Allstate are making record profits, while some people’s lives are collapsing around them, even though they prudently bought property insurance. While I am not surprised by this, I am outraged. Is every purchase of ours whether product, or service to be based on “caveat emptor”? Is this what those who push so hard to have regulations on businesses stripped working for? Is the complete burden of having to painstakingly investigate every entity we deal with to be laid on our shoulders? Is this the type of society we all want?

“An insurance company can make a lot of money on the small claims,” said Jay Feinman, a professor at Rutgers University School of Law, “because if you save a few dollars on a huge number of claims, it’s worth more than saving a lot of dollars on a very small number of claims.”

“Allstate is the best-known user of the McKinsey model, topping the list of the “Ten Worst Insurance Companies in America” published by the American Association for Justice. But Allstate’s rise in profits has led most of the industry to adopt the same approach. McKinsey has worked with State Farm, another insurance giant, and other companies in redesigning their claims systems. Feinman cautioned in his book “Delay, Deny, Defend” that the two major names “are just the largest players in the industry … [the ones] whose involvement with McKinsey & Company in the transformation of claims is the best documented.”

By using the tactic of “Delay, Deny, Defend” these companies are purposely avoiding paying claims, or paying much less than they should, because they in the end have the upper hand. Imagine, as a case presented in this article describes, losing your home and belongings in a claimable disaster. Most Americans would be totally at a loss about what to do next. Most of us don’t have the wherewithal to sustain a financial disaster like that. That is what this strategy counts on. People are being toyed with at a time of crisis and through that the Insurance Company reaps profits far beyond what their business should entitle them to make.

“Roberts, the management consultant, said that companies like Allstate attempt to pass off claims delays as fluke occurrences. But, he said, they are actually routine and intentional products of the McKinsey system: “The Allstate/McKinsey system for ‘lowballing’ claims payments … is driven by the claims performance management and pay systems from the top to the bottom of the organization.”

Feinman, the Rutgers law professor, also suggested the deck is stacked against individuals who make claims. “You have an accident or a fire in your house. You call up the insurance company. You describe the circumstances. Maybe they send an adjuster out, and they say it’s not covered, or it’s covered but here’s the dollar amount that we’re obligated to pay you,” he said. Most people, Feinman said, do not have the expertise “to know whether or not that’s right.”

What happens to those people with scant resources, with great damages to their home ad belongings? How have the lives of those with these companies coverage been adversely changed by this policy of greed? I think greed is the correct terminology, though to me it also verges on fraud. As a business major in college I was taught that when you supplied a service to someone, the best business practice was to make good on the service you offered. Now of course I graduated in the mid 60’s and as I understand it since Reagan and the 80’s, Business Schools are teaching a revised curriculum that makes the bottom line the only consideration of a business executive.

We have all seen insurance industry sponsored commercials telling us that “insurance fraud” is causing our rates to rise and asking us to pressure our legislators to draft even more severe legislation to combat this evil. Some I’ve seen have even suggested turning in our family and neighbors that we believe are committing insurance fraud “because insurance fraud hurts everyone”. I would submit that the real threat of insurance fraud is coming from the insurance industry itself as it searches for ways not to deliver services they have contracted to provide. Sadly, although both the Federal and the various State governments have agencies to regulate this industry, the regulators seem to have been seduced by the regulated.

“…experts like Feinman argue that insurance regulation has become little more than a fig leaf. State insurance departments are usually understaffed and overwhelmed. And even if they had the legal firepower to contend with giant insurance companies, Feinman said, “the regulators are closer to the industry than they are consumers.” Eleven of the past 15 presidents of the National Association of Insurance Commissioners (NAIC) went on to work for the insurance industry after leaving office, while a 17-year study from two Georgia State University professors found that around half of state-level insurance commissioners did so as well. When combined with penalties that Feinman described as “laughably low” in many states, this close relationship means that regulation does not provide an effective check on insurance companies. And state governments themselves have incentive to place consumers on the backburner. Because insurance taxes are a major source of revenue for the states, said Roberts, insurance oversight commissions are usually more concerned with keeping companies solvent than resolving the problems of policyholders”.

So we see also that government regulation of the Insurance Industry has been ineffective. Some of the reasons give above are a “revolving door” between regulator and industry. Also mentioned is that on State level insurance taxes provide the State with a good deal of revenue. I would also suggest though that the Insurance Industry is the source of a good deal of political campaign funds and their payback is lax oversight. This inevitably leads us to the great debate in America between the “Too Much Government” side and those like me who see a dire need for effective government regulation. I know there are more than a few who read this blog who rail against how government regulation has hurt the “free market”. I would ask them to use the link to the article I’ve posted and mull over if they think this method of doing business by the insurance industry is a fair one. If they agree with me that this is a bad, possibly fraudulent business practice, what then can we as a society do about it, or do they think that it is a matter in which government should not intervene?

We are currently one of the most visited civil liberties blogs in the country. We often conflict with VC on issues like privacy and Supreme Court cases. That ideological difference makes this year’s competition even more intense. You can vote at this site by clicking on the “opinion” category and we need your vote. A quick registration is needed to prevent cheating in the competition.

Please spread the word and let’s see if we can close the remaining gap. While I respect our counterparts at VC, we deserve this honor. After all, to paraphrase Stuart Smalley, “We’re good enough, we’re smart enough, and doggone it, people like us!”

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Even after hundreds of people have shown to be wrongly convicted by DNA evidence, prosecutors continue to fight efforts of prisoners to test such evidence — even when they are willing to pay for the testing themselves.
In this case, Judge Anderson is accused of knowingly withholding exculpatory evidence that might have avoided an innocent man spending 25 years in jail for killing his wife.

For his part, Judge Anderson is contesting the authority of the court to investigate his work as a prosecutor. After long denying the right to the evidence by Morton, he is now arguing that he also lacks any right to investigate the withholding of the evidence.

Anderson’s bio on the court notes that he was selected as “Prosecutor of the Year” and “Outstanding Prosecutor Upholding Victims’ Rights.”

Every state should guarantee the testing of DNA evidence in major felony cases and allow for private testing in all cases at the cost of the accused. Notably, last year, a Texas state committee looked at the state’s first 39 DNA exonerations and found seven involved evidence suppression or other prosecutorial misconduct.

Source: LA Times as first seen on ABA Journal

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On CBS’s “Face the Nation,” Gingrich indicated that he would call judges who hand down controversial opinions to appear before Congress to answer for their transgressions and would send federal law enforcement to arrest judges failed to appear.

It is the latest attack on the judicial branch — attacks that led Mukasey to denounce his proposals as “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle.”

Here is one of the exchanges:

SCHIEFFER: Let me just ask you this and we’ll talk about enforcing it, because one of the things you say is that if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute.
I just want to ask you from a practical standpoint, how would you enforce that? Would you send the capital police down to arrest him?

GINGRICH: If you had to.

SCHIEFFER: You would?

GINGRICH: Or you instruct the Justice Department to send the U.S. Marshal. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word “benediction” and “invocation”? Because before you could — because I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it.
Now clearly since the congress has….

SCHIEFFER: What if he didn’t come? What if he said no thank you I’m not coming?

GINGRICH: Well, that is what happens in impeachment cases. In an impeachment case, the House studies whether or not — the House brings them in, the House subpoenas them. As a general rule they show up.

It is the very definition of demagogy to dangle out the image of judges being clapped in irons to satisfy citizens angry over decisions by judges. Article III is designed to guarantee independence from people like Gingrich so that judges can rule in favor of the Constitution and, yes, at times take positions disliked by the majority.

Source: Washington Post

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Maclovio Bautista, a legal resident of Washington state and the U.S. for more than twenty years, is under threat of deportation because he was caught giving a ride to an illegal alien. While on their way to see a mechanic, they were pulled over by a Border Patrol agent. Bautista’s companion fled only to be apprehended later. Bautista was held for three days at the Northwest Detention Center in Tacoma.

A spokesman for the Border Patrol, Jeffrey Jones, said that agents are empowered to detain “anyone” on suspicion of “alien smuggling” if they’re found to have an illegal alien in their vehicle. Jones said it’s a crime to transport an illegal alien “within” the United States.

Jones cites U.S. Code §1324 (a)(1)(A)(ii) which reads:

knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;

That last portion, “in furtherance of such violation of law,” is the relevant phrase. Ann Benson, director of the Washington Defender Association’s Immigration Project, claims that “simple transportation does not meet the legal test for conviction.” Let’s look at the case law.

The Ninth Circuit Court of Appeals has jurisdiction for Washington state. In the case of United States v. Moreno (1977), the Ninth found:

Mr. Moreno was transporting the aliens as part of the ordinary and required course of his employment as foreman.4 As such, his transportation of the aliens was only incidentally connected to the furtherance of the violation of law, if at all.

…

We merely state that where the transportation of such an alien occurs, there must be a direct or substantial relationship between that transportation and its furtherance of the alien’s presence in the United States.

The Ninth’s test is that a “direct or substantial relationship” must exist for “furtherance of such violation of law” to have any meaning. The Court recognized that a broader interpretation of that phrase would “potentially have tragic consequences for many American citizens who come into daily contact with undocumented aliens and who, with no evil or criminal intent, intermingle with them socially or otherwise,” creating “a new crime and a new class of criminals.”

Is the Border Patrol unaware of the Ninth’s ruling or do they think they’re above its jurisdiction?

In a patchwork of rulings, other Circuits have different interpretations of the “in furtherance of” phrase. In the case of United States v. 1982 Ford Pick-Up (1989), the Sixth Circuit found that Moreno was wrongly decided. The Sixth took an “intent-based” approach:

The government may not obtain a forfeiture under section 1324(b)(1) pursuant to a violation of section 1324(a)(1)(B) unless it proves that the defendant willfully transported an illegal alien with the specific intent of supporting the alien’s illegal presence.

In United States v. Merkt (1985), the Fifth Circuit found that:

Willful transportation of illegal aliens is not, per se, a violation of the statute, for the law proscribes such conduct only when it is in furtherance of the alien’s unlawful presence. The jury must be instructed that proof of this element of the offense is prerequisite to conviction.

In United States v. Parmelee (1994), the Seventh Circuit ruled that the government must prove the “in furtherance of” part of the case:

As in other criminal prosecutions that require mens rea, the government may prove the defendant’s knowledge by reference to the facts and the circumstances surrounding the case.

While our states and cities are cutting services due to budget shortfalls, it’s refreshing to see that the federal government can afford to spend tax dollars arresting, incarcerating, and trying drivers who simply give rides to illegal aliens.

H/T: Seattle Weekly, Peninsula Daily News, Catholic Legal Immigration Network, Radley Balko.

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The hearing begins at 8:30 am in Salt Lake City before Judge Clark Waddoups.

One interesting issue raised by the Court was whether granting relief to the Browns would violate the conditions by which Utah was allowed to enter the Union. We filed a response on that issue arguing that our case would not violate the so-called Enabling Act. Here is that filing: Brown.Response.Show Final

Joining me this morning in court is my former student and local counsel, Adam Alba.

Here is the complaint filed in the case: Brown Complaint

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I have previously written and discussed that I viewed this case as a close one with some solid arguments being made on both sides. While the existing precedent supports the Administration, there is ample authority that would support the Court in reversing the lower court and ruling for Arizona on the issue of preemption. The most interesting constitutional question in the case is the implied preemption claim made by the Administration — arguing that, even if the state passes a law that enforces federal rules, it runs counter to federal authority.

With a hearing around April, the Court could rule by July — well in advance of the presidential election. I have expressed confusion of the strategy of the Administration in pushing this issue. I am not sure which is worse for Obama: to lose this case or to win this case. Polls show Americans heavily opposed to illegal immigration and generally supportive of these state efforts.

Along the vein, the Administration picked the world’s worse time to propose an unmanned entry point around the Mexican border. Under the proposal, people could cross by swiping a card and they could communicate with agents 100 miles away. The idea is not as ridiculous as it has been portrayed, but who on Earth would pick this time to make such a proposal? Much like the Christmas tree tax, there does not appear to be anyone working at the switch to time these proposals.

The Kagan recusal is likely to add to the demands that she agree to recuse herself from the health care case, as she had other issues that went through her office as Solicitor General. Kagan previously recused herself from the last immigration decision involving Arizona.

The Administration could have delayed these cases and worked to scuttle review. Instead, it has been doubling down on immigration and filing challenges to state laws when it could have allowed others to advance these claims (while reserving the right to intervene as an amicus as has been the practice in the past). It has now largely engineered both a health care ruling and immigration ruling to come down before the election. I fail to see the wisdom in that strategy but the White House appears to believe that this is a winning strategy to have a ruling on the two most divisive issues in the country.

Source: CBS

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Respectfully Submitted by Lawrence Rafferty(rafflaw)-Guest Blogger

Now that I have gotten over the Bears overtime loss to the Bronco’s, it is time for the Night Shift to get to work.  I imagine that most of us remember the so-called “Gang of Fourteen” that came to prominence during the George W. Bush Administration.  This group of Senators actually decided that the Senate should give all Judicial nominees an up or down vote in the full Senate except in some very extreme circumstances. “In 2005, a group of senators known as the “Gang of 14” determined that all judicial nominees should receive an up-or-down vote absent “extraordinary circumstances.”  As Senator Lindsey Graham explained the agreement at the time,’ “ideological attacks are not an ‘extraordinary circumstance.’ To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of a person, not an ideological bent.” ‘ American Constitution Society  It is a shame that the Gang of Fourteen, or at least the survivors of that group have decided that politics is more important than fairness!

I guess I should not be surprised at anything that goes on in politics these days, but I have to admit that I am a bit surprised the Senate continues to filibuster legitimate Judicial nominees from President Obama at an unprecedented rate. I should have taken Senator McConnell’s warning to heart when he suggested that it was his job number 1 to prevent Obama’s reelection in 2012.  “If Republicans are to enjoy a midterm triumph in 2010 as they did in 1994, McConnell said his party should say: “Those of you who helped make this a good day, you need to go out and help us finish the job.”  Asked what that “job” was, McConnell explained that “the single most important thing we want to achieve is for President Obama to be a one-term president.”  LA Times   Senator McConnell and his fellow Republicans in the Senate have done everything in their power to filibuster and prevent judicial nominations from President Obama from being confirmed by the Senate.  Earlier this week, the latest example of the misuse of the Filibuster was again on display.

The judicial nomination of Caitlin Halligan to the U.S. Court of Appeals for the D. C. Circuit was hijacked by a Republican filibuster and the attempt to get a vote on the floor of the Senate was blocked when Harry Reid brought the cloture motion to a vote.  The motion to move her nomination to a full vote received 54 votes, but not the 60 necessary to defeat the filibuster brought on by the Senate Republicans.  Aren’t there any members of that Gang of Fourteen still around to make sure that judicial nominees actually get a vote?  The answer is yes, but every former member of the Gang of Fourteen from the Republican Party who is still in the Senate,  voted against the cloture motion.

“But today, Graham voted against holding an up-or-down vote on Halligan’s confirmation, even though she had been unanimously rated well qualified by the American Bar Association, and had the broad support of law enforcement officials in New York State, where she served as solicitor general.  Graham and the three other Republican members of the “Gang of 14” who remain in the Senate, — Sens. John McCain, Susan Collins and Olympia Snowe — also voted to filibuster Goodwin Liu, another nominee whose credentials were widely praised as “sterling” and who had the support of legal leaders from across the ideological spectrum.”  ACS  I find it disturbing that when a Democratic President is in the White House, the Republicans in the Senate seem to forget fairness.  When the Gang of Fourteen was in its heyday, it allowed many Right leaning judges to be voted on and confirmed by the full Senate.

The former ethics lawyer for George W. Bush also thinks that this Republican obstructionism is out of hand. “In a recent ACS Issue Brief, “Extraordinary Circumstances: The Gang of 14 and a Proposal for Judicial Nominations Reform,” law professors Richard Painter and Michael Gerhardt explain senators’ betrayal of their 2005 agreement:  The Gang of 14 had hoped that their bipartisan compromise would facilitate judicial appointments and remove ideological differences as a ground of objection to a nomination as long as the nominee’s views were within the mainstream of American jurisprudence and he or she had sound character and no serious ethical lapses.  Instead, judicial filibusters, among other means of obstruction within the Senate, have been persistently directed at judicial nominees on the basis of speculation and distortion. These tactics have prevented the federal judiciary from operating at full strength, and have made the process of judicial selection unpredictable for everyone concerned, including the White House, the Senate, and the nominees.”  ACS

Even though Chief Justice Roberts himself has called for an end to the confirmation stalemate because the Federal Judiciary is struggling with an extreme vacancy problem, the Senate Republicans still refuse to stop their obstructionism. “Chief Justice John Roberts is blaming both parties for the political stalemate that’s prevented dozens of federal judicial nominees from filling their seats at the bench.  In his annual State of the Judiciary report, Roberts said the partisan bickering has led to “acute difficulties” in “critically overworked districts.” He urged policymakers to come up with a long-term solution to the perennial problem.  “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” Roberts wrote in the 12-page report.  ” ‘ This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads.” ‘  The Hill

It is interesting that Justice Roberts blames both parties when his party is responsible for the filibustering the very judicial nominees that he is calling for.  How do we solve this backlog problem and stop the filibusters?  The Democrats could insist on rule changes that would make it harder for any party to filibuster a Judicial nominee.  It has been suggested before that the rules should be changed to require that any Senator who wishes to filibuster a Judicial nominee, that the Senator must go to the floor of the Senate and do a real filibuster.  That’s right, make them stand up for hours to show the American public who is fighting this nominee and why.  Filibusters used to be done this way, but now all they have to do is inform the leader that he or she has a problem with the nominee and the 60 vote minimum takes over.  Our Democracy is based on majority rule, but a minority of Senators has stopped Judicial nominees at the drop of a hat.

It is time to call out the Senators who abuse this process.  Senators like Sen. Graham, Senator Coburn, Sen. McCain and Senator Snowe need to be know that the American public will understand and see what sleight of hand tricks they are playing in their efforts to obstruct the people’s business.  That also means the mainstream media must stop reporting these cloture votes incorrectly.  They all too often claim that the vote on the nominee failed or that it failed to obtain the necessary 60 votes.  A cloture vote is not an up or down vote by the whole Senate.  It is merely a vote to see if the Senate can garner the necessary 60 votes to defeat the Filibuster!  It is also time for Democratic and Independent Senators to do everything that they can to call out the names of each Senator who blocks a nominee from getting their up or down vote in the Senate. Publicly and repeatedly.

The whole world is watching and they don’t like what they see.  If the judicial nominee logjam does not end, it means delayed justice for all of us, Democrats and Republicans and Independents alike.  Of course, if your only goal is to defeat a specific administration, I guess Justice doesn’t matter to you.  How do you think the Senate should solve this problem?

If Republican Sen. Bill Heath’s bill, Senate Bill 293, is enacted the phrase “In God We Trust” will be printed in the area where the county name used to go. While many states sell, at an extra cost, specialty plate with the phrase, the Georgia plate will be the default plate.

A decal with the issuing county’s name may be purchased to cover the phrase “In God We Trust.” Currently, a $1 “In God We Trust” sticker can be purchased and placed over the county name. The new law reverses that procedure.

Any legal challenge to the phrase is unlikely to prevail.

In North Carolina, the Davidson County Government Center had the phrase “In God We Trust” inscribed on its facade. In the legal challenge, Lambeth v. Board of Commissioners, the United States Court of Appeals for the Fourth Circuit found no Establishment Clause violation:

We have heretofore characterized the phrase, “In God We Trust,” when used as the national motto on coins and currency, as a “patriotic and ceremonial motto” with “no theological or ritualistic impact.”

The Supreme Court denied cert, so the Fourth Circuit’s ruling stands.

The case of Aronow v. United States challenged the use of “In God We Trust” by the United States Government on its coinage, currency, claiming an Establishment Clause violation. The United States Court of Appeals for the Ninth Circuit sidestepped the District Court’s ruling that the plaintiff lacked standing and ruled on the merits of the case. The Ninth Circuit held:

It is quite obvious that the national motto and the slogan on coinage and currency “In God We Trust” has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.

Again, the Supreme Court denied cert, so the Ninth Circuit’s ruling stands.

However, for secular residents of Georgia there is an alternative. There are numerous specialty plates, at an extra fee, where the “In God We Trust” phrase is left off in favor of a slogan related to the cause being pushed.

Secularists should demand a plate with “E Pluribus Unum” on it. It would drive the secessionists crazier, assuming they understand what it means.

“In God We Trust” is a religious expression masquerading as a national motto. If you do not trust in God, then you’re not one of us.

H/T: Secular News Daily, Atlanta Journal-Constitution, Kent Jones, Austin Cline.

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A scent lineup starts with the collection of scent from a crime scene. Scent samples are also collected from potential suspects. A dog is presented with the crime scene scent and then presented with the scents from the suspects. The dog then communicates the matching scent to its handler. The dog handler then testifies at trial and his testimony has been presented as “scientific identification” in Texas courts.

One such handler is Deputy Keith Pikett of Fort Bend County, Texas. Pickett and his bloodhounds have worked about 2000 cases all around the country, and the Texas Attorney General’s office has recommended his work.

Police detectives would call in Pikett, tell him who they thought was the real suspect, and lo and behold, the scent lineup confirmed the detective’s suspicions. Prosecutors loved him, Pikett would use his dogs to “confirm” what they wanted to know.

According to a special report by the Innocence Project of Texas, Pikett testified that “he had a Bachelor of Science in Chemistry degree from Syracuse University and a Master’s degree in Chemistry from the University of Houston.” However, Pikett never received any degrees from either institution. He repeated the lie about having a master’s degree in chemistry in the case State v. Winston. In that case the Court of Appeals of Texas (14th District) cemented Pikett’s reputation as an expert in scent lineups.

The 2004 murder of Murray Burr rocked the small town of Coldspring, Texas. The local sheriff suspected the Winfrey family and Pikett was called in. Based on scent lineups, Megan Winfrey, then 16 years old, her brother Richard Winfrey Jr., and their father Richard Winfrey Sr. were arrested. Megan and Richard Sr., represented by state-appointed lawyers, were convicted on the basis of a scent lineup done three years after the crime.

At the San Jacinto County trial of Richard Jr., Dallas defense attorney Shirley Baccus-Lobel put on a masterful defense that devastated Pikett’s testimony and obtained a “not guilty” verdict, returned within thirteen minutes.

Baccus-Lobel then turned her attention to the appeal of the father’s case whose conviction had already be upheld by one appellate court. In a unanimous ruling, The Court of Criminal Appeals of Texas reversed the court of appeals and entered a judgement of acquittal for the father. The Court of Criminal Appeals found that scent lineups, standing alone, “is insufficient to establish a person’s guilt beyond a reasonable doubt.”

Megan, now 23, is currently serving the third year of a life sentence. The Court of Criminal Appeals has agreed to review her case.

Pikett, now retired, is facing numerous lawsuits and requests for his services have dried up. Ronald Curtis, who spent months in jail on scent lineup evidence, only to have the charges dropped, said “this man is a fraud.” Jeff Blackburn, general counsel for the Innocence Project of Texas, said “Pikett is not the problem. The problem is the DAs and police agencies who have used him.”

H/T: The Agitator, NY Times, Michael Hall, Houston Chronicle, The Southeast Texas Record, USA Today, Austin American-Statesman.

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I have stated publicly that I believe that Supreme Court would be best served by both Justice Clarence Thomas and Justice Elena Kagan recusing themselves from the health care decision. First, it is highly unlikely that Thomas will recuse himself. He has shown an indifference bordering on hostility toward recusal and reporting rules. As for Kagan, this case appears to have been contemplated by the Administration in selecting Kagan. In her testimony and that of the Attorney General, the Administration actively sought to exclude her from deliberations when she was still Solicitor General. However, selecting a sitting Solicitor General is always a risky business for this reason. Kagan has shown greater attention to recusal rules than Thomas in recusing herself of many cases. The exclusion of the health care care from that list raises obvious appearance problems. The prior anticipation of this problem only magnifies the problem on one level. Kagan looks like a pocket justice — someone selected from the President’s inner circle to guarantee a vote on his most important legislative matter. Yet, she appears intent on voting on the case given her prior participation in the case being accepted for review. Second, I believe the appearance problems for both justices undermines the integrity of the Court and the legitimacy of any final ruling in this historic case. They are responsible for those appearance problems and, in the interest of the Court as an institution, should recuse themselves in my view.

The rule itself leaves considerable room for Kagan and her colleagues to decline demands for recusal.

§ 455. DISQUALIFICATION OF JUSTICE, JUDGE, OR MAGISTRATE JUDGE
How Current is This?
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

Experts simply disagree on when impartiality can be reasonably questioned. I do not believe that the Tribe email is enough alone to require recusal as a direct conflict, though it leaves a significant appearance problem. There remains some question as to the involvement of Kagan as solicitor general in the decisions made concerning the health care law. The email suggest some involvement, but she (and the Attorney General) insist that she was walled off in anticipation of this problem.

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Vesselin Dittrich, 64 and speaks with an accent, is an American citizen and resident of Hoboken, New Jersey. He was sitting on a PATH (Port Authority) train in the Hoboken station looking at a heavily tattooed woman. She objected to his staring and asked him to move to another car. He refused. She threatened to call the police and, overhearing this, the conductor summoned the Port Authority police.

After an officer spoke with the woman, the officer informed Dittrich there would be no charges but requested identification. Dittrich did not want to give it. According to Dittrich, the officer told him he would be charged with obstruction. Dittrich gave his name and address. The officer then asked what country he was from. When he refused to answer claiming the question was irrelevant, the officer insisted, and he refused again. The officer then handcuffed Dittrich and took him to the police station where he was issued a summons.

The summons accuses him of disorderly conduct “by causing public inconvenience and annoyance and refusing to provide pedigree info.”

The implication is that either every member of the public was inconvenienced and annoyed, or the inconvenience and annoyance took place in public instead of in private.

Dittrich was offered a reduction to a municipal ordinance violation if he pleaded guilty, but he refused. Disorderly conduct carries a maximum penalty of six months in jail and a $1000 fine. At one hearing, the prosecutor told the judge he would like to see Dittrich spend time behind bars.

According to the ACLU:

Q: Do I have to answer questions asked by law enforcement officers?
A: No. You have the constitutional right to remain silent.

In the case of State v. Camillo, the Superior Court of New Jersey, Appellate Division, ruled:

In this appeal, the question presented is whether defendant’s refusal to provide his name, date of birth, and social security number to a state trooper who required the information to prepare an incident report constituted an obstruction of the administration of law pursuant to N.J.S.A. 2C:29-1a.   We conclude that under the facts of this case it did not, and consequently we reverse defendant’s March 24, 2004 conviction of that offense.

Clearly, Dittrich, who is acting as his own lawyer, was arrested for asserting his constitutional rights.

H/T: Hudson Reporter, NY Times.

As if anxiety over the common risks of surgery weren’t enough, a strange story from Florida points up the dangers of flash fires during routine procedures.  Kim Grice entered North Okaloosa Medical Center Outpatient Surgery Center  in Crestview, Fla. for simple surgery to remove cystic growths from her scalp. After about two hours of surgery, an ambulance pulled up to the clinic and emergency personnel rushed past Grice’s mother, Ann, to transport her 29-year-old daughter to the South Alabama Medical Center due to severe facial burns.

“I am in shock,” Ann Grice said. “This is not what happens with a routine outpatient surgery. She had headaches and the doctor was going to remove three cysts and biopsy them. But something went bad wrong and my daughter is now in a burn unit with burn specialists and I still don’t know what happened. No one will tell me why or how this happened to her.”

Health care experts estimate that 650 flash fires occur in operating rooms around the country every year.  Most patients are left with some scaring and smoke inhalation injuries, but some patients die.

Dr. David Cowles attributes the rise in this type of incident to a “trifecta” of circumstances. Oxygen, alcohol prep, and ignition sources like electro-cautery devices and lasers can combine to produce the disastrous results. The FDA has launched an initiative to prevent surgical fires which the government agency deems highly preventable.

As for Kim Grice, she is less concerned now about what happened than seeing her kids. “I am so ready to see my babies,” she told the local newspaper in a telephone interview Thursday from the South Alabama Medical Center’s burn unit. “But I don’t want them to see me this way.”

Kim may never know exactly what happened as some hospitals can make the legendary silence of the police about police negligence look positively gabby, but the law won’t protect the surgeons or the hospital. Under the common law of most states, prevailing  tort principles won’t tolerate a conspiracy of silence in cases like this.  Kim will likely be able to prove her case  under the doctrine of res ipsa loquitur.

The common law doctrine as applied here allows the jury to infer medical negligence even though a patient is unable to present evidence of just what occurred while under sedation. In Ybarra v. Spangard, 93 Cal.App2d 43 (1949), a patient undergoing an appendectomy  experienced arm and shoulder complications as a result of the surgery, but it could not be determined exactly which member of the surgical team had breached his or her duty. The Court held that the surgical team all breached, because it was certain that at least one of them was the only person who was in exclusive control of the instrumentality of harm. The doctrine only applies when the harm could not have occurred but for the negligence  of someone in the OR.  The Plaintiff must still prove that injury resulted and that the negligence complained of was the legal (lawyers would say the “proximate”) cause of the injury.

Source: msnbc

Mark Esposito, Guest Blogger

Some think  lawyers and judges to be serious folk and devoid of humor as they carry out the public’s business. Here’s some proof to the contrary from Gavel2Gavel.com taken from real case depositions and trial transcripts:

By the Court:  Is there any reason why you couldn’t serve as a juror in this case?

By a Potential Juror:  I don’t want to be away from my job that long.

The Court:  Can’t they do without you at work?

Potential Juror:  Yes, but I don’t want them to know that.

______________________________________________

By Attorney:  Have you ever heard of Sigmund Freud?

By Juror:  Yes.

Attorney:  What have you heard?

Juror:  He’s in Las Vegas.

By the Court:  I think you’re thinking of Siegfried & Roy, aren’t you?

Juror:  That’s what I’m doing.

Attorney:  This guy was a little older than that.

_____________________________________________

By Defendant:  Judge, I want you to appoint me another lawyer.

By the Court:  And why is that?

Defendant:  Because the Public Defender isn’t interested in my case.

The Court (addressing the public defender):  Do you have any comments on the defendant’s motion?

By the Public Defender:  I’m sorry, Your Honor. I wasn’t listening.

_____________________________________________

By Attorney:  What was the first thing your husband said to you when he woke that morning?

By Witness:  He said, “Where am I Cheryl?”

Attorney:  And why did that upset you?

Witness:  My name is Kathy.

____________________________________________

By Attorney:  Are you qualified to give a urine sample?

By Witness:  Yes, I have been since early childhood.

_____________________________________________

By Attorney:  So, you are unconscious, and they pulled you from the bucket. What happened then?

By Witness:  Mr. Stewart gave me artificial insemination — you know, mouth-to-mouth.

______________________________________________

By Attorney:  Doctor, as a result of your examination of the plaintiff, is the young lady pregnant?

By Witness:  The young lady is pregnant — but not as a result of my examination.

_______________________________________________

By Attorney:  Remember all your responses must be oral. OK? Now, what school do you go to?

By Witness:  Oral.

Attorney:  How old are you?

Witness:  Oral.

_______________________________________

By Attorney:  Is your appearance this morning pursuant to a deposition notice which I sent to your attorney?

By Witness:  No — this is how I usually dress when I go to work.

__________________________________________

By Attorney:  You say that the stairs went down to the basement?

By Witness:  Yes.

Attorney:  And these stairs — did they go up also?

__________________________________________

By the Prosecutor:  Did you kill the victim?

By the Defendant:  No, I did not.

Prosecutor:  Do you know what the penalties are for perjury?

Defendant:  Yes, I do. And they’re a hell of a lot better than the penalty for murder.

______________________________________________

The Absentee Witness.  In a criminal case, the defense counsel had just moved for continuance on the grounds that a defense witness was not present in court. The rest follows:

By the Court:  Well why don’t we call the list of witnesses and see who’s here?

[The list of witnesses was called in open court and the supposedly "absent" witness answered "Present"]

By the Defense Attorney:  Your Honor, I move for continuance on the grounds of surprise. He promised me he wouldn’t be here.

Source: Gavel2Gavel.com

~Mark Esposito, Guest Blogger

Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee, tried to pass an amendment that would have limited it to suspects captured “abroad” — a measure that still raised constitutional and international law problems. However, even that modest amendment failed on a vote of 45 to 55. Here is the voting roster, which includes Democrats Begich (D-AK), Casey (D-PA), Levin (D-MI), Inouye (D-HI), Landrieu (D-LA), Manchin (D-WV), McCaskill (D-MO), Pryor (D-AR), as well as independent Lieberman (ID-CT). A watered down amendment was then passed 99-1 that left the matter (it would appear) to the Administration. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.

Virtually all Democrats and Republicans voted to strip citizens of their rights in a vote of 93-7.

What is fascinating is the Senators insisted on passing the provision despite the fact that the Directors of the FBI and CIA, the secretary of defense, and the director of national intelligence have all opposed it on national security and legal grounds. Nevertheless, people like McCaskill who are running for reelection want to prove that they are tough on terrorism by stripping citizens to the right to basic due process rights. The fact that the Democratic and Republican Senators took this step without even holding a hearing is a testament to the state of civil liberties in the United States.

It is unclear whether the President will have the integrity and courage to carry through on this pledge to veto this pernicious bill. For civil libertarians, we have reached our Alamo moment where the most basic principles of the rule of law are at stake. The Congress has long been indifferent if not hostile to civil liberties, but as discussed in an earlier column (and here), civil liberties has reached one of the lowest ebbs in both politics and policy in this country’s history. Such measures are now met with a gigantic and collective shrug from an indifferent populace.

The national debate has become positively otherworldly for civil libertarians. As the Senate set about rolling back civil liberties, Administration lawyers — CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson — publicly explained to an audience this week that the decision whether to kill a U.S. citizens anywhere and anytime must be left solely to the discretion of the military and intelligence branches. President Obama has supported this view and claims the right to kill any citizen on his unilateral and unchecked executive authority. I discussed this horrific policy in a prior column (and here).

How did we come to this place? Well, it took the joint efforts of both parties and a country that has been lured into a dangerous passivity by years of war rhetoric. We now appear to define ourselves by our lifestyle rather than our rights. Being American appears to be treated as conclusory and self-evident — untethered to our defining principles. So in comes to this. The loss of the most basic right of citizens met not by applause but, even worse, a collective yawn.

Here is the Senate bill: BILLS-112s1867pcs

Source: Newser

We are up against two very popular sites: Ann Althouse and Volokh Conspiracy. Both are conservative legal sites and are highly regarded. The latter is a site founded by UCLA law professor Eugene Volokh and is run by 19 conservative law professors, including my colleague Orin Kerr. While I often disagree with their conclusions, I have always found it very substantive and thought-provoking. Ann Althouse is one of the oldest legal sites with a very large audience placing her in the top three most visited legal sites in the world — a remarkable achievement.

I must confess that maintaining this site and my day job does not leave me much time to visit other sites. However, this competition highlights the remarkable array of top sites available to readers, including those in the opinion category. Other categories include sites that I have always found insightful and provocative like Scotusblog, BLT, Simple Justice, How Appealing, Sentencing Law and Policy, and TaxLaw Prof. I recommend, however, that you look at the other sites — including many appearing for the first time.

Our blog is described as follows:

Maybe it’s our journalism bias, but we like when D.C.-based constitutional scholar Jonathan Turley opines on the news of the day and isn’t always satisfied with the version recounted in media reports. In February, he went straight to the source to tease out the sequence of events that cost an Indiana deputy attorney general his job. Of course, we also get a kick out of the occasional random, off-topic posts, especially the penguin videos he shared after his son Ben pointed them out.

Benjamin was thrilled by the reference to his penguin selection.

This is always a fun competition, win or lose. Last year, the competition turned ugly with a misinformation campaign by a regular from one of the other competing sites (again among the opinion blogs this year) that told pro-gun sites that I am a leading anti-gun advocate — and encouraged all gun owners to vote against our blog in defense of gun ownership. It spoiled an otherwise friendly contest among blogs. All blogs should be rightfully proud of their accomplishments and common purpose — and intense loyalty of their regulars contributors.

Good luck to all of the blogs this year and thank you ABA Journal. Now go and vote!

Of course, weight loss is not one of Miller’s functions as a judge. However, such sentences are rarely about justice as opposed to the jurist. She insists, however, “I do what I do to try to change the person in front of me.” Thus, she views the criminal code as her license for self-improvement lessons — while being filmed for a larger audience. While such efforts may appear harmless, it reflects a trend that is undermining the integrity of our legal system as more and more judges yield to the temptation of television fame. These judges use defendants as effective props in their own entertainment production. In this case, Miller has found a way of merging “The Biggest Loser” with “Judge Judy.”

Source: Yahoo

Submitted by: Mike Spindell, guest blogger

America has the world’s highest rate of incarceration, currently 738 per 100,000. Our nearest competitor for this dubious distinction is the Russian Federation with 607 and Cuba with 487. “The US incarcerates at a rate 4 to 7 times higher than other western nations such as the United Kingdom, France, Italy, and Germany and up to 32 times higher than nations with the lowest rates such as Nepal, Nigeria, and India.”

 http://www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration.pdf                                                                                                                                           Despite possible protestations that this is because we have the best law enforcement, my sense is that the reasons lie more in the system, than those who enforce it. No one ever lost an election in America because of the perception they “were tough on crime”.

“Race: Black males continue to be incarcerated at an extraordinary rate. Black males make up 35.4 percent of the jail and prison population — even though they make up less than 10 percent of the overall U.S population. Four percent of U.S. black males were in jail or prison last year, compared to 1.7 percent of Hispanic males and .7 percent of white males. In other words, black males were locked up at almost six times the rate of their white counterparts.”        http://www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration.pdf

Despite possible protestations that this is because we have the best law enforcement, my sense is that the reasons lie more in the system, than those who enforce it. No one ever lost an election in America because of the perception they “were tough on crime”. “Race: Black males continue to be incarcerated at an extraordinary rate. Black males make up 35.4 percent of the jail and prison population — even though they make up less than 10 percent of the overall U.S population. Four percent of U.S. black males were in jail or prison last year, compared to 1.7 percent of Hispanic males and .7 percent of white males. In other words, black males were locked up at almost six times the rate of their white counterparts.”      

http://www.laprogressive.com/law-and-the-justice-system/boiling-hot-mad/.html

These two sets of statistics when viewed together tell a terrible tale of how racial oppression still exists in this country despite our Black President and Black Attorney General. This Administration hasn’t caused of this problem, but they  don’t seem to have made any progress dealing with it. We do know that there has been a widespread effort to play down the racial division that continues to plague this country. This continues despite Civil Rights Laws, Martin Luther King’s Birthday and TV beer commercials that always include at least one black male friend enjoying the camaraderie. Clearly there is a disconnect between how we Americans want to see ourselves and the reality for many Black males. I’m focusing on the problem of black males in this piece, rather than the general oppression of Black people, because the effect of this process is a function of the general racist climate of this country and is a major contributor to the continuance of this oppression. There have often been discussions on this blog about the devastating effects of the “War on Drugs” and this quote is illustrative of the tenor of theses discussions. “Nationwide, black males convicted of drug felonies in state courts are sentenced to prison 52 percent of the time, while white males are sentenced to prison only 34 percent of the time. The ratio for women is similar – 41 percent of black female felony drug offenders are sentenced to  prison, as compared to 24 percent of white females. With respect to violent offenses, 74 percent of  black male convicted felons serve prison time, as opposed to only 60 percent of white male convicted felons. With respect to all felonies, 58 percent of black male convicted felons, as opposed to 45 percent of white men, serve prison sentences”.                                                                                                                                                                                    http://www.civilrights.org/publications/justice-on-trial sentencing.html                                                                     

It is clear to me that racism exists today in America, despite supposed gains and that this disparity in the treatment of race is not only devastating to Black people, but its continuance is disastrous for our entire society. The degeneration of our political system during the last five decades may not be solely due to racial prejudice, but those who have helped bring it about certainly have used racism to empower their viewpoints, even as their rhetoric has shifted from overt to covert. I’m moved to write this because I believe that unless this problem becomes accepted in our public consciousness, there will be no escape from the downward trend of our nation towards political and economic disaster.

I’ve presented enough evidence of the racialist tendency of our system and the reader either will accept what it suggests, or substitute their own pre-judgments of what these statistics mean. My discussion focuses on how this reality impacts upon Black people in America and thus impacts us all, despite our race and/or ethnicity. What set me off thinking about this was a TV Program called “Our America” with Lisa Ling. The episode was entitled “The Incarceration Generation”.      http://www.oprah.com/own-our-america-lisa-ling/our-america-video.html

Personally, this episode brought up an admixture of tears and anger as I watched. It showed the life arcs of some Black males about to be released from prison, the effects on their families of their incarceration and then by their release. The premise, which I endorse, is that this generation of jailed Black men will, and has already impacted on the coming generation of Black men. The message was we must somehow stop this cycle, but the solution to stopping the cycle is not clear macro-cosmically and too slow if change is measured person by person.

As much as I’m prone to pontification, I really can see only one way that this continued racism is ever going to change. To the possible delight of our more conservative and/or libertarian commenter’s, I don’t believe that the first step towards this change would benefit from government intervention via legislation or fiat. While the original issue decided in “Brown vs. Board of Education“, that Blacks and Whites were receiving unequal schooling due to segregation and unequal funding, the general judicial remedy which became School Busing was not only in hindsight a failure, but actually increased tension between races and diminished White support for Civil Rights. It was a decision that tried to solve the problem cheaply, rather than first ensuring that the funding for Black and White (indeed all) schoolchildren was equivalent. How much more elegant to have hoisted the segregationists on their own petard of “separate but equal”, than to have demanded and overseen that they indeed provided equal funding

and support to Black schools. I understand that this was not the remedy being requested in this suit, but looking back it might have been a far more effective strategy. All of the gains in White sympathy for the struggle of Black people for their Constitutional freedom, were negated when the sad results of hundreds of years of slavery was dumped upon the educational systems specifically of the working classes. It resulted in the “Southern Strategy” that got Richard Nixon elected, using code words in place of outright racist rhetoric. Fighting crime became the code for cracking down on Blacks and the upward spiral of the incarceration of Americans began with the inception of the ridiculous “War on Drugs”. When people are steeped in false, bigoted notions of the “other”,  reinforced by a corporate media that finds sensationalizing crime garners profits, minds won’t be changed by legislation.

Certainly, steps must be taken to end the “War on Drugs”, to deal with racist law enforcement issues and to ensure that each American, regardless of skin color and/or ethnicity, is afforded equal rights under our Constitution. But first, before any palliatives are presented by our politicians, the problem of America’s continuing racism and its disproportionate effect on Black males must be brought into the open, discussed and hopefully acknowledged. Without that nothing changes since racism cannot be obliterated by enforcement, it merely morphs underground where it nevertheless festers. It is preferable to directly know ones’ enemies by their words, than to have those beliefs covered up.

Among the great ironies of modern America is how bigots have learned to couch their bigotry in terms that are inherently dishonest, yet provide them verbal cover when challenged. At times, among the less controlled public voices like Limbaugh or Beck it, their bigotry comes through, but even then they will cry foul if they are called on it and pretend that charging them with bigotry is absurd and bigoted in itself. When people are accused of “playing the race card”, the accuser is probably racist, knowingly or unknowingly. I think that many refuse to personally acknowledge their own bigotry, knowing rationally it is wrong, yet they find comfort and cover in the hypocrisy of code words and denial, from even themselves.

The other effect of incarceration of Black men disproportionately, is that it then becomes extremely difficult to obtain jobs after their release. As one man put it on the Lisa Ling show “Would you hire a former felon?”. We’ve set up a system where recidivism is the norm for all prisoners and this is mainly because after serving ones sentence, there are far less opportunities to find gainful employment. I know this from personal experience since my father served time for a “white collar” crime before my birth and his whole working/economic life was affected until his death 20 years later. He was White, had a massive vocabulary and a dynamic personality. He could never get credit and a family member had to co-sign in order to get a mortgage for our house. My father earned a good living as a car salesman, but his many attempts at starting his own business was affected by an inability to obtain adequate financing due to his prior incarceration. My father had many advantages over many black men with criminal histories, but the primary one was his skin color

When you perpetuate a system that incarcerates such a large swath of the Black male population, sentences them disproportionately to other racial/ethnic groups and prevents them from going straight after they’ve served their time, you create instability and chaos within the Black community. The evil history of slavery and racism remains with us today. Until we acknowledge the reality of how it perpetuates itself, it will never cease and our country will continue its’ downward spiral of economic disparity and debilitating racial/ethnic tension.

Henry F. Schuelke III believes that it is necessary for Justice officials to be formally ordered to act in a lawful and ethical matter for there to be a basis for criminal contempt. He basically blames Sullivan for never explicitly demanding that the government comply with legal and ethical rules in turning over exculpatory evidence in the political corruption case. Judge Sullivan offered a rather obvious, and one would think sufficient, reason for not issuing such an order: “Because the court accepted the prosecutors’ repeated assertions that they were complying with their obligations and proceeding in good faith, the court did not issue a clear and unequivocal order directing the attorneys to follow the law.” I have been laboring under the same illusion that we were all subject to legal and ethical rule without a formal order from the court. While there is certainly room to debate whether criminal sanctions should apply, this is a rather shocking reason.

Criminal contempt charges against the prosecutors were not called for, Schuelke found, because Sullivan never explicitly demanded, in a court order, that the government comply with their legal and ethical obligations concerning the revelation of exculpatory evidence to those defending the Republican senator from Alaska in the political corruption case.

“Because the court accepted the prosecutors’ repeated assertions that they were complying with their obligations and proceeding in good faith, the court did not issue a clear and unequivocal order directing the attorneys to follow the law,” Sullivan wrote, explaining his rationale for not explicitly ordering the government to provide exculpatory evidence to the defense.

Schuelke a former Justice official who served for seven years as an Assistant United States Attorney for the District of Columbia, including three years as Executive Assistant United States Attorney.

The report will be made public after the Justice Department reviews it. However, the premise of the report is an outrage and should shock the conscience of every lawyer. It would suggest that Justice Department lawyers can act in flagrant violation of ethical and legal rules absent an order directed at them by the court and that courts must now issue such orders to every attorney if they want to enforce basic rules of practice and ethics.

So, these lawyers will not be held in contempt despite the finding (as detailed in the order below) that the investigation showed a case “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

The criminal conduct provision does not speak to such requirements:

TITLE 18. CRIMES AND CRIMINAL PROCEDURE

18 USCS § 401

§ 401. Power of court

A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as–
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

In Cooke v. United States, 267 U.S. 517, 534 (1925), the Supreme Court reviewed a criminal contempt sanction for a lawyer who sent a “contemptuous” letter to a federal district judge. The Court affirmed the power of the courts to summarily find an individual guilty of criminal contempt if the misconduct at issue occurs “directly under the eye or within the view of the court” where the court may proceed “upon its own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the motives of the offender.” Otherwise, the Court mandated that due process rights were required for a full hearing on the basis for the charge. Here, the investigation appears to confirm the knowing concealment of evidence from both the defendant and the Court. Thus, recently a criminal contempt sanction against a private attorney was upheld for simply using a vulgarity in court, but the systemic concealment of evidence to deprive a person of his rights is viewed as outside the rules unless they are ordered to act ethically. See In Re Sealed Case, 627 F.3d 1235 (D.C. Cir. 2010).

For the record, I am co-lead counsel in the World Bank case (Chang) which involves allegation of the concealment and destruction of evidence by the District of Columbia.

Here is the order: sullivanordernov21

Source: ABA Journal