Sen. Bernie Sanders asked the National Security Agency (NSA) a question that one would have thought would be easy to answer: has the NSA spied on Congress with its massive surveillance programs? The answer that came back was chilling in what it did not say. The NSA would only assure Sanders that it has “the same privacy protections as all U.S. persons.” That must be a bit unnerving for Congress since it has allowed the NSA to strip citizens of the most basic privacy protections.
Archive for the ‘Courts’ Category
By Mark Esposito, Guest Blogger
This is the second of a multi-part article on the Public Interest Defense and its application to the the Edward Snowden situation. The defense is not recognized in America but other nations have considered this legal mechanism to provide an appropriate way to deflect criminal charges from whistleblowers like Snowden. You can read the first installment of the series here.
The Trial of Publius Horatius
When last we met Publius Horatius, soldier of Rome, he had saved the Eternal City from disaster in an epic battle of champions and then was quite ceremoniously convicted of treason against the state for the murder of his sister thus preventing the Senate from dealing with her traitorous grief over one of the fallen foe of Rome. In a clever legal maneuver made at the secret behest of the Roman king, Tullus Hostilius, who distrusted the designs of the Senate in passing him this hot potato of a case, Publius invoked the ancient right of every Roman citizen to a provocatio ad populum – a direct appeal to the people of Rome. Readers of the Christian Bible will likely recall that Paul of Tarsus was likewise accorded this right by virtue of his Roman citizenship, though by this time Rome had moved from a republic to an empire and the appeal was made to Cæsar himself.#
Below is my column in Al Jazeera on the expansion of presidential powers in the United States. While there is growing recognition of the threat posed by the current powers exercised by the White House, it is important to keep the issue before the public if we are going to realign the tripartite system back to its original balance between the balances.
New DUI Program Requires Mandatory Daily Monitoring: Protection For The Public Or Undue Burden On Offenders?
Posted in Courts, Criminal law, Justice, Society, tagged Alcohol Offenses, Courts, DUI, DUI Defense, Home Monitoring, Ignition Interlock, Traffic Law, Washington Courts, WASPC on 1, January 5, 2014 | 39 Comments »
Submitted by Darren Smith, Guest Blogger
A pilot program has been initiated in four Washington counties and two municipalities. Essentially the program requires those convicted of a second DUI offense are required to 24/7 daily monitoring consisting of a twice daily visit to a jail for a breath test or an ankle monitor capable of reading breath samples. Both options are mandated at cost to the offender. A newly created state law, effective January first, provides for this program named the 24/7 Sobriety Program Pilot Project.
The program is the result of repeat DUI offenders who have posed significant risk to the public and have shown to not be easily deterred from future violations by present statutes and sentencing. Yet some may question the effectiveness of the program and whether it places an undue burden on offenders who might not have the means to comply.
Submitted by Darren Smith, Guest Blogger
The City of SeaTac Washington enacted a proposition narrowly approved by voters (77 vote margin among approximately 6,000 total votes) that would, among other issues, raise the minimum wage of hospitality and transportation workers to $15.00 per hour; one of the highest in the United States. The minimum wage for Washington State is $9.32 and the highest among all fifty states. Supporters of the proposition argued the cost of living for those workers is forcing them to live in substandard lifestyles given their working environment and lack of benefits provided in these industries. Opponents argue the law would put an unnecessary burden upon business and force cuts in employees and a disincentive to operate within the city. Much controversy has been generated on all sides.
By Mark Esposito, Guest Blogger
This is the first of a multi-part article on the Public Interest Defense and its application to the the Edward Snowden situation. The defense is not recognized in America but other nations have considered this legal mechanism to provide an appropriate way to deflect criminal charges from whistleblowers like Snowden. Part 2 can be found here.
The Legend of Publius Horatius
For centuries, children in ancient Rome would recount the legend of Publius Horatius, one of three Horatius brothers (known as the Horatii), who fought to defend Rome from attack by the militaristic and close-by Italian city-state of Alba Longa. Rather than engage in a pitched battle of armies for supremacy of the peninsula and subject all of Latinium (as Italy was then known) to the vulnerability of foreign attack, Rome and her rival opted to name a triumvirate of champions to fight to the death to decide the fates of two ancient megalopolises. One would emerge as the dominating power and the other would be relegated to a vassal state. The Horatii seemed the obvious choice among the Roman legionnaires as the triplet brothers were unequaled among their peers in strength and martial prowess. Swearing an oath to fight to the death, the brothers strode to the Field of Mars to battle for both the glory and survival of Rome. For her part, Alba Longa chose her own incredibly coincident set of warrior triplets known as the Curiatius brothers (or the Curiatii) who swore an equally obligating oath to “return either with their shields or on them” as a Spartan might say.
Not since John Ashcroft was beaten by a dead man, Mel Carnahan, in the Missouri Senate race has a more curious victor emerged in a competition. (Our own blog took the top News/Analysis Spot) Judge Richard Kopf of the United States District Court for the District of Nebraska was declared with winner of the “Courts” category in the ABA Journal competition of the top 100 legal blogs. The problem is that only a couple days before, after national criticism regarding his blog, Judge Kopf discontinued “Hercules and The Umpire.”
Posted in Academics, Constitutional Law, Courts, Criminal law, Environment, Free Speech, International, Justice, Lawyering, Media, Military, Politics, Religion, Science, Society, Supreme Court on 1, January 3, 2014 | 30 Comments »
Well, the results are in and we have another distinction to crow about at the blog. We have been selected as the 2013 top News/Analysis site among the competing world blogs in the annual ABA Journal survey. The success of this blog is due entirely to our unique community around the world, which have maintained a site where the issues of our day can be discussed with passion but civility. Thanks to all of our regulars and particularly our our talented and popular weekend team of guest bloggers: Mike Appleton, David Drumm, Mark Esposito, Gene Howington, Elaine Magliaro, Larry Rafferty, Darren Smith, Mike Spindell, and Charlton Stanley. While we created and maintain this site to allow us to share our thoughts, it is always gratifying to receive such recognitions. It is always my hope that the selection will bring new people to our site to further expand the voices and views on legal, political, and sometimes just plain bizarre stories.
Many of us stayed up to midnight last night and watched the ball come down in Times Square. If you were still sober enough to notice, the person triggering the dissent was none other than Associate Justice Sonia Sotomayor. It turns out that that was not the only thing that she was doing on New Year’s Eve. Late Tuesday with only hours to go before January 1st — and the activation of the Affordable Care Act (ACA) — Sotomayor granted a stay requested by Catholic-affiliated groups to prevent the implementation of part of the ACA to require them to supply contraceptive services to employees in violation of their religious beliefs. The decision follows a refusal of the United States Court of Appeals for the Tenth Circuit to issue a stay. The stay order by Sotomayor was requested from Catholic nuns running the Little Sisters of the Poor Home for the Aged in Denver and now joins a stay issued earlier by the United States Court of Appeals for the District of Columbia.
Nevada Suspended Family Court Judge Steven Jones has been found guilty of unethical conduct in his romantic relationship with former Deputy District Attorney Lisa Willardson. Willardson appeared before Jones. Jones was also accused of retaliating against two deputy district attorneys who helped expose his relationship but that charge was not proven.
Respectfully submitted by Lawrence E. Rafferty(rafflaw)-Guest Blogger
With the end of 2013 fast approaching, I have begun to wonder what the New Year holds for the country. It looks like the Affordable Care Act is finally getting its website to function properly and the sign ups are now being counted in the millions. Wall Street is still booming with the Dow Jones over 16,000, but yet unemployment is still too high and Congress is still trying to push austerity for the middle class and the poor, while doing everything in its power to prevent corporations and the wealthy from paying their fair share of taxes. The Citizen’s United decision opened the money floodgates and needs to be curbed. The military budget was spared in the recent Budget Deal, but yet unemployment benefits for millions have not been extended.
The gun lobby continues to prevent reasonable gun control legislation and needless scores of innocents continue to be slaughtered. Instead of closing the gun show loophole or mandating reasonable and effective universal background checks, Congress did nothing. Although there has been some recent movement from the Obama Administration to push Congress to allow the closing of the prison at Guantanamo Bay, the facility remains open after 12 years. With all of the bad news or non-action on many fronts, is it possible to have hope that 2014 will bring better news for all Americans? (more…)
Posted in Congress, Constitutional Law, Courts, Criminal law, Free Speech, International, Justice, Media, Military, Politics, Society, Supreme Court, Uncategorized on 1, December 28, 2013 | 41 Comments »
Submitted By: Mike Spindell, Guest Blogger
I’ve written before about the fact that the murder of JFK in Dallas was to me the most traumatic national experience in my life and the fact that I think it changed the destiny of our country in a negative fashion. I think that for many around my age this is also true, but it is now fifty years past and the majority of Americans have no real knowledge of it. The trauma of that day and the ensuing events of history have left me with an admittedly irrational repugnance towards the city of Dallas and I feel almost a shudder when I hear of Dealey Plaza, where the murder took place. These feelings are so intense that I doubt that I will ever visit Dallas in my lifetime, much less go to Dealey Plaza. When I got my weekly E Mail from my favorite investigative journalism website WhoWhatWhy.com I took note of an article about the Sixth Floor Museum at Dealey Plaza. The article was a humorous look at the potential for Christmas gifts that might be available at the museum’s gift shop and of course provided a link to the museum’s website, which I then followed. Going to the website and perusing it caused me to muse about the ability in our country to turn even our most solemn national events into commercial enterprises, while we pretend that they provide an educational service. (more…)
Incoming Utah Attorney General Sean Reyes has announced that his office intends to appeal the ruling striking down the criminalization of cohabitation in the Sister Wives case. The decision will ultimately send the case to the United States Court of Appeals for the Tenth Circuit in Denver, Colorado. However, the trial court has not yet issued a final order due to a couple outstanding issues. Once that order is issued, the Attorney General’s office will have 30 days to file a notice of appeal. In a surprising decision, the Attorney General also indicated that he will no longer have his office defend the Utah ban on same-sex marriage (struck down by Judge Robert Shelby) and possibly the cohabitation law (struck down by Judge Clark Waddoups). That will require the hiring of outside counsel and an outside firm to defend these laws as opposed to the Office of the Attorney General itself.
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
We have all heard the political arguments for and against an Estate Tax, or as some have called it, a Death Tax. Over the years while I attended several Continuing Legal Education seminars and Trust School presentations, I have often learned about the estate and gift tax avoidance strategy called a Grantor Retained Annuity Trust, or GRAT. Since these estate reduction strategies are best used with very large estates, I have rarely had the opportunity to recommend it to any of my clients or trust customers. Recently, I read an article that provided some documentation just how prominent and popular the GRATS are with the super wealthy.
Just what is a GRAT and why should any of us be concerned with its use? In my opinion, it is important to understand that when the über wealthy complain about any tweaking of the estate tax, most of them pay little or no estate or gift taxes due to the use of techniques like the GRAT. Just how does a GRAT work?
Simply put, the donor transfers money or stock into a trust and if the assets increase in value, any increase in the stocks beyond the principal and the minimum interest rate that must be paid back to the donor, goes directly to the beneficiaries tax-free. When you are talking assets worth millions and in some cases, billions, huge sums of money can escape the estate and gift tax process entirely. (more…)
Below is my column in the Washington Post (Sunday) on our recent victory in the Sister Wives case. The column looks at the most significant aspect of the case — the rejection of morality codes that once controlled across the country in prohibiting everything from homosexuality to adultery to fornication. These morality laws were upheld in the decision in Reynolds in 1876 in a polygamy case out of Utah. The Brown decision returned us to the same question involving the same issue in the same state. Some 136 years later however the answer from this federal court was very different. We are a different country today and, despite what one hears from politicians like Rick Santorum, I believe that we are a better country today.
There does seem to be confusion about the ruling with some saying that polygamy is still not legal after the opinion. That is simply wrong. Polygamy is not the same a bigamy. One is the crime defined under cohabitation statutes of living as a plural family or with a person married to another person. The other is the crime of having two or more marriage licenses. The latter has nothing to do with the structure of your family and has almost exclusively involved people who hold themselves out (falsely) as monogamous. We always argued that the state could prosecute people who obtained more than one marriage license. Bigamy has not been an offense committed by polygamists who traditionally have one official marriage license and multiple spiritual licenses. Indeed, the law targeted polygamy with the cohabitation provision precisely because there is a difference between the two. The state fought for years to preserve this law because it reached beyond simple bigamy. Before this opinion, it was a crime for polygamists to live, as do the Browns, in a plural family. After the opinion, it is legal. This is precisely what occurred in Lawrence v. Texas where homosexual unions were a crime but then became legal when the Texas law was struck down. This decision legalizes tens of thousands of polygamous families who will no longer been viewed as criminal enterprises. They will be allowed to be open plural families. They are now legal relationships. Legality of polygamy is entirely different from recognition of plural marriages just as the legality of homosexual relations is different from the recognition of same-sex marriage.
There is also a lack of knowledge about the existence of such laws outside of Utah. This law does exist outside of Utah. Indeed, the very same language is found in the Canadian cohabitation law. I was called as a legal expert in the recent challenge to that law. However, the Canadian Supreme Court in British Columbia upheld the law. Putting these distinctions aside, the thrust of this article is how this decision is part of a larger trend toward the repeal or the striking down of morality codes, including the rejection of a cohabitation law in Virginia this year.
Submitted by Darren Smith, Guest Blogger
If allegations are proven it would reveal a shocking and systemic dereliction of duty of Washington’s Child Protective Services to investigate and properly respond to multiple reports of abuse and neglect lasting many years of a family of children. The abuses ranged from mental and verbal abuse to felony assaults against a child.
In March of 2013 the children’s parents Sandra and Jeff Weller of Vancouver were each sentenced to twenty years in prison after having been convicted of fourteen counts of child abuse; double the statutory determinate maximum sentence. Clark County Superior Court Judge Barbara Johnson levied the exceptional sentence due to the severity of the crimes.
The claim against the state on behalf of five children alleges nearly ten years of abuse of the children by the parents where little to no action was taken by Child Protective Services to address the issues and protect the children from further crimes by the parents.
Below is my column in USA Today on the NSA proposed reforms. I do believe that there are many worthy suggestions among the 46 recommendations, particularly the amending of Section 215 of the Patriot Act. However, what is missing is any true reform in ending this massive surveillance program since the White House panel started with the presumption that it was lawful. What remains are interesting but largely collateral changes. This includes a worthy proposal of adding an advocate to the FISA secret court. However, the panel does not (as with the program itself) seriously consider the need or the questionable legality of the secret court. Indeed, by tinkering around the edges of the program, the task force would effectively legitimize the program for the future. It will become the new normal in the President’s vision of a surveillance-friendly model of privacy.
The task force does call for serious changes in clearance rules however to avoid future disclosures of the abuses revealed by Edward Snowden. What is lacking is one measure that would go far in showing good faith by this President after years of rolling back on privacy: a pardon for Edward Snowden. Such pardons are not given because the subject is innocent or that a president agrees with his actions. They are granted in the totality of circumstances that mitigate the crime, including the disclosure of abuses that were long ignored, if not supported, by both the White House and Congress. A pardon can be legitimately conditioned on certain measures such as the return of undisclosed documents (which is a massive amount of files) and the signing of a non-disclosure agreement to allow prosecution for future disclosures. That would prevent further damage with disclosures, as suggested by at least on ranking intelligence official. I do not take violations of classification laws lightly and I understand the anger of many officials. However, the current standoff is not just undermining the credibility of the Administration but also doing little to limit further damage. I do not believe that Snowden is using the document to force such a pardon which remains unlikely. However, it is time to consider it. Despite the President’s understandable opposition to his method for raising the abuses, the Snowden disclosures have caused a comprehensive and international reexamination of surveillance rules, including new international measures to protect privacy. Perhaps it may be time to stop hunting the man and focus exclusively on the abuses that he disclosed. The column below is unfortunately limited in space, but it tries to raise some of these issues.
Respectfully submitted by Lawrence E. Rafferty-(Guest Blogger)
The main stream media was full of stories in the last week concerning a judge’s decision in Michigan to allow the Bankruptcy of Detroit to go forward. What the media seems to have omitted from the discussion, is just how pensions in Detroit and across the country have come under attack.
“Now that a federal judge, Steven Rhodes, has ruled that the bankruptcy can proceed, a central issue will be whether the city can jettison up to $3.5 billion in accrued pension benefits owed city workers (which Orr claims are unfunded). With accrued state and municipal pension benefits protected by the Michigan constitution, Judge Rhodes’ ruling sets a chilling precedent for future municipal bankruptcies.” Truth-out (more…)
A family of three from Marshfield, Massachusetts, could face criminal charges. Their crime? Harassing duck hunters. Police Chief Phil Tavares said his department is seeking a clerk magistrate hearing in order “to determine whether there is probable cause to charge the family members with three counts of hunter interference and two counts of threatening to commit a crime.”
Julie Carreiro said that her family was awakened very early one October morning this fall by the sound of gunfire. She, her husband, and their son ran outside. They found hunters on conservation land that abuts their property. The hunters reportedly told police that the Carreiros had threatened them with physical harm if they didn’t leave. Chief Tavares said, “Members of the family began to use air horns to possibly attempt to scare away the water fowl, which is interference with a hunter.”
Posted in Courts, Criminal law, Justice, Society, tagged Breanna Mitchell, Brian Jennings, Ethan Couch, Hollie Boyles, Injustice, Oligarchy, Plutarchy, Shelby Boyles on 1, December 15, 2013 | 147 Comments »
UPDATED: The recent case of Ethan Couch, 16, out of Burleson, Texas has been previously addressed on this blog (here and here) in general terms of the fundamental unfairness and apparent bias of the plea deal and in psychological terms concerning both the social isolation wealth can engender and the consequent lack of empathy that creates. Let’s look at this in a little more detail as relates to justice and the corrosive effect such rulings have on social order. The pattern of facts in this case are critical to examining whether or not Couch’s sentence was just and inform whether or not such rulings are corrosive to society as a whole. To summarize:
Hollie Boyles, 52, Shelby Boyles, 21, Brian Jennings, 41, and Breanna Mitchell, 24, are the primary victims.
Just before midnight on June 15, 2013, Mitchell was driving west on Burleson-Retta Road when she had a blowout, forcing her pickup truck into a roadside ditch. Living nearby, Hollie and Shelby Boyles heard the blowout and went to render assistance. Jennings, a Burleson youth minister, was returning from his son’s high school graduation party when he stopped to assist Mitchell as well. All four were on the roadside when they were struck by a pickup truck driven by Ethan Couch. The Ford F-350 pickup was going between 65 and 70 miles per hour in a 40 mile per hour speed zone when it clipped Mitchell’s stranded truck before striking and killing the four bystanders. Couch’s truck then struck Jenning’s pickup truck (in which two young boys were waiting) sending it back into the roadway. There it collided with an eastbound Volkswagon carrying two Burleson girls before going off the south side of the road. Couch’s truck then flipped over, coming to rest against a tree on the north side of the road. Two other teenagers riding in the bed of Couch’s truck were thrown from the vehicle. One suffered broken bones and internal injuries. The other suffered a traumatic brain injury that left them unable to move or talk.
Posted in Congress, Constitutional Law, Courts, Environment, Free Speech, International, Justice, Media, Military, Politics, Religion, Society, Supreme Court, Uncategorized on 1, December 14, 2013 | 625 Comments »
Submitted By: Mike Spindell, Guest Blogger
I believe that it is impossible to deal with any problem until one understands the underlying nature of that problem. The analogy of a Physician treating the symptoms of a patient, but ignoring the cause of those symptoms, comes to mind. We have the medicine to deal with the specific manifestation of an illness like a headache and a fever, but in ameliorating the discomfort of the symptoms, we may miss the underlying pathology. This happened to me last March when shortly after being prescribed a change in the anti-rejection medicines that keep me alive after my heart transplant, I began to get so sick that I needed hospitalization in intensive care. I won’t bore you with the grimy details of this sudden downturn in health, but I must note that my most important bodily functions began to shut down. What is curious about this incident is that my wife, who is internet savvy, immediately began to suggest to my Doctors that I was having a bad reaction to the medicinal change. At first they ignored her as they had Department Heads in Cardiology, Immunology, Infectious Diseases, Neurology, Proctology, Urology and even Dermatology come in to examine me and pore over my medical charts. Finally, in response to my wife’s unfailing advocacy, they returned me to my prior anti-rejection medication. To my Physician’s surprise and possible chagrin the symptoms almost immediately began to abate and within in days I was home from the hospital and on the mend. (more…)
It is with a great pleasure this evening to announce that decision of United States District Court judge Clarke Waddoups striking down key portions of the Utah polygamy law as unconstitutional. The Brown family and counsel have spent years in both the criminal phase of this case and then our challenge to the law itself in federal court. Despite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country. As I have previously written, plural families present the same privacy and due process concerns faced by gay and lesbian community over criminalization. With this decision, families like the Browns can now be both plural and legal in the state of Utah. The Court struck down the provision as violating both the free exercise clause of the first amendment as well as the due process clause. The court specifically struck down language criminalizing cohabitation — the provision that is used to prosecute polygamists. The opinion is over 90 pages and constitutes a major constitutional ruling in protection of individual rights.
We have been discussing the alarming erosion of free speech principles in England in recent years. This trend includes both humorous and political speech. Now a sandwich shop owner has been arrested, his computer seized, and questioned for hours because he merely made a joke about Nelson Mandela. Neil Phillips, 44, was not charged but the message clear: even jokes are now subject to criminal investigation if deemed insulting by the police or sensitive public members.
I have long been a fan of the opinions of Chief Judge Alex Kozinski. While we disagree on many cases, Kozinksi often defies predictions and more ideological colleagues in ruling against the government. Chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals and considered a leading libertarian, Kozinski often rules in favor of individual rights — making him a refreshing voice on the federal courts which tend not only to be highly conservative on police powers but also populated by a disproportionate number of former prosecutors. Kozinski’s dissenting opinion this week in the case of Kenneth Olsen continues that legacy and further puts the bias of the federal court in favor of prosecutors into sharp relief. Kozinski opposed the denial of an en banc rehearing with four of this colleagues in the case of Kenneth Olsen, whose trial was marked by prosecutorial abuse. Kozinski began his decision with the chilling but true observation that “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” They didn’t. The court voted overwhelmingly to deny a rehearing in United States v. Olsen,
704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. For those who have been objecting to the expansion and abuse of police powers, it is important to remember that these abuses only continue because federal judges turn a blind eye to them.
Yesterday, we discussed a case of a former law student who got off lightly after being found to have been practicing law without a license. We can now add an Iowa lawyer to the list of the fortunate among bar defendants. Robert Allan Wright Jr. arranged for various people to give him money to secure inheritance of $18.8 million from a mysterious long-lost Nigerian cousin. Most people above the age of six would immediately scoff at the classic Nigerian scam, but the Iowa Supreme Court found that Wright not only believed the scam to be true but still believes that it is true. It is the village idiot defense but in this case the subject is an attorney who secured loans of thousands from clients. Now here is the most disturbing fact: Wright was not disbarred. He was suspended, leaving open the possibility that he will represent people in the future.
Submitted by Darren Smith, Guest Blogger
The initiative process in Washington State is designed to allow individual citizens to participate in the law making process and collectively to work together to bring this cause to fruition. But is this century old tradition, rather uncommon in the various governments of the world, suffering from the effects of corporate interest and losing its original purpose?
Submitted By: Mike Spindell, Guest Blogger
Many blogs have been written here that deal with the phony “War on Drugs” and the negative effects it has on society, particularly those lacking resources, or being people of color. This piece is not about the “War on Drugs”, but this ridiculous “war” has actually driven the abuses of our criminal justice system that is my topic today. Because the “War on Drugs” provides context for this subject I’ve included links at the bottom that supply the context behind my opinions here. Human Rights Watch produced a report this week about how most defendants in Federal drug cases are forced to plead guilty under the threat of the imposition of a mandatory sentence. I read an article in Huffington Post referencing this study and it immediately brought to mind two aspects of law enforcement and prosecution today that raise my ire.
The first is the process of plea bargaining, which I believe makes a mockery of our Criminal Justice System. The second is the concept of Mandatory Minimum Sentencing (MMS) which in my opinion leads inevitably to miscarriages of what we would like to call justice. The idea of negotiation, bargaining if you will, is that each of the two sides has the ability to provide enough of value to be able to establish a mutually beneficial contract. Clearly though when it comes to a Prosecutor bargaining with a defendant there is, except in the case of the wealthy/powerful, an unequal negotiation. The Prosecution has the authority and resources of the State backing it up. Most defendants and indeed most people in prisons, have little resources. In the public’s (thus jury’s) mind, most defendants are really guilty until proven innocent, despite the “presumption of innocence” that is supposedly a hallmark of our legal system. Adding immeasurably to the Prosecution’s resources are “Mandatory Minimum” sentences (MMS). They were instituted by legislators who wanted to appear “tough on crime” and so represent drastic solutions to punishment needs, in order to appear as “tough” as possible. With the trump card of MMS prosecutors are in a position to threaten a defendant to “cop a plea” to avoid a more draconian prison sentence. The Human Rights Watch study shows how these two procedures have become a feature of American Criminal Justice that in my opinion makes a mockery of it. (more…)
On the death of Nelson Mandela, the case of Williamson County State’s Attorney Charles Garnati before the the Illinois Attorney Registration and Disciplinary Commission would seem to confirm just how much work has yet to be done. Garnati has been called to account to an argument in a murder trial that contrasted the black defendant with people “in our white world.”
In a case that seems right out of Arsenic and Old Lace, Carla Rae Hague, 71, has been arrested for allegedly attempting to kill Judge Charles Hague, by putting antifreeze into his food or drink. Judge Hague survived but the hospital found high levels of ethylene glycol in his system. Police arrested Carla Rae Hague for felonious assault and is sitting in a jail cell next to the courthouse where her husband is a judge. She is expected to be charged with attempted murder and possible tampering with evidence.
This morning I will testifying in Congress before the House Judiciary Committee on “The President’s Constitutional Duty to Faithfully Execute the Laws.” The hearing will address areas where President Obama has ordered the delay or nonenforcement of federal laws. While I happen to agree with some of these policies, I have great reservations about this record and its implications for the separation of powers.
By Mike Appleton, Guest Blogger
“Despite suggestions by the President, various Senators, and numerous commentators that the Senate has a constitutional obligation to act on judicial nominations, the text of the Constitution contains no such obligation.“
-Adam J. White, “Toward The Framers’ Understanding of ‘Advice and Consent’: A Historical And Textual Inquiry,” 29 Harvard J. Law & Pub. Pol. 103, 147 (2005)
“… [T]he constitutional obligation to provide advice and consent in the judicial appointment process should be seen as a nondiscretionary duty constitutionally imposed upon the Senate and enforceable by the judiciary.”
-Lee Renzin, “Advice, Consent, and Senate Inaction-Is Judicial Resolution Possible?”, 73 N.Y.U. L. Rev. 1739, 1751 (1998)
The Constitution requires no more than a bare majority of the Senate to approve a judicial nominee. How do we know this? First, there are only five situations in which the Constitution mandates super-majority approval: conviction of an impeachable offense (Article I, Section 3); expulsion of a member of Congress (Article I, Section 5); overriding a presidential veto (Article I, Section 7); approval of a treaty (Article II, Section 2); and the convening of a constitutional convention (Article V). Second, under a familiar rule of statutory construction known as “expressio unius est exclusio alterius,” the failure to include a super-majority vote requirement in the Appointments Clause means that no such requirement exists.
Nevertheless, the Senate has been able to transform its “advice and consent” function under the Appointments Clause into a sixth super-majority approval standard through its power under Article I, Section 5 to establish “the Rules of its Proceedings.” And the consequences have been more strongly felt during the current administration than at any other time in our history, (more…)
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
The five alleged 9/11 defendants currently being held at Guantanamo Bay where they have been detained since 2006, are currently preparing their defenses for trials that are scheduled for September 2014. All five defendants have been subjected to what the United States government called enhanced interrogation techniques at CIA black sites even before they got to Gitmo. (more…)
-Submitted by David Drumm (Nal), Guest Blogger
The “parsonage exemption” is found in 26 U.S. Code § 107 and states that a “minister of the gospel” does not have to include in his gross income, either the rental value of a home furnished to him or the rental allowance paid to him. Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin has held that the “parsonage exemption” is unconstitutional. Crabb wrote in the decision that the tax exemption “provides a benefit to religious persons and no one else, even though doing so is not necessary to alleviate a special burden on religious exercise.”
We have often discussed the lack of separation of temple and state in Israel as well as the control of religious figures on aspects of public life. A story this week vividly illustrates the problem. A rabbinical court has fined a woman hundreds of dollars for refusing to circumcise her baby son and thereby endangering her child. Many doctors are questioning the necessity and value of circumcision, which is generally left up to the parents. However, this is an issue with both religious and medical importance in Israel. The mother was fine $150 dollars every day that the boy was left uncircumcised.
In celebration of Thanksgiving, I give you our annual Turkey Torts of a few potential and actual lawsuits from this holiday. Personal injury and criminal defense attorneys have much to be thankful for in a holiday that often brings family members together in sometimes awkward or hostile or inebriated circumstances. The result is a horn of plenty for litigators. It also may make any tense or dysfunctional moments with family today seem a bit less significant. Have a happy and safe Thanksgiving!
We previously discussed an Ohio judge who chastised a jury and threatened a defendant that his acquittal would not end the matter for her. Now Texas visiting Judge Jerry Ray has joined the ranks of judges who express their anger at juries for not ruling as they expect. Ray told a jury that it violated its oath and acted like the jury in the O.J. Simpson case.
Who’s To Blame For George Zimmerman’s Most Recent Violent Assault Charge? Why It’s You His Former Lawyer Says
Posted in Bizarre, Courts, Criminal law, Justice, Lawyering, Media, Society, tagged George Zimmerman, Mark O'Mara, Samantha Scheibe, Shellie Zimmerman, Trayon Martin on 1, November 23, 2013 | 90 Comments »
By Mark Esposito, Guest Blogger
“Now if I stop there it sort of sounds like I’m asking you to let my guilty client go,” O’Mara told the jury. “I’m not. He’s not guilty of anything but protecting his own life. But the quote continues, ‘but for guilt and crimes that are so frequent in this world that they cannot all be punished, but if innocence itself is brought to the bar and condemned, perhaps to die, then the citizens say whether I do good or whether I do evil is immaterial. If innocence itself is no protection, and if such an idea as that were to take hold in the mind of the citizens, then it would be the end of security whatsoever.’”
~Mark O’Mara’s closing argument to the jury in State of Florida v. George Zimmerman
Innocence? You remember George Zimmerman from the last news cycle, right? He’s the wanna-be Batman, who shot and killed Trayvon Martin on a rainy night as the teenager came back from the all-night convenience store. George was that “mellow” and “peaceful” man who just happened to pack a gun for self-defense according to his then-lawyer, Mark O’Mara. Exonerated by a hand-picked jury, one of whom now regrets the acquittal saying he “got away with murder,” Zimmerman, we were told, would just ride off into the sunset with his loving and apparently loyal to the point of perjury wife, chastened by the experience of being wrongly accused of murder. George was a victim in all of this his family said, and threats to his life were comparable to the Aurora Theatre shooting or the massacre at Sandy Hook Elementary School. He needs protection shouted his brother, Robert Zimmerman, Jr., in an email to St. Mary’s Police Chief Steve Bracknell: ”Zimmerman is a Sandy Hook, Aurora waiting to happen. Your job is to protect the communities you serve and you are failing big time.”
There is a highly troubling case involving Jeremy Hammond,27, who was sentenced to 10 years for the December 2011 hacking of Strategic Forecasting. It was the maximum possible sentence that Chief US District Court Judge Loretta Preska could give him. The case involves a recurring controversy over the government’s effort to punish hackers and whistleblowers revealing a massive surveillance state and attacks on privacy in the United States. However, this case has the added disturbing element of an allegation of a conflict of interest by Preska who refused to recuse herself from the case despite the fact that her husband was an alleged victim of the hacking.
We have previously discussed actual evil twin defenses in past cases (here and here and here and here). However, a case out of Colorado Springs now has a detailed opinion specifically allowing the use of the defense in a major case. District Judge David Shakes ruled Friday that an Army artillery officer, 1st Lt. Aaron Lucas, could argue that his twin brother may be responsible for a series of sexual assaults.
Posted in Congress, Constitutional Law, Courts, Free Speech, Justice, Lawyering, Politics, Society, Supreme Court, tagged Department of Homeland Security, The Electronic Infomation Privacy Center; on 1, November 17, 2013 | 50 Comments »
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
The Electronic Privacy Information Center recently won the first round of a court action asking that the Department of Homeland Security be required to disclose its plans to pull the plug on regional or national mobile telephone and internet communication systems pursuant to its Standard Operating Procedure 303.
“In the classicly-rendered case, DHS has argued that shutting down entire communication networks might be necessary in order to prevent the detonation of radio-controlled bomb or explosive device.
However, siding with the Electronic Privacy Information Center (EPIC), which brought a suit demanding more transparency for the DHS program known as “Standard Operating Procedure 303″ (or SOP303), the federal judge at the US District Court for the District of Columbia ruled that because the release of the protocol could not reasonably be seen as harming law enforcement “investigative techniques or prosecutions” it’s cited reasons for keeping the details of the program secret did not hold up.” Common Dreams
The so-called SOP 303 could allow DHS to cut-off all internet and mobile phone communications at a regional level or a national level if it determined that there was a national security concern. We have already seen this government tactic used in Oakland in 2011 and that alleged over reach by the Bay Area Rapid Transit authorities may be the reason for EPIC’s lawsuit. (more…)
Posted in Congress, Constitutional Law, Courts, Criminal law, Environment, Free Speech, International, Justice, Media, Military, Politics, Religion, Science, Society, Supreme Court on 1, November 16, 2013 | 154 Comments »
Submitted By: Mike Spindell, Guest Blogger
In recent years many studies have come out that have made the case that a high proportion of CEO’s of major companies are sociopaths. At the end of this blog I’ll provide a number of links that discuss this, some from major conservative business magazines. We do know that from 1% to 3% of humans are sociopaths sharing all of these 10 characteristics:
#1) Sociopaths are charming. #2) Sociopaths are more spontaneous and intense than other people. #3) Sociopaths are incapable of feeling shame, guilt or remorse. #4) Sociopaths invent outrageous lies about their experiences. #5) Sociopaths seek to dominate others and “win” at all costs. #6) Sociopaths tend to be highly intelligent #7) Sociopaths are incapable of love #8) Sociopaths speak poetically. #9) Sociopaths never apologize. #10) Sociopaths are delusional and literally believe that what they say becomes truth.” http://www.naturalnews.com/036112_sociopaths_cults_influence.html
Now the problem with the definition of Sociopathy is that there can be a good deal of subjectivity in making the diagnosis, absent a clinician interviewing the subject. After all many people are charming, spontaneous, invent lies, try to dominate others and speak “poetically” and that doesn’t make them sociopaths. The subjectivity comes in trying to determine whether a given person is incapable of feeling guilt, shame, remorse and is delusional. A trained clinician may be able to do this via an intensive interview, but the nature of this disorder is such that even a trained clinician can be fooled by a sociopath. Rather than argue back and forth about the negative effects of CEO sociopaths on this society as the root of so much dysfunction, my readings this week suggest another theory that would provide a simpler explanation of why it seems that so many in this country have so little compassion and empathy for the less fortunate among us. We need not deem them sociopaths, but people who are simply removed from the misery that they inflict. The apocryphal story of Marie Antoinette’s “let them eat cake” may well characterize those who control most of this country’s wealth. It may be why some are sincere philanthropists, yet show such disdain and lack a sense of responsibility for the suffering that they cause. Let’s explore this further. (more…)
From Mike Nifong’s mishandling of the Duke LaCrosse case (which led to his disbarment) to the Oklahoma Supreme Court refusing to disbar Robert Bradley Miller for withholding evidence in capital cases and issuing false subpoenas to Angela Corey’s questionable prosecution of the Trayvon Martin shooting (which seemingly had little or no consequences to Corey whatsoever), stories of prosecutorial misconduct are nothing new to this forum. As always, such malfeasance can be driven by a number of factors – political considerations, public and media pressure, laziness, incompetence, and blind professional ambition to name a few. Regardless of the reasons underlying these kind of cases, the salient point is that such bad behavior on the part of prosecutors undermines the credibility of and the faith of the public in the criminal justice system.
This brings us to the case currently in the news of former Texas prosecutor Ken Anderson.
The former Williamson County District Attorney and Judge (appointed by Rick Perry) agreed to a plea deal for criminal contempt of court for failing to turn over exculpatory evidence in the 1987 murder trial of Michael Morton, later exonerated when the conviction was overturned in 2011. Anderson will pay a $500 fine, perform 500 hours of community service work, spend 10 days in jail and lose his license to practice law. As part of the plea deal, charges of tampering with evidence – which carried a potential penalty of 10 years in prison – were dropped. Is this sufficient punishment for willfully and wrongly sending a man to prison for 24 years? Does this kind of plea further erode public faith in the accountability of those responsible for running the criminal justice system? While this case is being trumpeted as “precedent shattering”, is it really? What can we do about this kind of systemic error?
Posted in Bizarre, Courts, Criminal law, Justice, Lawyering, Testimony, Uncategorized, tagged Attempted Rape, Curtescine Lloyd, Dwight Coverson, Hinds County, Mississippi, Self Defense, Sex Offender on 1, November 9, 2013 | 50 Comments »
Submitted by Charlton Stanley (aka Otteray Scribe), Guest Blogger
“If you’ve got ‘em by the balls, their hearts and minds will follow.”
- Lyndon Baines Johnson, 36th President of the United States.
I should have known something was up. I came home from work one day and my wife met me at the door. “Somebody broke into Curtescine’s house and tried to rape her.” Curtescine Lloyd was one of the nurses on the oncology floor at the hospital. Curtescine lived in Edwards MS, a small bedroom community just a few miles west of where we lived.
Shocked, I asked if there was any word on whether she was hurt, and did we need to go to the hospital. My wife responded, “Not exactly.”
Submitted By: Mike Spindell, Guest Blogger
I have written some guest blogs in the past dealing with aspects of the issue of America becoming a Police State and will link to them at the end of this piece. There are so many issues that call for our concern and attention in this country today, that dealing with the entire dysfunctional state of our country becomes daunting due to the wealth of material. Finally, the stories on a given issue multiply in such a way that their effect is a realization across all political lines that enough is enough. The issue of our country’s continuing descent into a”Police State” equaling all we know of the vile systems in the USSR and the former East Germany is an issue that concerns me.. The situation is dire and the consequences have produced not only horrible injustices, but also the many unneeded maiming and deaths of innocent individuals. Our country imprisons more people per capita than any other country in the world by far. Part of the reason for that is the “War on Drugs” an abject failure that falls most heavily upon people with low incomes and people of color. One such incident caused Professor Turley to pen two blogs this week. They were about a man falsely suspected of drug possession who had all his bodily orifices and cavities checked in the local Arizona police’s vain attempt to find evidence of guilt. None was found and the procedures were not only traumatic, but invasive. Thus the “War on Drugs” is one major contributing force to turning our country into a Police State.
Another contributing Police State factor has been the Federal Government militarizing our local police forces. I’ve written about this as well and will link at those blogs at the end as well. Somewhere along the line, certainly hastened by 9/11 it appeared a necessity to some that are police should be turned from officers of the law into a paramilitary occupying army. There is a great distinction between an officer of the law and a paramilitary trooper. An officer of the law the way I see it, is empowered to enforce the criminal law in ways of lawful conduct that are deemed permissible via our Constitution and Statutes. Thus an officer of the law should be a citizen like the rest of us and in the performance of their jobs should respect the rights of the citizenry. A paramilitary trooper by definition perceives themselves operating in a hostile environment and so everyone in that environment that is not of their army is a potential “hostile”. This unerringly begets a certain level of brutality when dealing with the populace, because from a paramilitary perspective people are presumed guilty, until they are proven innocent. We have seen and I have documented in guest blogs that vast sums of money have come in from the Federal Government to help create paramilitary SWAT teams. Once created, the uses for these teams multiply far beyond their original purpose, because having a tool inevitably causes its usage. After the split I will discuss yet a third factor that adds to this police state mentality, but first I’d like to express the following. The issue of our country becoming a Police State should not be and is not a partisan issue. Just from the opinions of people who follow this blog and comment, we see general agreement that these police tactics violate our Constitution and our innate sense of propriety. We may not all agree on most aspects of government policy, but I would hope we can agree on the proper manner in which our law officers should enforce the peace. (more…)
Submitted By: Mike Spindell, Guest Blogger
I’m going to use what has become a cliché to open up this piece. “The definition of insanity is doing the same thing that has failed over and over again.” Often clichés are expressions of reality that nevertheless express problems faced by generation generations and generations of human beings. In my opinion “The War on Drugs” is not only an abysmal failure, but has gone a long way towards destroying the social fabric of this country and corrupting the efforts of law enforcement, by manufacturing a “problem” that they are pressured to solve. The idea for writing this came to mind this week at my local drug store. My wife had sent me for a decongestant that contains pseudo-ephedrine to treat a persistent cold. These medications which were formerly as matter of course located in the Cold and flu section are by law now kept behind the prescription counter. To make my purchase I had to produce a driver’s license, whose number was duly entered into a computer and sign an affirmation form digitally. Now since I was a loyal viewer of “Breaking Bad” I understood why this was seen to be necessary by the government. Pseudo-Ephedrine is used in one common formula to “cook” Chrystal Methedrine, or “Speed”. The idea that I, a 69 year old greybeard, should be recorded as a potential cooker of “meth”, is so ludicrous that it caused me to think about the whole process of drug interdiction that is the result of the War on Drugs.
The reach of the War on Drugs goes far beyond the control of formerly non-controlled substances and has affected and limited the way Doctors prescribe for their patients. This prescription oversight ever expands the categories of controlled substances and puts every physician under undue government surveillance. To illustrate the silliness of this, from my own experience, let me relate that in 2010 I underwent 3 major, life-threatening operations within a 4 month period. After each operation which involved cutting my chest open (the middle one was a heart transplant) in the Surgical Intensive Care Unit I was being given unlimited dosages of morphine to deal with my pain. In each instance after an operation, after two days, I would refuse the morphine because it was affecting my thinking and the pain without it was tolerable. In each instance after practically having to forcefully deny the proffered morphine in the morning, my request for Xanax that evening to help me sleep was denied, even though my Surgeon had prescribed it. This required a late hour call to the Doctor on call to prescribe it. The nurse was only following procedure, but the scrupulousness of the procedure is the result of the War on Drugs. Physicians now treating people for various pain symptoms are now under very close scrutiny regarding the medications they prescribe. To me this is nonsensical, given that addicts always find ways to get their drugs no matter what strictures are put into place. What follows is my examination of the premises behind the War on Drugs, its affect on all of us and my solution to this “problem”. (more…)
We have often discussed the abusive expansion of copyright and trademark laws. This includes common phrases, symbols, and images being claimed as private property. (here and here and here and here and here and here and here and here and here). (For a prior column, click here) This trend is being fueled not only by powerful lobbyists who sometimes seem like they control both Congress and the White House but law firms that have made this a virtual cottage industry. There are a large number of law firms on retainer to bring these actions and artists and companies that do little to limit them. The latest example was brought to light by the good people at Techdirt which posted a Digital Millennium Copyright Act (DMCA) letter to Reddit informing them that they had violated copyright laws with a posting of an individual known as heisenberg69 with this image satirizing Office Depot.