Category: Constitutional Law

Congress Moves To Block Atheist Chaplains

220px-American_Civil_War_ChaplainFor many years, there has been controversy over the funding of military chaplains and the preferences given certain faiths.  The problem is that as much 23 percent of our military list no religious association or preference. While many simply have no religious association with a particular faith, some are agnostics, some are atheists, and some are generally humanists.  It would seem logical to have some chaplains who can relate to those groups. However, members of Congress are irate and insist that chaplains must believe in a deity to be funded. They warm that humanist or secularist chaplains would be traumatizing dying soldiers about being “worm food” and dying without hope.

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What Seems To Be The Problem, Officer? Australian Man Prohibited From Driving Is Arrested While Driving Car With Two Flat Tires and Steering With Pliers

article-0-1AF32804000005DC-417_634x447Police in Australia pulled over a driver who appeared to be driving erratically and driving on two blown-out tires. It turned out that that was the least of his problems . . he was steering his car with a pair of vice grips. The vice cops have an impressed list of crimes for the driver.

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ACLU.2.0: ACLU Shifts Position On Civil Rights Action Against Zimmerman

American_Civil_Liberties_Union_logoZimmermanx-inset-communityThe American Civil Liberties Union seems a bit less unified in the aftermath of the Zimmerman acquittal. I remain a huge admirer of the ACLU and its inspiring legacy in fighting for civil liberties in America. I also have great respect for ACLU Executive Director Anthony Romero. However, the divisions evident on this civil liberties blog appears equally represented in that civil liberties institution. To the surprise of many, including myself, Romero sent a letter to Attorney General Eric Holder that seemed to clearly invite a civil rights or hate crime prosecution of George Zimmerman. The ACLU however has long taken the view that such prosecutions violate the double jeopardy clause of the Constitution. When the federal government does not like the outcome of a high-profile case, it can use the very same facts to bring another prosecution under a different crime. After sending the letter, however, the ACLU staff appear to have objected and sent out a conflicting position that such successive prosecutions are violative of constitutional principles.

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Federal Marshals Raid Woman’s Home After She Screams And Hides From Officer Pointing Gun At Her Through Window

woman2-230x300200px-U.S._Marshals_knock_and_announceWe have been discussing the increased powers claimed by police in searching homes without warrants under claims of exigent circumstances or hot pursuit, including the right to search an entire area of a city. Sarasota Florida resident Louise Goldsberry came face to face with these powers recently after eating dinner. The nurse was at her kitchen sink when she looked out the window facing a man in a hunting vest pointing a gun in her face. She dropped to the floor and started screaming and then thing got really bad. (The picture on the right is of a different “knock and announce” raid by the Marshals and local police).

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Is Freedom of the Press Dead?

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

There has been a large volume of discussion on this blog concerning the loss of our personal liberties and constitutional freedoms.  One of the most important of those “freedoms” that seem to be at risk is the Freedom of the Press, especially in light of recent events.

“Following the amendment of a long-standing U.S. law, people in this country will now be exposed to news which is produced by the U.S. government.  On Jul. 2, a change to the U.S. Information and Educational Exchange Act, also known as the Smith-Mundt Act, came into effect, reversing a ban on the State Department and U.S. international broadcasting agencies which had prevented them from disseminating their program materials within U.S. borders.  The Broadcasting Board of Governors (BBG), the U.S. federal government agency which oversees all U.S. government-supported media internationally, notes that individuals residing in the U.S. will now have access to vast amounts of new information.” Nation of Change Continue reading “Is Freedom of the Press Dead?”

What Happened to Michael Hastings?

Submitted By: Mike Spindell, Guest Blogger

Michael_Hastings_election_night_2012As erudite and informed as I pretend to be, the fact is that there is much that is important that I either miss, or fail to see any significance in. The death of investigative reporter Michael Hastings showed me that because my first reaction to the news flash was “who is Michael Hastings?” Reading further into the story I discovered that he was the reporter who brought down General William McChrystal and that he was considered to be one of America’s premier investigative journalists. As I read that original story, the thought occurred to me that possibly Hastings’s death in an auto “accident” was not simply a case of reckless driving, but I initially dismissed that as merely the operation of my cynical mindset.  Nevertheless, the thought nagged at the back of my consciousness and then I saw a story on http://whowhatwhy.com/ , my favorite investigative website, run by the renowned Russ Baker. The stories title: “The Michael Hastings Wreck-Video Evidence Offers a few Clues”     http://whowhatwhy.com/2013/07/14/the-michael-hastings-wreck-video-evidence-offers-a-few-clues/

For my own benefit and perhaps yours, I’ve done a little research into who Michael Hastings was and what he did that deserves attention. I explore the possibility that his death was no accident. I admit that I have no proof beyond speculation. Hopefully I can give you enough information to make your own judgments. In a world where American Presidents openly arrogate to themselves the right to kill people deemed enemies of the United States, all things suddenly become possible. When the basic right of habeas corpus can be denied to American citizens, based upon unproven allegations of their being threats to this country, isn’t it possible for those with the power to detain and to eliminate individuals, to make decisions as to someone’s existence doing harm to this country? Finally, doesn’t this unconstitutional expansion of powers give individuals with government connections the leeway to take revenge on those who expose them? While I’m not privy to knowledge of the actions of those in power and can claim no inside information, I certainly can speculate based on the experience of my lifetime. This then is my speculation about the death and life of Michael Hastings in the context of current life in these United States. Continue reading “What Happened to Michael Hastings?”

The Stand Your Ground Law And The Zimmerman Trial

President_Barack_ObamaLast night, I appeared again (here and here) on the PBS Newshour to discuss President Barack Obama’s comments about the Zimmerman trial.  While I usually do not intrude on our weekend guest bloggers, I have received a few emails about a comment that I made about the Stand Your Ground law.  I was commenting on the President’s statement that we need to reexamine the Stand Your Ground law and noted that the law was not in play at the trial.  This led to a few emails objecting that I had ignored the jury instructions that they claim imposed the standard of the SYG law on the jury. I disagree and wanted to briefly explain.  Most were civil and insightful and I thought, after our exchange, it would be good to post a brief discussion on this insular issue from the trial.  There are important things to discuss in the aftermath of the verdict, as the President said, but we should be clear about our view of the underlying legal standards and trial record.

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American Juries: Seekers of Truth or Mere Consensus? Part I

By Mark Esposito, Guest Blogger

rodney_matthews_alice in wonderland_the knave on trial

”Write that down,” the King said to the jury, and the jury eagerly wrote down all three dates on their slates, and then added them up, and reduced the answer to shillings and pence.”

~Lewis Carroll, Alice’s Adventures in Wonderland

Few institutions of the English speaking peoples are held in the same esteem as juries in criminal cases. A full three quarters of those polled in the U.S. would want their case decided by a jury rather than a judge. Three in five Australians believe their jury system is working well. In the UK, juries enjoy support from 72% of the population and the same percentage rate the right to trial by jury as one of the most important in society. Compare that to the U.S. Congress’ approval rating of 15% or the President’s rating of 43% and you can see that in America we love juries.

And why shouldn’t we? After all, it was Jefferson who reminded none other than that firebrand of the Revolution, Thomas Payne, in 1789, that “trial by jury [is] the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Jefferson words surely were on the mind of Justice Byron “Whizzer” White when he wrote, “The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.”

But do modern juries live up to the billing? Are they the bulwarks of democracy seeking only truth or sad victims of a process designed to produce groupthink results due to systemic flaws? Are they staunch individuals committed to their position and determined to fight to the last man to prove it, or are they susceptible to influences both in and out of the deliberation room which have little or nothing to do with evidence and logic. In essence, are they seekers of truth or merely consensus?

Continue reading “American Juries: Seekers of Truth or Mere Consensus? Part I”

Portland: A Citizen Can Be Handcuffed, Locked Into Car, And Driven To A Different Location But Still Not Be “Under Arrest”

220px-Don't_jay_walk_1937The Portland police and City Attorney are making an argument in federal court this month that gives another glimpse into the increasing claims of authority of police in our society. Scott Miller was stopped for jaywalking by Officer Dean Halley in 2010 and admitted that he committed the common violation of pedestrians. The officer however proceeded to handcuff him, tell him “you’re under arrest,” throw him into the back of a cruiser and then drove him a block away. He was in custody for about 30 minutes, but Deputy City Attorney William Manlove is arguing that citizens cannot sue because such acts do not constitute an actual arrest. They are something between a chat and custody, but not an arrest for purposes of legal action.

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Carter: The United States Has No Functioning Democracy

carterWe have been discussing the collapse of the American civil liberties movement and the attacks on the free press and privacy under the Obama Administration. As discussed in prior columns, we continue to refer to the United States as the “land of the free” despite a comprehensive reduction of civil liberties and due process in this country. The Snowden affair has put that record in sharp relief as the White House and Congress has joined together in barring the prosecution of perjury by high ranking officials and pursuing Snowden with close to unhinged rage. As previously discussed, our governing class has created a new American Animal farm. Long ago, American politicians adopted a type of dismissive paternalism toward the public as shepherds to so many sheep. Then one sheep goes and spooks the flock. The response has been bipartisan rage that has included demands to cut off aid to entire nations if they grant sanctuary to this whistleblower and even boycott the Olympics. The shepherds want Snowden made into mutton for stampeding the flock and no measure appears too extreme. Now Jimmy Carter has entered the fray and said what many citizens are saying in denouncing our duopoly. Carter told Spiegel “America has no functioning democracy.” Of course, you have to live in Germany to read such views.

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Canadians Charge Website Operator With Obscenity Over Publication of Murder Video

Unknownjun_lin.jpg.size.medium2.promoWe have interesting case this week out of Canada that raises the limits of free speech and the use of decency or morality laws. The Canadians have criminally charged the owner of a website for the posting of a horrific video showing the murder of an individual by Luka Magnotta (left) and then sexual relations with the corpse of Jun Lin (right). The concern is that the site owner is being charged with “corrupting morals” a largely undefined crime and has traditionally been used to impose and enforce the moral values of the majority on people who do not share them. It is the natural extension of laws prohibiting the publication or possession of obscene materials, a long controversy in this country as well.
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Texas Judge Under Fire After Disclosure That She Texted Prosecutor During Trial With Suggested Examination Questions

rawImageElizabeth Coker, 258th Judicial District Judge in Texas, appears to want to be both judge and prosecutor at trial, but clearly not the defendant. Coker has admitted to sending text messages to a prosecutor to suggest examination questions during a trial. What is astonishing is that the prosecutor Kaycee L. Jones, was later made herself a judge despite the misconduct. The case reflects what defense attorneys have often complained is the close relationship of judges and prosecutors as well as the overwhelming preference for making prosecutors judges across the country.

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Former Alabama High School Teacher Avoids Criminal Charges By Marrying Former Student

51de238566e2a.preview-300mug-shot-93230571Kimberly Dawn Bynum, 31, has found not just love but a criminal defense according to her lawyers. Bynum was facing charges of having a sexual relations with a former student from November 2011. The student was 17 at the time. However, her counsel recently told the court that she had married the student and was now living outside the country. The charges were promptly dropped.

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The Irresistible Woman Meets The Incorrigible Court: Iowa Supreme Court Issues New Opinion Upholding Firing In “Irresistible Attraction” Case

121223010629-nr-lemon-dental-assistant-fired-00001202-story-topRemember the case of the Iowa Supreme Court upholding the firing of a dental assistant because she was too attractive for her boss to resist? The Iowa Supreme Court ruled in December that a dentist did not commit gender discrimination in firing an attractive female employee, Melissa Nelson, at the request of a jealous wife. After a national outcry, the Court surprised many by suddenly vacating its earlier decision and taking back the case. Many hoped the court would discard its prior opinion. Think again. The Court has issued a new opinion with the same conclusion and ramping up its prior holding.

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Same-sex Marriage and the New Dominionist Manifesto

By Mike Appleton, Guest Blogger

“So let us be blunt about it: we must use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government.  Then they will get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God.”

-Gary North, “The Intellectual Schizophrenia of the New Christian Right,” (Christianity and Civilization: The Failure of the American Baptist Culture, Number 1, Spring, 1982)

In Loving v. Virginia, 388 U.S 1 (1967), the Supreme Court held that Virginia’s prohibition of interracial marriage violated the Due Process Clause of the Fourteenth Amendment. “The freedom to marry,” wrote Chief Justice Warren, “has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” 366 U.S. at 12.  Many people were hoping that the Court would formally accord that status to same-sex marriage last month.  But it did not happen.  Edith Windsor will receive hundreds of thousands of dollars in tax refunds from the federal government, but the Court did not find it necessary to address the issue of same-sex marriage as a constitutional right, and elected not to do so. United States v. Windsor, No. 12-307 (June 26, 2013).

While that central constitutional issue remains unresolved, opponents of same-sex marriage are on the move.  The Freedom Federation, a coalition of civil and religious right-wing organizations ranging from Americans for Prosperity to Wallbuilders, has issued a pre-emptive strike in the form of a signed letter declaring that “the Supreme Court has no authority to redefine marriage… .”  The letter, which can be found on the Freedom Federation website, asserts that should the Court grant legal recognition to same-sex marriage, it “will be acting beyond its proper constitutional role,” and concludes with the vaguely ominous warning that “this is the line we must draw and one we cannot and will not cross.” Continue reading “Same-sex Marriage and the New Dominionist Manifesto”