Crazy is Crazy and That is Nobody's Fault.

Today I awoke to the news that some Sixty Six Year Old nut job from Illinois decided he was going to make a point of embarrassing himself and his causes by killing or at least wounding a bunch of Republican Congressmen and Senators who get together at 7am to play baseball in Va.
It turns out that this guy was a Bernie Sanders supporter. Hence with a Congressman (Scalice-R-La.) who is the Majority Whip in the House (and thus in the Presidential line of Succession), in surgery for a gunshot wound and 3 other aides and Capital Police Officers shot, everybody decided now was not the time to come together as a nation and pray for the wounded, but instead it is time to blame each other for this idiot going off the main beam.

Frankly there are a number of things that could be going on here with the shooter, one James Hodgskins III of Illinois. He could have decided he wanted to go out in a blaze of "glory" or that he wanted suicide by cop. He could have been a troubled soul that finally lost his last marble. He could be a nut that wanted his shot for 15 minutes of fame and for everybody in the country to hear about his causes. The list of reasons this guy might have engaged this way could number in the millions, but one of those reasons is NOT because of anything any pundit, politician, or publicity seeking provocateur said.

Let's get this straight. Hodgskins didn't act because of something Bernie said or Trump said or because he didn't like the way they voted on an issue or even because in his twisted little mind he thought he was going to lose his healthcare, Viagra or library card.
He was not caused to do this because of Rush Limbaugh or Jeff Sessions or James Comey. Brexit and the Mexican wall had NOTHING to do with this. He wasn't channelling Al Franken or Elizabeth Warren. The acts this morning were the acts of a psychopath and could just as easily been caused by his bad hair day as by anything else. DO NOT SUBSCRIBE REASON TO A MENTALLY ILL PERSON.

Unless one can show a conspiracy to do this, or a contract to kill (think "button man" from the Mob) then this was a random act of crazy and looking to place blame on anybody's word is just a self interested attempt to cast dispersions on people you do not like.  Fact is nothing anyone said would have caused him to do this or stopped him. That is because his reason for doing this is personal to him. The idea that something someone said "drove" him to act is nothing more than an excuse and minimizes both the danger he was to others and it gives into him, because it gives him power he never had in life, to try to get others to change their behaviors and opinions through his actions.

Seeking to shame Tim Kaine for saying we have to fight Trump "in the streets" is not why this happened. Showing a picture of a bull's eye on Gabby Gifford's face in a campaign piece, while in extremely poor taste, did not cause her sick twist of a would be assassin to act the way he did. No, they do this for reasons if exposed we would find in the darkest corners of their twisted brains. Now is not the time (actually it is never the time) to blame the free speech of others for the actions someone takes unless they are duty bound to follow an order. (Think Army Capt. following commander's orders.)

When I see people blaming others for this tragedy because they may have "radicalized" or suggested it was okay, or made it easy for him or any of the myriad of other stupid things people have said or are going to say about this, I realize, they are not leaders. They do not understand what happened, but they are scared little people trying to convince others of their own importance to compensate for their own inadequacy to shut down their actual opposition. I am not reading them, I am not listening to them and I cannot be persuaded by their ranting. I am looking for leaders. Let's see if there are any in my Twitter Stream, or among my Facebook friends or on the news tonight. I am not planning on finding too many but I can always hope someone out there is smart enough to realize what stuff like this does to our Bill of Rights and are willing to speak out against it.

Memorial Day 2017: RememberingWhy We Remember.

Our freedom and our lives were and are preserved by those that served our country in War and Peace as Soldiers Sailors Airmen and Marines.

Their efforts and their lives were spent in service of not just a nation, but an ideal. That all men are created equal, that rights of man are derived from a higher power, but protected by our brave military, that we are a nation of Laws not men, that we are united in the goal of being one nation, indivisible, with freedom and justice for all.

Now so many years later we need to not just remember those that died for those ideals, but we need to remember the ideals themselves.

As I watch my feed here and on Twitter or listen to the national debate, I wonder, is this an America worth dying for? Are these Americans worth defending? Sadly, more and more, the answer is no. 

America, indivisible, with freedom and justice for All. If you are not working toward that goal, then today is just a day at the beach. If you want an America that is strong and united, then what we have been doing the last 24 years is not .

It is time to ask yourself, would you risk the life of your child for the thing for which you are fighting.

Would you risk their life for your full SS Payment? For more benefits for the poor? Would you risk their lives to get bigger tax breaks for the top 1 or even Top 20%? Would you risk their lives for a death penalty? Next time you vote, ask yourself, would I be willing to risk my child's life for the programs, policies, AND character of the person for whom I am voting? If not, is that really the right vote for me? 

There are things, worth asking the men and women of our military to die for, everything else should be open to compromise. 

So celebrate the men and women who fought for our ideals, our safety and our nation, but do not forgetthem tomorrow. Tomorrow start asking yourself about what is so important that you would put your child's life at risk and conduct yourself accordingly.

Let's Play "News, Not News, Fake News"!

Okay Team, I am getting really tired of all the Bullshit that people get nuts about. Some is actual news, some while true, isn't really news and of course some stories are pure fabrication or so devoid of the truth that it is...well, fake. 

Here is how we play:

1 present a story from some "news site" or some body's twitter/Facebook feed, you tell me if it is News, not news, or Fake News I give the answers at the end. 

Here is an example: the Holocaust never happened.

Answer : FAKE news.

If the story has some kernel of truth  it is not news it is fake news

Since it is my blog, My say is final, but YOU can make a case for your answer in the comments section. Got it? Good let's start:

1. Trump's budget is going to deprive Senior citizens and others services of "Meals on Wheels".

2. Trump Fired Comey because, Comey would not swear allegiance to Trump personally.

3. Trump may have fired FBI Director Comey because he would not stop investigating Flynn.

4. The AHAC (a/k/a "Trumpcare") will cause millions to lose their health insurance

5. The AHAC  repealed Obamacare, 

6.Trump exposed secret intell to the Russians.

7 Trump refuses to read his foreign policy and intelligence Riefenstahl reports.

8. Trump gets 2 (THAT'S 2) scoops of ice cream for dessert, everyone else only gets one!

9.The size of President Trump's inauguration audience was less than President Obama's

10. Senate Majority Leader Chuck Schumer has called for ____________ 9fill in the blank

Answers:

1. Fake News

2. Not News

3. News

4. Fake News

5. Fake news

6. Not News

7. News

8.Not News

9. Not news

10. Definitely Not News.

Disagree? Let's here why in the comments below.

Just When I Thought I was Out, They Pull Me Back In

I thought my long rant time was up. Obama made ranting here useless because let's face it, he was horrible, but he wasn't my problem. Moreover while not a AGOTUS Holder fan , ( and very disappointed in Loretta Lynch) from a criminal law point of view, and with Obama's pardoning long term drug offenders, my general issues kind of wained and so this blog started to fade.

Of course some personal things came up, like my Wife's Scleroderma worsening, and my finally closing solo practice to join a law firm with younger lawyers who think I have wisdom that comes with advancing age and greying hair. My move to Raiser & Kenniff PC has made me happier and frankly has given me a bunch of new goals. I always loved being a lawyer, but I do not always like running a practice, but that's now my younger partners' problem. I am focused on federal criminal and civil rights law. I do strategic litigation, teach CLEs and write legal method articles. It's been fun. Then...came Jeff Sessions... the rants began to build within my gut, and before I knew it, I was planning on restarting the blog!

Maybe the long time away will return me to form but a few things have not changed. I am still outspoken passionate and will still write in my voice. I hope my friends like Denis Kennedy Tom Mighell, Dan Hull, Carolyn Elefant and others will start reading me again. I was an early adopter of blogs, and social media such as Twitter, and Facebook. I have outlets, but no matter where I publish, what I say here represents me and my views.

So let's look at the week in the legal news:

1. FBI Director James Comey is Fired by President Donald Trump...just typing President Donald Trump leaves me wondering WTF happened while I have been away..,

Well there is very little for me to add to this  clusterf*** but here are a few thoughts. I am not a fan of Justice by press release. Judge Comey, was just wrong to get into last year's election in any way shape or form. No doubt it was NOT the reason he was fired some 6 months later, but frankly, Obama should have done it in July of '16.

Look people, our Constitution has a mechanism for ridding us of a criminal President. It is called impeachment. Comey only dirtied up the waters, and he was wrong. I understand WHY he did it (Thanks again AGOTUS Lynch and Slick Willie Clinton. Talk about a brain fart, Loretta, really???)
Anyway, Comey needed to go. That aside, Trump fired him for a bunch of reasons: A. He was letting Trump twist in the wind on Russia-gate. B. He was getting too much Press, nobody should get more Press than Trump! (Now Trump telling  NBC's Lester Holt that Comey was a "showboat" defines Hutzpah. It was funny in a cringeworthy way. Can Trump possibly be that unaware? Apparently, yes.)

Now because he has "People" around him, one of the geniuses (my money is on Kushner or Conway) realized that firing the lead investigator WHILE he is investigating you is a bad optic. So they go to Sessions, and he gets a ridiculous hit job letter from his toady Deputy Attorney General Rosenstein to write an excuse that if Trump stays on message will give him a reason for the firing that in no way fooled anybody but might have moved the discussion along. The failure to take Trump's Twitter account away, and his general life experience however left no doubt that he was going to screw up his staff and prove to everyone he had the biggest balls in the city by announcing the firing was his idea, his call, and his decision. Now let's see, in one set of tweets and an interview he screwed VP Pence, his whole Press team, Sessions and Rosenstein.  The sad thing is, his supporters don't care, which is the most F***ed up thing I've ever seen in 50 years of following American politics. Somehow Trumpsters decided this megalomaniacal billionaire is the underdog AND is looking out for them. I mean seriously, how angry can you be, being a mostly white American. You want to be pissed, imagine you are born into India's lowest caste.  These Trump folks are pissed they do not have more?!
 Anyway, I smell a problem coming and it will get ugly quickly, however, the stakes are high. If Trump's new FBI director can get his decision about Russia-gate done within 8 months, and the GOP holds firm on the special prosecutor issue, Trump could come through midterms with a veto proof Senate and an enlarged majority in the House to help him break Obamacare and get his budgets through. If it goes badly, the house will belong to either the Dems or the Freedom Caucus, and the Senate will see even more divisiveness. I doubt the GOP holds the Senate, which could mean impeachment could be on its way.

2. AGOTUS Sessions has ordered all his acting US Attorneys and their assistants to go back to charging the highest count they can get, justice be damned. He wants them to seek charges that seek out mandatory minimums and he wants them to seek max time. The Neo-con Drug Warrior is back to grab one last gasp.

Okay I am on record for being against Mandatory Minimums, overcharging crimes, the Drug War and Jeff Sessions, but I have to wonder, after almost a decade of lower crime rates, and saving a load of money by NOT jailing non-violent offenders, why we would change courses mid stream?

Well it's not JUST because Sessions is a redneck curmudgeon who hates poor people minorities and immigrants, nor is it because he has small hands and looks like an elf. It's because... Sessions is on the payroll of the private prison industry! Yes, money is pouring into Sessions  pockets! GOP pockets and possibly other pockets. The industry has hired TWO , TWO former Sessions political employees. What would they be lobbying an AG about do you think?  These two guys have poured over $100K into Pro Trump Super-Pacs. I think the Press needs to ask more questions about these two guys, and look into Sessions too. Of course, with so many things happening, it is hard to believe they will. Nevertheless, guys JUST FOLLOW THE MONEY!!!

3. I've found Pinterest!

Follow That Lawyer Dude for healthy recipies. Tonight I made my Turkish Paprika Kicken Chicken. It was phenomenal!

Multiculturalism is not achieved by denying religion, but by honoring all of them.

Today's Guardian has an article about an Italian headmaster who has banned Christmas carols from the schools winter concert.
http://www.theguardian.com/world/2015/nov/30/christmas-is-cancelled-italians-outraged-over-school-decision-to-ban-festivities

Last year evidentially, during the concert, a bunch of Muslim students were ordered by their parents not to sing the carols. They stood there silently while the other kids sang. Some of the Muslim parents went onto stage and pulled their kids out of the chorus. The Headmaster Marco Parma decided that it was not a good sight and decided to cancel the carols.

Mr. Parma is wrong. He wants a school that is multicultural. That is not what he is promoting, he is promoting segregation and a heckler's veto (Where a legitimate voice is stifled by a dissenter who creates a scene causing the former to be quieted by authorities to "Keep the Peace". )

In a multicultural world, every religion and every culture is celebrated by everyone. Music is an international language. The notes are the same if you are Catholic, Jewish, Muslim or a Sub Genius.
They tell a history, music can cause revolution (See VERDI and the Italian Unification) it soothes a child, it honors heroes. It can expose villains.

Stifling Religious music, teaches nothing but distrust. It causes dislike and hate. What's more, is in Italy, there is an official state religion, it is Roman Catholicism and that makes this kind of decision even more dangerous. It teaches majorities to dislike minorities, to fear that the acceptance of others means that the majority's culture no longer matters.

Now this isn't about making fun of another religion, It doesn't mean that participating in the music of another culture is accepting the ideals of the other culture. It means that one respects the culture of all people. That is what music does. It breeds acceptance. If you don't want to accept the views of others, then go off and be among your own. You may not learn anything, you may be disliked for your parochial attitudes but at least within your bubble you can be what you want to be.

What Parma fails to see, is that he has missed a teaching and a learning opportunity. He is a failure as an educator. He needs to stand down or be fired and let someone who gets it, teach it. Multiculturalism is inclusive, not exclusive. It adds it does not take away. If you do not want to participate, don't, but if you do, you may learn a thing or two about people you do not understand and they may learn about you.

An Open Letter to President Obama : The Problem With Accepting Syrian Refugees.

Dear Mr. President,

Don't you EVER call me bigoted or frightened or xenophobic because I will not support your half baked plan to admit Syrian refugees into America. Its not b/c of them that I object, its because of YOU!

You have proven yourself to either be the dumbest President since Harding, or the biggest liar since Clinton. You may be both, but I fear more the latter than the former.

You see, in order to engender trust in your work and that of those that work in your administration, you have to be RESPONSIBLE. You are not.  You never take responsibility. Any problem you encounter is always someone else's fault. You claim to never know anything when there is a MAJOR screwup in your administration. You find out when you read it in the newspapers. This does not engender trust.

You also say things you cannot prove or back up! You see Mr. President, ISIS was not the JV team; you do not have Isis contained; Your former Secretary of State knew a lot more than she allegedly told you, and she used private e-mails which she later destroyed without your approval, and  your staff (ie Ms. Jarrett) planned lies about most if not all of it.
By the way When the President of the United States of America draws a "line in the sand" and then has to let the Europeans pull your foot out of your mouth, that does not engender trust in you or your word.

You promised transparency, but yours has been the least transparent administration since Nixon. You promised to not spy on us, LOL! Nixon is in the clouds saying "Whoa, this guy is good". Hell even J Edgar Hoover would be impressed. You spied on our allies and lied to them about it. Your IRS targeted your "enemies" but you take NO responsibility for their actions. Instead your administration has covered its wrong doing up. Cover ups do not engender trust.

Personally,  I don't think you or anyone working for you, could spot an Islamic or for that matter ANY Terrorist if he was standing in front of them with a lit bomb screaming "JIIIIHADDDDD!" and wearing an Allahu Akbar!!! Pin. Hence I do not think your administration can be trusted to properly vet incoming refugees to determine which of them may be the one to blow something up in the USA.

No Mr. President, I am neither a bigot nor a xenophobe, I am just an ordinary American citizen who has lost faith in his government's, and more importantly his President's ability to preserve his freedom OR his safety. That is why so many Americans are against taking in Syrian Refugees right now. If you would step out of your Rose Garden for a few minutes and talk to the part of your constituency that you do not like, you might learn a thing or two. Who knows, you might even apologize correctly for your past behavior and that of your staff and start to get back the trust of the public that you had three short years ago but squandered since.

Yours truly
Anthony Colleluori

AKA That Lawyer Dude.

Facebook won't let you see this, fortunately, That Lawyer Dude will: Christine Hoff Sommers on the Fallacy of the Gender Gap.

Want some real truth? Here it is. Facebook will not let us post this on their site (It violates their community standards??!!!) but I will let you see it.  GO HERE.
Sommer drew the ire of Georgetown University's Hoya Newspaper because she tells the truth about the sacred cow of higher ed. She debunks the theory of the wage gap.  Watch the video, then you can argue with me below. I think this is the best debunking of "liberal./progressive think" that I have seen.

To Have and To Hold: SCOTUS Takes on Gay Marriage

On Tuesday April 28th the United States Supreme Court will be asked to decide if homosexuals have the right to marry each other (same sex marriage) and/or if a couple is married in a state which practices  marriage equality has a right to have that marriage recognized in a state that does not have permit gay-marriage.

If I were a member  of SCOTUS (and fortunately there is little chance of that) I believe I would decide the matter that 1. Government needs to get out of the marriage business. We do not have an interest in marriage we have an interest in contracts. All contracts should be honored across state lines due to the theory of comity (legally it means reciprocity among sovereigns). I do not believe the federal government should be sanctioning what is really a religious ceremony. As a contract, I should have the right to contract with any one I choose who is of age and who is not otherwise coerced by me or others to enter into a contract. In other words if a contract is voluntarily and knowingly entered into, it should be enforced everywhere. 2. I would let each state decide if the wanted to issue contracts for marriage but if they did, they would have to allow everyone to have one equally. I would not set a national standard because in the end, it just is not part of the business of the United State's Government. It is a local issue to be decided on a state to state basis.

The issue  also presents a divide in the very middle of America's heart and heartland, but it is an important issue. The hypocrisy on both sides of the issue is as ironic as it is unspoken. The anti-marriage equality group do not want to give people the right to contract with whomever they choose but they want to allow the right not to contract to be observed. The pro-marriage equality group wants to allow the right to contract but not the right to not contract. Stupid is as stupid does.

On this issue I have just one more thing to say. To all you "Christians" who do not "support" marriage equality: Do you serve divorced couples? Do you have baby showers for out of wedlock moms? Do you allow people who have committed adultery to later marry in your establishment? Do you serve people who do not make their child support payments? Do you serve people who have stolen from others or even killed others? Is that not supporting that lifestyle which is directly DIRECTLY forbidden by the TEN COMMANDMENTS?? God did not tell Moses that marriage was between a man and a woman but he did say don't kill, don't commit adultery or fornication, don't steal. How is it your "religion" forbids you from servicing homosexual couples but not those committing acts specifically forbidden in the Ten Commandments??

Got news for those types (Mr. Huckabee, Santorum, any number of shop owners and others who want to do away with homosexuals) of politicians and business people: YOU ARE BIGOTS. YOU ARE PREJUDICED, and no amount of joining together to present that view will absolve you of YOUR sin of hypocrisy.

Justice Delayed, Justice Not Served: State of Arizona v. Milke Finally dismissed. After 22 years on Death Row.

A perjurious lying cop (and a sex pervert) and a prosecution by omission. A SCATHING judicial opinion by one of America's most conservative judges and appellate panels and a wasted life. GOD DAMN IT just because they are cops DOES NOT MEAN YOU HAVE TO BELIEVE THEM!!! Guys like Detective Armando Saldate are a pox on the soul of American justice. The Maricopa County (AZ) Prosecutors office is and has been a stain on the criminal justice system for 30 or more years.Many Judges have no guts when it comes to disbelieving cops. (Especially when their reelections depend o PBA endorsements). 

Twenty two years ago, the State of Arizona put a young mom on trial for killing her child. Not a single piece of physical evidence linked her to the killing. Only an oral confession to a cop not recorded and not true. She denied making the confession. Not taking it back, NEVER making it!! The actual killers denied her involvement, worse yet the prosecutor knew his cop the one who took the confession was a liar and sex perv who had used his badge to take advantage of a woman once. That he had lied to supervisors and under oath numerous (NUMEROUS) times. Nevertheless they tenaciously sought to kill this young mother. The never told anyone of the detective's (one Armando Saldate)penchant for lying under oath. Not the trial judge, not the jury and certainly not the defense. The case is an abomination.
Well today the case was finally dismissed. Finally.  

Wanna know the SECOND worst part of this? Even though the 9th Circuit Court of Appeals recommended charges against Saldate and others, NO ONE WILL BE PROSECUTED!!! NO ONE!!!! Can anyone say special prosecutor? Thank God for the Civil Rights statute and for the lawyers who will go after the money to give this woman a life at 47 but still what a waste of life, money and good will. Could you imagine being one of the jurors who believed that man and believed the prosecutor and now realizes that they sent a woman to her death??? Wanna know why the Pope is against the Death Penalty? Because only God should make the decision as to who lives and who dies. She waited 22 years for today. What a waste.

#RE2pect: The Captain Steps Away

Today was the end of the Derek Jeter era of my NY Yankees. If it couldn't have ended in NY then I am glad it happened in Boston. That was the city where I became a Yankkee fan. It is the home to half the greatest baseball rivalry RedSox v. Yankees. It's where I saw Derek play. 

The send off was magnificent, and you can look it up. You can look up his wonderful final game at Yankee Stadium last Thursday night, you can look up his stats. What you cannot count is the enormous amount of smiles his play created. You cannot count the kids who have decided to turn away from steroids and drugs b/c of Derek Jeter and you cannot estimate what would have become of the game of Baseball had a kid from Michigan not come back to his birthplace and handled the hardest city to succeed in sports after the strike debacle, and the during the "Steroid era".

Competitive, and talented, but at the end, what he had mostly, was Class. He had it in kilograms. He had it in tons. He shared it with the rest of us. He didn't jam it down our throats, he didn't say "look at me! I'm the one to emulate." He just did his thing as best as he could in quiet dignity, everyday, and in doing so, taught another generation about "the code". What code? The code of being a man: work harder, be responsible and take responsibility, take ownership. Treat others,ALL OTHERS, as you would wish to be treated, laugh, know whom to trust and remember that a secret stays a secret when only one person knows it. Conduct yourself in all matters, as if everyone is watching, do not burn bridges, be loyal to a fault, be honest, be humble, be appreciative.  Know your value but do not wear it on your sleeve, listen to others, set the example and set your personal bar high, remember, your mom is watching, but moreover, so are the children, the men and women of the next generation.

Respect, the game, your team, your teammates and your fans, your woman, your kids, and mostly respect yourself, and you too will earn #Re2pect. Thank you Captain.

Friday News Dump: Obama Justice Dept. Will Ask SCOTUS to Support Marriage Equality

Good news for civil rights advocates, the Justice Dept. Civil Division through the Solicitor General's office will urge the Supreme Court to grant full marriage rights to all adults. From where I sit this is good news for a bunch of reasons. 

1. While I prefer the government to stay out of the whole marriage business, if they are going to grant privileges to people who contractually agree to live with each other and potentially raise families, then those rights and privileges should be available across the board. 

2. Additionally, there are personal rights that are denied a non married partner that that can and has caused great emotional pain and which are just unfair .i.e. When families reject a homosexual or transgendered person, and that person begins a life with someone else but then gets sick and dies, the family will often step in and bar the partner from seeing their loved one in the hospital or in deciding anything about the funeral etc.

3. Every time we expand privileges to others, we protect our own and we encourage further assimilation. I already do not see people based on thieir skin tone or sexuality I don't look at somebody and say "see that black gay guy over there?" I simply say "see that fellow over there in the red sweater".  When we begin to stop seeing the things that make us physically different, we can believe that prejudice is dying. 

I don't say this often (and for good reason) but "Bully for you Mr. Obama!"

Hattip: Brian Williams NBC Nightly News.

More on Holder Decision to Step Down and Some Thoughts on Who's Next

Now that AGOUS Eric Holder has decided to step down, there are many things to say about one of the longest and tumultuous tenured US Attorney Generals in History.

The negatives abound: Fast & Furious; Contempt of (and for) Congress; Authority for Killing American Citizens abroad; the foot dragging on the IRS scandal to name a few off the top of my head.

It is tougher to really point up his positives, but his decision not to defend the DOMA; his office's record on Civil Rights and Voting Rights although checkered (a rush to judgement in Ferguson and his failure to pursue the New Black Panthers voting suppression case) is a bright spot in a controversial career. I respect holder for what he didn't do: He turned away from the Stupid Pornography prosecutions of the Bush Administration, and he tried but failed to bring the terror trials to NYC. I firmly believe Guantanamo is and always has been wrong and frankly it lends a blot on our International reputation. Had Holder been successful, there would be no Guantanamo and most if not all the detainees there would be convicted and serving time. Of course his cover for Obama's dreamers is also something I support. In this Administration, finally his willingness to stop some of the more draconian Bush policies of using sentence enhancement arguments to force pleas and agreeing to substantial reductions in drug sentencing laws are real accomplishments.   in this time in our History, I doubt sincerely one could have done a better job. That is not a glowing endorsement of Mr. Holder, more than an acknowledgment that it could have been much worse.

As for a replacement that could get through Congress, Soliciter General Vermincelli would be my choice. He is bright, hard working, and while occasionally awkward, could bring a different less political bent to the office potentially healing some wounds with Congress. An Italian American AG would be nice too. Deval Patrick would make for a good choice in that he too could work with some of the key players in D.C. And possibly mend a fence or two also. Both would likely follow Obama's agenda which while for me that isn't a positive, he did win the election he is entitled to his cabinet. Better to have somebody who could work with the Capital building than be hated in it.

BREAKING NEWS: AGOUS ERIC HOLDER TO RESIGN!

The New York Times is reporting that Eric Holder the Attorney General of the United States of America is going to announce his retirement from office (an office he has held for 6 years making him the longest serving Attorney General in decades and the fourth longest serving in American History) tomorrow.
I hope to discuss some of his accomplishments and failures later today. For now, one if not the most controversial US Attorney General's in US history is resigning tomorrow according the the Grey Lady.

A New Beginning

Hi folks. It's been nearly 100 months since I was last here. A lot of stuff has happened, some of it quite sad (you know deaths loss etc.) but I'd rather dwell on positive stuff so here goes:

I AM A PARTNER IN A GROWING LAW FIRM!!!!
That's right, I am now a Partner and Trial Lawyer at the Firm of Raiser & Kenniff. We have locations in NYC and in Nassau and Suffolk County's on Long Island! I will still be handling cases in all federal courts and in NY state courts and will still focus on federal and state criminal law and Civil Rights Litigation, but I have 3 new partners and about 8 associates and another half dozen staff to back me up!

If you want to reach me I am at
Raiser & Kenniff PC
300 Old Country Rd.
Suite 351
Mineola, NY 11501
Phone 516-741-3400 (direct line)
Cell 516-316-1519 I prefer text messages.

I will be around here more too!! I want to build this blog back into the " juggernaut" it once was. :)

It's Amateur Night!: 34 Arrested For DWI In Nassau And Suffolk Counties

I have all kinds of trouble with DWI laws. For starters they are based on bad science. Secondly they are arbitrary. I have driven behind someone who blew a .24 on a breath test and then drove for an hour better than the so called sober people in Nassau and Queens County. I have a problem with any numeric crime based on faulty science determining if someone ought to be arrested without that person doing something wrong. (We are talking about checkpoint arrests where the only "crime" is the the breath test reading). I get tired of the "bleed em and plead em" mentality of much of the bar and the entire DA's office. I hate how DWIs have destroyed the Fourth Amendment and the laws of Evidence. Mostly I hate how it destroys people who are convicted of the crime. It is what I call "stupid crime" as there is absolutely no upside to it.

Nevertheless, it is New Year Eve. Every cop on Long Island is looking to make DWI arrests. By now you ought to know that if you are one hundred and fifty (150lbs.) pounds, you are impaired by alcohol after 2.5 drinks in 2 hours. Please tell me how you get arrested for DWI? You really have to be clueless.

In a number of these cases, people were killed or badly maimed. How hard is this really? If you are drinking, Don't Drive!! Find a designated driver, take a cab or a limo. Take Mass Transit. Stay HOME!!

Amateurs. Really.

Hattip: Newsday (subscription may be required)

Bad Cases Make Bad Laws: NYS Ct of Appeals Sustains the Martin Heigden Verdict

It was brought to my attention that one of my previous posts, where I predicted the Martin Heigden verdict convicting him of Murder (depraved indifference) would be overturned, in fact was NOT overturned. I was wrong about justice being done in the case. I am late acknowledging it but I did want to up date the information.

 The decision in my opinion is a poor one, that further muddies already murky waters. That it was a split decision and one in which the majority cautions should be limited to circumstances such as the ones here, further shows how bad this decision really is. Nonetheless, Nassau DA Rice prevailed.

The majority decision is, as the dissent points, out absolutely devoid of the facts as presented at trial. To say Heigden was able to discern where he was or that he was in effect playing chicken with oncoming autos, is just not in keeping with science or even the DA's theory of the case at trial (Heigden was extremely intoxicated, driving on the wrong side of the road and ultimately killed a flower girl [decapitated her] and a limo driver coming from a wedding. The case was gruesome). The DA usually argues that drunks drive toward light and that driving toward the light is in part proof of their intoxication. While that fact does not lead to a failure to have requisite intent in and of itself, and thus does not clear them of the charges of DWI, the way DA's argue the matter in court is that the "condition" of driving toward the lights is not a decision but is actual proof of intoxication. Here however the majority opinion is that in his drunken stupor Heigden was actually able to figure out who and which car he would take on. In other words, they ignore the fact that he would naturally drive toward a bright light and use the fact that Heigden did drive toward oncoming lights as proof of a voluntary act, as opposed to it being an involuntary response to being intoxicated. That was not the way the DA argued those facts at trial.

As I explained in the original piece, the best way to explain a depraved indifference intent as opposed to not competent to form the requisite intent based on intoxication is the following comparison: If a person throws a 16lbs. bowling ball out of a tenth floor window onto a crowded sidewalk and kills someone, but couldn't care who, that is depraved indifference. If that same guy purposely throws the ball out the same window, but thinks he is in a bowling alley and that the people below were pins, that person does not have the requisite intent to commit depraved indifference murder. The majority used supposition against obvious fact to reach a decision it liked, but one that is unsupported by the facts or the science of DWI.

Hat tip: @ericfphillips on Twitter.com

"You Know Who Else Spoke Arabic? Osama Bin Laden"*: Sh*t the TSA Gets Away With When They Violate Your Freedom!

I was just about to give up on finding anything to blog about when I came across this little decision out of the US Court of Appeals for the 3rd Circuit. In George v. Rehiel et.al.  Dkt.:11-4292 (3rd Cir. 2013)( a Civil Rights case brought under 42USC1983)  an American college student of Middle Eastern Culture at a University in California was boarding a plane in Philadelphia (heading back to school) and under went an "administrative search" (which is a recognized "exception" to the 4th Amendment) at the boarding area. It is an everyday bother for airline passengers but it does keep us safer and it is usually minimally intrusive, that is until the Third Circuit decided to throw America's new obsession with paranoia into it.

During the search, the TSA employees (who seemingly have absolutely no training in law)  found handwritten flash cards that included the Arabic/English words for everyday language as well as for some words that if SAID ALOUD, would trigger an arrest in an airport (words like Bomb, Terrorist, Explosion, Attack, Kill, Battle, To Wound, to Kidnap). Now the fact that he was a student and one might want to know these words if involved in Mid Eastern current events did not matter. That he wasn't speaking the words but that the cards were in his carry-on so he could study didn't matter either.  That after finding the flashcards and swabbing everything around for explosives and finding zilch well that still did not matter. As far as the TSA was concerned these flashcards (and a treatise a college kid might read on the failures of American Interventionist Foreign Policy) required he be detained for a supervisor to question him AND for TSA to call the police.
The supervisor came and for 15 minutes more she stalled Mr. George in a  TSA security room (which by the way he was not free to leave) asking inane questions such as:
Q: Do you know who is responsible for 9-11?
A: Osama Bin Laden

Q: Do you know what language he spoke?
A: Arabic

Q: Do you see why these (flash)Cards are suspicious????????????

WTF????? Really???? Needless to say Mr. George was arrested, cuffed, detained for 5 hours, and missed his flight. Yes, if you were wondering, Philadelphia is part of the United States of America...

Mr. George and his attorneys sued the TSA agents, the cops, and FBI agents (who after five hours arrived, questioned the kid another 30 minutes and determined that he was not a terror threat) for violating his civil rights: His rights under the Fourth Amendment, Free speech and further sued for false arrest false imprisonment etc.


The question before the court was: did the TSA agents act outside of their employment authority by detaining young Mr. George, and if so did they have a reason to know that acting that way was against an established rule supporting the rights to privacy and speech.

The court never reached the knowledge element because it ruled that given the "totality of circumstances here could cause a reasonable person to believe that the items George was carrying raised the possibility that he might pose a threat to airline security". 

Re-read the quote from the decision that I highlighted above. Have you ever seen a more tepid comment?
"...could cause...to believe...possibility...might pose." Gee he could have been carrying a New York Times and all those words would be in it. It is indisputable he had the right to have those cards and that he had a right to have and read the book on the failure of American intervention in the Middle East.  Does it really raise a right to detain someone for 30 minutes or even 5 minutes once they found he had no explosives or contraband on him? Do you know what it feels like to be detained at an airport in an tiny room that you cannot leave. They have your phone? You can't call out check email tell others what's up? WTF??? Then they called the cops who arrested him and held him handcuffed in a cell for up to five more hours!! The court held the cops arrested him on their own.  In other words a cop came up and not on the say of the TSA he just decided to bust the kid for five hours without being asked because presumably he found probable cause to make an arrest!! Based on flashcards and a book? (In fairness to the court they did rule that you cannot arrest someone because of the books they read. Evidentially flashcards are far more dangerous...) The court held it was speculative that the TSA ordered the arrest. I am sorry but I don't see that at all, of course that is one of the myriad of reasons I will never be a judge. I cannot suspend my disbelief for a long enough period to excuse people when they act like idiots in the name of the USA.

I am accustomed to government paranoia. Look we are all gonna die someday but really can't we go as men and women and not as frightened sheep? Are these judges for real? Are they going to hide behind 9-11 to support clearly illegal conduct by federal agents for the rest of our lives?? Liberty does hang in the stakes. If the Courts will not rein in the government when it clearly goes beyond our ever more liberal rules for destroying our Constitution, then we are lost.

That the lead judge was a Clinton appointee not some Neo-con Bush appointee. So if you are learning Arabic, and studying Middle Eastern culture, you better watch out...you just gave your government the right to detain you based on what they unreasonably fear might be a possible preparation for an attack or maybe just a learning thing but they are really unsure but they don't need to be any more sure because that could cause them to not detain Osama bin Laden or the ENGLISHMAN who was the shoe bomber or THE LATINO that was an underwear bomber. If you understand any of that, you MAY qualify to be a Federal Judge...

Sad.

H/t: Justia (US Third Circuit Court of Appeals Opinion Summaries.) and Rueters.

*The title of this post paraphrased the questions but the quotes here are from the decision and are culled from plaintiff's complaint.)

Opps She Did It Again!: Nassau County NY District Attorney Kathleen Rice Blows ANOTHER "Flush the Johns" Case

In a now fifth case decided by a different Judge, Nassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidenceNassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidence.
Last October, right before the election (of course) Rice used county money to run one of the dumbest sting operations in her history of dumb cases. It was called 'Flush the Johns". All it has done so far is flush good tax money down the toilet. Wasting literally hundreds of thousands of taxpayer dollars on what was basically a publicity stunt, Rice ran a sting by having police women pose as prostitutes on Craigslist and Backpage.com so that they could lure men into hotel rooms and arrest them. She then put their names and pictures into Newsday (which also should be ashamed of itself) and ruined marriages, professional careers and reputations.
Last week Judge Sharon Gianelli ( a fellow Democrat) dismissed two more cases and then there was one in November that went down the tubes. Now Judge Susan Kluewer (another fellow Democrat) dismissed this case for lack of evidence after a man was charged after entering a hotel room with his buddy (who claimed he had to stop and drop something off to the person in the room). The man neither called the alleged prostitute, nor did he negotiate a fee or pay said fee. In other words the case was the only thing in the room that sucked!! (Sorry I couldn't resist). The man's wife instituted divorce proceedings and the case has destroyed him. There was no probably cause to arrest this man, despite what Rice's overpaid PR guy says. Salvatore Marinello said his client is going to sue Rice and the Nassau County Police for False Arrest and Malicious Prosecution. Even if he loses it is going to tack more tax money onto this losing proposition to defend the county...
Rice just won re-election. Nevertheless she should step down. She and her crew of carpetbagging attorneys and nepotistic appointees have done nothing to protect Nassau and worse yet, she has wasted our dollars, inflated her budget all so she can run for higher office. Kathleen Rice is a disgrace. Shame on her, and Shame on Nassau Voters who supported her re-election.

Related Post: Flush Nassau DA Kathleen Rice: Her Flush The Johns Sting Goes Down the Drain

Is There a War on Christmas? Yes! The Combatants Aren't Only Who You Think!

Every year for the last 20 it seems there has been a conversation about a "war on Christmas". My liberal friends think my Christian friends are crazy, and my Christian friends think the Libs are going to hell...I think they are both combatants against the holiday and to a large effect toward religion as a whole.

You see, the war on Christmas isn't about saying Happy Holiday v. Merry Christmas. I usually great groups with a Merry Christmas and Happy Holiday! Why because it is my holiday and likely theirs as well. It might not be Christmas they celebrate, but we are often celebrating the same thing, the coming of Christ. The coming of a savior.

The war on Christmas, is not when stores say HOLIDAY SALE. In fact I prefer Holiday sales because Christmas sales commercialize the day. While we are on the topic, XMass isn't part of the war on Christmas either. X is for the Greek "Chi" the first letter of the Greek word for CHRIST. Mas is the latin word for Mass. Go figure, we have been using the X to signify Christ (abbreviate the word) since the 10th Century. Go Figure. So if you are looking to make a big deal out of something, could you actually have something that has no historical significance??? How about you actually look at a historical document once in a while?

So where is the war? Well the last paragraph is a good find for it. The War on Christmas, is in the idiots who make the garbage up just to have the fight.
For example: The School on Long Island that changed the words to Silent Night so that it ignores the religious foundation of the song. Really? The did it so as to not offend others. If you do not want to offend others, don't do the song. Why however would anyone be offended. (I mean anyone with a mind?)

Of course I grew up in a community where Christians were in a minority. Jewish neighbors were outraged when we performed a Winter concert where non secular music was featured. We sang age appropriate songs and we learned the music. Catholics new the religious significance of the Christian music, but not of the Jewish music (what's a dreidel?) The opposite was true as well. in order to sing the music with feeling, the stories of the music were related by the kids to each other like a book report. WOW did we learn a bunch of stuff. I learned about the oils that never ran out. The Jewish kids learned why the eve of Christmas was so important. We learned our religions were alike in many ways. We also learned that many parents were idiots and bigots. They would not let their children sing the Christian songs or say the words Jesus or Christ. Some wanted their children to quit the choir. Talk about closed minded. The few Catholic kids in the choir felt terrible for our friends. We felt embarrassed about our songs being bad for our friends, we were angry too because these were songs we loved.  Some Catholic parents thought about a tic for tac response. It was very uncomfortable. Our parish Priest called the Rabbi. These two men of God, were completely flummoxed. What were these parents talking about?

We learned that the parents that began this stuff were not "regularly" attending religious services. We learned that both religious leaders understood the importance of religious music in teaching music to others and that most if not all of the greatest classical music was religious based. I also learned that our Priest and the Rabbi got together regularly were friends and that the Rabbi liked classical music especially Vivaldi!!

What was so important was that while we got protective about our "turf"s the parents of our community lost the actual meaning of the holidays. We were all waiting for the same thing. We were waiting for the coming of the Christ. For our Jewish friends, it was a Coming, for the Catholics it was a Second coming, but our religions wanted the same thing. They wanted Salvation.

I wondered how my Jewish friends dealt with the fact that "Santa" wasn't going to visit them. My father explained that pretty well. My dad embodied the spirit of Christmas. He told me that Santa was not a person, he was a spirit. Like the Holy Ghost (I don't think he agreed with the whole Holy Spirit thing but that is a story for another day) Santa came to us because we believed in him. The Holy Spirit came to the Jews when their fuel held out for eight days and in honor of that miracle our Jewish friends gave gifts to their loved ones like the gift God had given their ancestors. Dad would have hated all this war on Christmas talk. He would have been disappointed that someone would think to say Santa was white, or that Christians would be so hostile to others enjoying the Gifts of the season. Dad would do all kinds of things from great decorations to very private giving. I learned that the left hand should never tell the right hand what it was doing. I learned that being a Secret Santa was far more fun than getting credit for what you do. I learned that God loved me, and that He would forgive me, and that the Love of a Father ran very very deep. I learned that when one fought about things like Christmas that they denigrated the meaning of the word.

So Hannity, Fox, MSNBC, O'Reilly, the ACLU and the atheists are all in a war that doesn't matter. Christmas does not live in their debate or in the word Christmas or even in the Cress on the Village Green. It lives in our hearts. It lives in the stories we tell each other, the memories of family, the spirit of hope. When you are fighting about it, you show you don't understand it.

Today is my Dad's birthday. He was named for our Savior. Salvatore means savior in Italian, He would have been 81 today, but I lost him 13+ years ago. But he lives. Especially during this season. I miss him everyday, but I think of him everyday too, and that helps me to miss him less. I share his wisdom with you, so that you may share it with others. Merry Christmas and Happy Holidays to you all, and to you Dad, Happy Birthday in Heaven. I love you.

A Little Good News For a Friday Before Christmas: Innocence Project Wins Again!!

I don't want this to be a blog that only criticizes. I think there are some good things happening in criminal law. One of those good things is The Innocence Project. Started by Barry Scheck and Peter Neufeld, the defense attorney DNA Gurus these guys work with lawyers and students to undue injustice in the criminal justice system.
This week, Barry did it again. He won the freedom of  Gerard Richardson, a NJ man who was wrongfully convicted of Murder 20 years ago and has been rotting in jail doing time for a crime he did not commit.
Please consider a donation to the Innocence Project. Merry Christmas Mr. Richardson, and congratulations Barry. Thank you for keeping the dream alive.

Breaking News: Newsday Special Investigation Into Police Misconduct on Long Island!

Newsday has broken a major investigation into police misconduct and its failures to be properly investigated or punished.  Police misconduct puts good citizens at risk and worse makes it very hard for good cops to do their jobs well. It corrupts a system.
Nassau and Suffolk have had this problem for a number of years. Whether it be the band of thugs that run the land of NO on Fire Island, or the insanity of the Nassau cop who beat and shot a taxi driver for no reason in Suffolk, or the many instances of testalying and other misconduct, it has to end.
I have regularly called for the institution of a Civilian Review Board with teeth. Now is the time. We need it here.
What do you think? How do you feel about a Civilian Review Board?

One of the Things I Hate: Using Hate Crime Statutes to Punish Non-Hate Crimes

"During the debate on the NY Hate Crime bill, I was against the cause. It isn't that I do not think that there is something inherently wrong with a person who hurts another out of hate or prejudice, it is that : 1. I do not like to punish people for their thoughts, and 2. I know lawyers well enough to know that they cannot stand to see a statute NOT get abused.

As I predicted now comes my friend Tom Spota (DA of Suffolk County and I am not being sarcastic I've known Tom since his days as an assistant district attorney in the 70's and I really do like him even if I don't always agree with him)who seems hell bent on abusing the statute to get a greater sentence for a person who has no hate (as we define the term generally) for the person they have allegedly hurt.

Lisa Ferkovich aka the "Sweetheart Scammer" basically charms old men out of their pensions. If true, she is despicable. She evidently according to Spota picks old men b/c they are easier to scam. Hence because she targets a particular segment of society, she must be involved in hating that segment and is open to an enhanced sentence.

A close look at Article 485 of the NYS Penal Law shows that while Spota may be right about how he CAN use the law, it is far from how the law was meant to be used.  The Hate Crime Statute begins with a legislative finding (I wish more laws did this) That finding is part of the law (as opposed to just a legislative history. In part it reads:

"The legislature finds and determines as follows: criminal acts
involving violence, intimidation and destruction of property based upon
bias and prejudice have become more prevalent in New York state in
recent years. The intolerable truth is that in these crimes, commonly
and justly referred to as "hate crimes", victims are intentionally
selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation. Hate crimes do more than threaten the safety and
welfare of all citizens. They inflict on victims incalculable physical
and emotional damage and tear at the very fabric of free society. Crimes
motivated by invidious hatred toward particular groups not only harm
individual victims but send a powerful message of intolerance and
discrimination to all members of the group to which the victim belongs."

Reading the first sentence one gets the idea that the legislature was trying to limit the use of the statute to our understanding of hate. Prejudice and Bias. So far so good. The sentence that begins "Crimes motivated by invidious hatred toward particular groups..." also fits the definition of a hate crime however in between, there is the line "... victims are intentionally selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation."

That segment if read as part of the entire document seems to be consistent with the idea that one must have an invidious hatred in targeting a group however that is not how Spota wants to use the law. He wants to say that the targeting in and of itself is enough to trigger the enhancement. In other words he perverts the statute by suggesting that the targeting vitiates the need to prove "actual hate". The sad thing is that some courts (mostly in Queens County) see it the same way. I humbly think that if this is how the law is going to be used, then the whole thing needs to be thrown out.

Hate crimes are hard enough to define now. Sure there are easy ones, the KKK attacks a black man and his family for instance. Pretty easy to follow. Less so in a bar fight where someone calls some one a cracker or a "N" word in the middle of the fight. Heat of the moment or invidious hatred toward another group?

Assuming that the "reason" someone commits and act is a valid use of a sentencing enhancement, shouldn't that reason be clear? Does someone hate another group because he or she uses inappropriate epitaphs  in the heat of the moment?

In the case of Ms. Ferkovich, does she hate old people or old men just because her scam is in part to target them? I do not think so. I think she does target old men because she is not going to succeed in targeting younger men (Her picture is not flattering) and they may not find her compliments as flattering or they may see through her or who knows maybe they do not want to have her as a companion. I do not see this as a dislike of older men. I see this as part of the crime itself, but it is a targeting. How it differs from her targeting men in general is unclear.

Put a different way, does a prostitute commit a hate crime because she targets johns??

IF the article is correct and complete, there appears to be no hate. If Spota is right then there needn't be any. If the law's general use is to be based not on hate but on targeting then it is a stupid unnecessary law. Every crime has a target. If he wants tougher sentencing he ought to lobby the legislature to get it. Abusing the hate crime law is wrong. The problem is, if she is guilty it is hard to find any compassion for this woman. That doesn't mean we should pervert our laws in order to get her for more time.
Funny.., I think Spota is over 60 now...

Let me know how you feel about the Hate Crimes Statute and this use of it in the comments below.

No Seat For YOU!! :Dept of Homeland Security (DHS) Stops Witness From Flying to Trial to Testify Against...DHS!!

Well this is one way to win a trial. I have to remember to teach this in my next trial advocacy class...

Going Rogue: Who in the Hell is Watching the ATF??

Okay I am back, for a while I guess. Somehow my long term writers block seems to have lifted. Lets hope it stays this way for a while.

We have spent most of the year looking at how the NSA is really an internal spying organization run by former military men whose level of paranoia while likely defensible is waaaayyy to high to actually run a spying agency in a democracy. Thanks to Edward Snowden, we now know that the US government has since 2001 been doing an really good job acting like the KGB of 1955. Now this comes as no surprise because for a nation that prides itself on talking about civil rights, we suck at providing them to anyone who isn't in our view when we look in the bathroom mirror.

Nevertheless, while the NSA, CIA, DEA, FBI and main Justice (Just us?) Dept. have all been seriously scrutinized these last few months by the libertarian (and only reluctantly by the main stream) press, our old friend of merry makers, the original set 'em up and blow them up gang over at the AFT (Bureau of Alcohol Firearms and Tobacco) (remember WACO? RUBY RIDGE?? FAST AND FURIOUS??????)  have been on the down low... until now.

Seems that the agency hasn't had a real director since 2006. That is 7 years... for the last two years the "acting director" was also the full time US Attorney in Minnesota!! All this lack of supervision has given the merry men of the ATF way too much time on their hands. Hence they have come up with all kinds of ways to screw up on our dime. (Actually on our $1.23BILLION DOLLAR dime)

Lets lookie see what they have been spending money on...:
Well they have been picking on mentally challenged men and encouraging them to have tattoos of Giant Squids Smoking a Joint put onto their necks
They have encouraged robberies so that they can then buy the stolen merchandise back and lock up the guy who stole it, except most of the robbers never stole before the ATF decided to give away money by OVERPAYING for the stolen stuff
Oh yeah they like over paying for stuff, so they offered to buy guns for more money that they could be purchased for at a place like Dick's sporting goods... so even the mentally challenged figured out that it was worth it to BUY THE GUNS Legally and sell them for a profit to the MORONIC Special Agents...
Then they discovered that teenage boys like sex...SO  They have been trying to get teenager boys to buy guns and drugs in the vain hope a particularly sexy "special agent" will have sex with them. (Too bad she didn't twerk, maybe the mainstream media woulda picked up the story.)
Finally they are slobs too.

I hope there is a Republican Congressman who sees this. WANNA FIND A BUDGET TO CUT?? Start with the ATF!!!!

Hat Tip: The Atlantic.com

Flush Nassau DA Kathleen Rice: Her Flush the John's Sting Goes Down the Drain!

• Flush the Nassau County District Attorney!! Flush the Johns a waste of money!! Acquittals and Evidence Suppressions open Nassau County up to Millions in Law suits.
  
  Hey everyone, Remember about 5 months ago when Kathleen Rice was running for re-election she had her gestapo I mean her investigators and the Nassau County Police Vice Squad set up a bunch of guys and she then plastered their faces all over the world on the Internet and accused them all of patronizing prostitutes? Yeah? Well Guess WHAT? That's right, the allegations don't hold water!!!!
  Newsday reported that yesterday Judge Sharon Gianelli Acquitted a guy last month and dismissed charges against another yesterday because the proof (if you can call it that) turned out to be HEARSAY!! Yeah Nassau Da Rice and her merry band of prosecutors used a detective that only heard one half a conversation to testify about what another cop told him about the other half of the conversation. NOT ONLY THAT: That cop allegedly spoke to over 30 men and couldn't remember one convo from another!!!! All that money spent and time, ruination of lives and RICE Can't prove her cases!!
  Now I don't want to get down on the young assistants DA's that are handling this mess. I mean they can only work with what they are given, but really the bosses who approved and implemented this investigation and posted the pictures of these men before they were convicted should lose their jobs. In fact, Rice should RESIGN. DA Rice continues to embarrass this county and has destroyed what was a reasonably good DA's office before she and her carpetbagging CRONIES from Brooklyn's DA's office took it over. Too bad these decisions didn't come to light BEFORE the last election.
  Hat Tip:http://www.newsday.com/long-island/nassau/flush-the-johns-prosecutions-suffer-setbacks-1.6598543

Local Doctor Busted by the FEDS!!

• Local Doctor Busted by Feds:
  
  The FBI and DEA continue to harass local Doctors and pharmacists in a vain effort to take legal pharmaceuticals off the market. Today Dr. Carmine Mondarano of East Islip was arrested and released on a $500K bond accused of proscribing 308 Thousand pain pills in a 3 year period. Sounds like a lot, but is it really?
  Doctor works a five day week see's 4-5 patients an hour that is about 30-40 patients a day or about 200 patients a week. Although the Doctor specializes in immunology, he also is a Suboxone specialist (has a special certification to administer that and other pain meds) Assuming half the patients require a 30 day supply at 3-4 pills a day that is over 127 Thousand pills a year. Now this is a particularly busy practice with a doctor who is in his early 60s and is beloved in his community. Most of these patients receive a month supply and 2-3 renewals (because insurance will not approve a 90 day supply.) Assuming that most of these cases suffer from chronic pain, that is not a bad assumption. Hence 127 Thousand is a low number in a year. The real question is what percent of his patients required these pain killers, Did he actually examine them on a regular basis, and why did it take SOOOO long to investigate him when a doctor is regularly audited and this man has passed numerous audits? This is the kind of questions we as potential jurors need to ask ourselves when we see these types of numbers thrown around by government investigators.
  The Feds especially like to use numbers to astonish jurors but do not let the final numbers surprise you. Do the math yourselves. Similarly prosecutors like to play games with words. Be careful about listening because the truth is often in what is not said. Just because it comes out of a "Special Agent's or detective's mouth does not render it gospel.
  H/T:http://www.newsday.com/long-island/suffolk/northport-doctor-charged-with-illegal-oxycodone-distribution-1.6594779

When Will America Figure Out What a Criminal Justice System Does: Zimmerman, The Right Verdict

When will America figure out what a criminal justice system is supposed to do?

Our Criminal Justice System is meant to determine if : A. Someone has committed a crime and if so B. Determine what is the least restrictive means to accomplish the goals of sentence.

In Florida, George Zimmerman has been acquitted of the crimes of Murder 2* and Manslaughter so the system has accomplished the first part of its mission and has negated a need for the second part. Yet much of America is up in arms because the decision isn't one they like and even if they rationally agree the verdict is correct, they are angry at the system because they didn't get what they wanted from it: a guilty verdict. In the minds and hearts of these people the "know" George Zimmerman killed, wanted to kill, and purposely incited a confrontation so he could kill a 17 year old boy named Trayvon Martin.

That what they know in their hearts to be true, didn't get satisfied is killing them. It makes them say stupid things like: "It isn't safe for a black boy in America." or The black man cannot get a fair shake in an American court" or "The system is rigged against the poor person in a court." No, No and NO! This system for all of its flaws worked in the Zimmerman case and the problem is not with the Criminal Justice System but with the Media which chose up sides early on in a truly local case that should have had no national interest. The Liberal Media wanted a poster boy for gun control and all Media wanted more viewers.

Not a whit of what was being reported played any part in what the investigation or trial was about. (In fact the media forced the arrest. Clearly the way the case played out proved that the original decisions not to arrest Zimmerman was correct. That would not have served the purpose of those who wanted gun control.) It was further not a referendum on race relations in America. A poor black kid can walk as safely in a community as a rich white kid with a pack of Skittles and a Sprite without having anymore fear than normal. This case did not give white people a license to kill black kids, or allow anybody to get away with ANYTHING.

Do you know why? Because I do not care if the jury were made up of 6 males females whites blacks or Martians, if they followed the law, and applied the facts they heard to the law that they were given, THERE WAS NO OTHER VERDICT TO RENDER BUT NOT GUILTY. Look this case was not about who followed who (it might have been had the defense imposed a "Stand Your Ground"defense) it wasn't about black or white or if one guy was a hater and the other a thug or punk or even an alter boy. It was about one thing only: At the time he pulled out his weapon, was George Zimmerman in imminent fear of being injured or killed? If the people fail to exclude that issue, they lose. Remember, it isn't a question of was it likely he was in fear but probably wasn't. The Prosecutor had to prove Zimmerman did not act out of that fear at the time he shot Martin. He had to prove it Beyond a Reasonable Doubt.

The proof in the case was not good for the prosecution once the self defense issue was raised. Unlike in the "Stand Your Ground" defense (hereinafter SYG) if the defendant is the "aggressor" he cannot win if the only reason he shot his victim was so he could stand his ground. It didn't matter that Zimmerman followed and stalked the boy, that he didn't go back in his car when the Police 911 dispatcher told him not to leave his car (he already had left his car) it didn't matter that he had profiled Trayvon. None of that mattered any more than Trayvon didn't have a weapon, was not doing anything wrong at the time nor that he would never see his parents again (or that they would never see him.) Even if it was the most unjust thing ever, if the People of the State of Florida fail to prove Zimmerman was NOT acting in self defense, none of it mattered.

Now you could argue that the facts I laid out above may show a pre-dispositon for Zimmerman to be a killer than a victim, but those facts had to overcome other issues such as: No one knows whose voice was calling for help on the call, that it appears Zimmerman had head wounds, One of the prosecution witnesses saw Martin atop of Zimmerman during the fight. These issues preclude any other verdict than not guilty beyond a reasonable doubt.

Now all of that may make you feel angry. Here is the solution: deal with the idea that the only thing that can come from a prosecution like this is a not guilty verdict. That is good because we have another system of justice that is perfect for giving people their day in court and doesn't deprive one of their liberty while their case is being heard. That is  the civil court system. But for the Media, that is where this case would have gone and it is exactly what should have happened.

Mischaracterizing The Checks and Balances In Our Constitutions Framework: Justice Scalia's Dissent in Arizona v. USA

As promised I have had a chance to read, reread and digest the Supreme Court ruling on Arizona v. United States where a majority of the Supreme Court ruled Arizona's controversial Immigration law a\k\a SB1070 as unconstitutional.

You can read the original decision or get the cliff notes here

What most caught my attention however was not the majority decision which I think is about as correct an interpretation as one could give here, but the very political dissent by Justice Scalia.

Now many of you know how much I am a fan of Antonin Scalia. We might not be from the same political theory family (Original/intentionalist v. Original/textualist see a further discussion here but we are certainly kissin cousins.

With that said, I also have to say that while I understand his frustration, (it has to be hard being so close to having a majority on every issue and preempting the other two branches of government with a ruling) He has allowed his frustration to overcome his understanding of the checks and balances within the Constitution.

Look, in the original Constitution, The Founders contemplated a bunch of things that could be done for one branch to veto the other two branches. The Congress passes a law, the President vetoes it. Congress can override the veto, if they do, the Supreme Court might decide that the law is Constitutional or it is not Constitutional. Ok so we have a law than the Congress wants the President doesn't and the SCOTUS says the law passes Constitution muster. Now what options does the Constitution leave the President? Well enforcement of law is left to.... THE EXECUTIVE BRANCH (ie the President). He can choose to enforce that law or not or do it the way he sees fit. Now Congress has another option. It can impeach the President for NOT Enforcing the law, The Supreme Court Chief Justice presides over a trial in the Senate and if he loses the Senate vote, he is gone.

Now Scalia's problem here seems to be, he really doesn't like the way the President has chosen to act on the failure of Congress to pass the Dream Act (lets remember what Scalia is angry about is the President's decision (through the Dept. Of Homeland Security) not to deport students who came to the United States as children because their parents didn't abandon them when they came to the US to find a better life) by not forcing these children to leave the only country they really know so that they can go back to a culture where they very well know no one and may not even know the language.

(In fact opponents of immigration reform like Federation of Americans for Immigration Reform (a well known hate group with ties to the KKK and other Xenophobic entities)want to send children BORN IN AMERICA to undocumented aliens out of their (our)country)

In his frustration, he lashes out politically at the President in his dissent stating:

...U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non enforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation’s immigration laws?

In fact the Constitution does not allow the states to enforce Federal laws that the President decides he will not enforce. If it did, it would give every state Governor and legislature a separate check on the President and on Congress as well.
Would Scalia say the same thing if the states were disagreeing with the court? In fact after Brown v. Board of Education, many states continued to say they didn't have to follow Supreme Court "law" and had the Presidents at that time decided not to send Marshals and troops to enforce the decision there would have been nothing the court could have done.

Scalia's comments are thus a political attack against POTUS's decision to get some of the rights the Dream act would have granted. It isn't the court's place to rule politically. I have no problem with much of his dissent (though I would not have joined in it as I think it twists to a great degree the law on federal preemption in Immigration enforcement) but I feel he has allowed his dissents to fall into the fanaticism that encompasses most of today's political debate. By suggesting the President was not within his right to set Executive priorities and that states can act on their own, is just not the law, it is not forwarding understanding the checks and balances of our Constitution and frankly it is beneath Justice Scalia's ability as a SCOTUS Justice.

THIS JUST IN:US SUPREME COURT OVERTURNS MOST OF ARIZONA'S ANTI IMMIGRATION LAW!!

I hope to have more details on this later after digesting the 76 page decision but it seems SCOTUS has knocked out everything in the law that Civil Rights advocates attacked except for the stop and check of status.

Immigrants do not have to "carry registation papers"; the State Police cannot arrest allegedly illegal aliens without a warrant and they cannot get such a warrant from the state courts;and overturning the law which allowed the state to charge a misdemeanor against an undocumented alien from holding a job.

Even the "stop and check" portion of the law is in danger as the court invited civil rights advocates to bring other attacks against the law.

The majority has upheld federal exclusivity in setting and prosecuting Immigration policy. Interestingly both Kennedy and Chief Judge Roberts were in the majority.

More later I hope.
Hattip: The New York Times on Line

Legislating Civility and Freedom of Speech: The Free F***ing Speech Demonstration in Middleborough MA.

I begin this by saying that I strongly believe in the First Amendment and believe you cannot legislate civility. The City Counsel or Board of Selectmen or whatever they have in Middleborough MA. disagrees with me. (No kidding, there is something new. People disagreeing with That Lawyer Dude, unheard of.)They passed a law outlawing certain words (we usually refer to them as "Dirty Words") and if you violate it, they fine you Twenty ($20.00)Dollars. This so obviously violates the Constitution of both Massachusetts and the USA that I cannot wait to see the first challenge to the law.

The Free F***ing Demonstration at the Middleborough Town Hall is supposed to gather tens of people to stand there and well in the words of organizer Adam Koresh:"... a large civil disobedience protest on Monday, June 25th from 12:30-1:00pm. Bring your bullhorn and foulest vocabulary to the Town Hall at 10 Nickerson Avenue, Middleborough MA 02346 and engage in the most profane conversation possible with your fellow liberty lovers. Let's show these uptight a**holes what freedom of f***ing speech is all about! Here is a NSFW Video announcing the action.

Now I am sure that the bullhorn is probably just as bad an idea as the actual legislation is but putting that aside, I think there is more to this.
Middleborough's officials are in the firestorm of what happens when civility clashes with the law. Sure I don't like hearing "F*** You!" screamed at the top of someone's lungs while I am walking outside of church. I don't like to hear it when I go into the visiting area of the jail. Why? Well because even though I don't believe in the concept of dirty words, I was raised to keep a civil tongue and although I can be profane, I still flinch when I hear the words spoken.

The Issue is one of who is going to decide what constitutes "dirty words" and who gets to make the rules. It can't be done. No matter what derogatory words are used, someone is going to be angry about them. Curse words depending on their use can mean a lot of things. They can mean the speaker doesn't like something strongly, they can mean the speaker is trying to show disdain for the concept of Dirty Words, it can mean the speaker doesn't even know the words are "forbidden." I could keep going but I think you all get my point.

On the other hand, I think the better protest would be a silent one. One where hundreds stood in the square with a copy of the State or US Constitution being held in each of their hands and say nothing NOTHING for a half hour, then at 1 PM BURN THOSE CONSTITUTIONS and maybe an American flag too. Now that is a more appropriate demonstration. It is respectful, memorable and should send a much stronger message than a bunch of children acting out against authority.

Either way, this ought to get coverage, but It is far better I think to send a strong reserved message than to shout from the rooftops at people who are not listening.