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.

"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.)

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.

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.

Kid Tweets That She Muscled Governor Brownback. Should She Be Made To Apologize? I Say YES!

Here is the story from the Associate Press:

"A Kansas teenager who wrote a disparaging tweet about Gov. Sam Brownback is rejecting her high school principal's demand that she apologize.

Emma Sullivan (twitter@emmakat988) told The Associated Press on Sunday that she's not sorry and an apology letter wouldn't be sincere.

The Shawnee Mission East senior was in Topeka last week when she sent a tweet from the back of a crowd of students listening to Brownback. It read: "Just made mean comments at gov. brownback and told him he sucked, in person."

She actually made no such comment..."

Thereafter Brownback's Media hound found the tweet while searching the Governor's name. When she read the tweet, she contacted the school. The Principal got a call from the Governor's office, and had heart palpitations. He ordered the 18 year old woman to write an apology to help him with "damage control."

Our Question is: Should Ms. Sullivan apologize and for what should she apologize?

The kid claims to be liberal. Okay. She also claims not to like Governor Brownback. Okay again. She has decided not to write the apology...and every liberal and libertarian it seems supports her decision... NOT ME.

I am not being contrarian, I just think that there are some serious issues here that may not be affected by this young woman's right to free speech.

1. She was at a school function, representing her High School.
2. She lied, she said she told Brownback off, in person.
3. She tweeted, against the rules of the school at a time she was in class.

Now I want to make the following clear. If she had tweeted, on her personal twitter account at 3:30PM that she saw Brownback and wished she had told him he sucked, well then no problem.
That isn't what happened here. Here she was invited to meet with the Governor of her state.Not because she was someone who the governor would normally meet with, but because she was chosen by her school to go. While she was in the Governor's home or office, she took out her cellphone, and reported she told the man "He sucked" (Skip the fact that the statement is both juvenile and vulgar) in person. That was both against the rules about texting in class, AND, it was a lie.

Now imagine if she had said something dumber like she had assaulted or God forbid shot the man? Would that be okay?? What First Amendment line had been crossed? Isn't that still political speech? She is still saying she doesn't like the man. She is still lying. She would still be doing it on school time.

No, I don't agree that she is putting forth her opinion. I think she was going for a laugh, which is also okay as far as it goes, but the truth is, it was disrespectful not of Brownback (after all it goes with the territory of being a politician) but of the Office of the Governor. It was also a disrespect of her position as a campus leader of her school and all the people in it, including the few that may like the Governor, AND, she broke her school texting rule.

Now that doesn't mean she should have written a mea cupla, nor promise to help Brownback win his next campaign. It does mean that this college bound woman should show some understanding that: 1. The Governor of your state deserves your respect as the leader of the state and the choice of the people of your state; 2. You broke school rules and you are sorry for that, and; 3. That as a school leader, she has an obligation to represent her student body by asking smart questions, reporting accurately what was said and if she disagreed she had the right to state an opinion that criticized Brownback.

I am not asking her to agree with Brownback, but respect for our institutions is an important thing for schools to teach. The proper way to engage in debate is an important thing for leaders to learn. (Remember when some wingnut congressman yelled out at Obama during his State of the Union "you're a liar"? that kind of comment does not spur on the debate. It doesn't bring the other side into understanding your grievances. Saying Brownback "sucks" is just juvenile and frankly makes me think Ms. Sullivan is stupid. All I know is, she is entitled to an opinion, but you don't have the right to come into my house and crap on my carpet. Verbally, that is what she did. Her principal is right to demand an APPROPRIATE Apology. Not one that necessarily makes the Governor or his people happy, but one that indicates that the student understands where she went wrong.

Happy Fourth of July 2011

Well in a few hours our nation celebrates its Independence from the Tyranny of the British Royal Crown. A few years after the decision to cede from British rule and after a war, we finally settled on a Constitution (there was a loose confederacy of states before that but we ultimately chose a federal system of government)to govern us. This Constitution tried to embody as much of the Declaration of Independence as it could, however the original document was thought lacking by the Declaration's author Thomas Jefferson, so he persuaded his friend John Madison to lobby through an embodiment of the Rights of Man our American Bill of Rights.

Jefferson wanted to preserve the fervor and feelings of his Declaration of Independence which begins with a statement about the self evident nature of the rights of man (meaning God Given rights) but he was well aware that tyrannizing politicians could do away with these rights as the King did to the Colonialists. Jefferson, wary of a big federal government wanted to limit the abuses that could become our government if Monarchists ever obtained an upper hand in our government.

In a large sense however, the Monarchists may have won if the goal was a large centralized government and a federal presence in the decisions of our daily lives such that the states have little to say about how they run themselves and we as citizens have little access to our Representatives. Our leaders appear only on news shows and before reporters who will report their views their ways and will not ask hard questions. Both major parties favor large government when it suits them and states rights when it doesn't.

For example Republicans favor states rights on Abortion and Immigration policy because they can't seem to get control of the federal government long enough to shove their view down our throats.On the other hand, they want a federal standard if a state doesn't follow their lead on an issue. In other words "States who agree with us get rights the rest of you be damned."

Democrats want state government to decide issues such as gay rights and gambling because they can't get the votes to work these out to their constituency favor on a national level. They favor state rights to decided what a marriage is, but would not allow states to determine what a "life" is.

I don't care where you stand on the issues of Abortion, gay marriage, Internet poker or the like. I care that things are actually interpreted by our Constitution with a view toward the Jeffersonian approach to our government. I'd also like to see a sense of shame when a party acts hypocritically.

Here is how some of this would shake out under my view of the world. Interstate commerce and Immigration policy are national in scope as are issues of Defense. These areas are reserved for Federal control. The Internet is also a federal issue, why? Because it is EVERYWHERE!

Health, Sex, Gambling, all criminal activity except for terrorism, treason, bank/mail/and wire fraud are state issues. There is an exception to that and that is that the Fraud must not just use the wires or mail to be committed, but must be committed against citizens or corporations on a national scope. Hence just because someone in NY calls someone else in NY to commit a fraud on a NY corporation, that use of the phone would not make for a federal case just because the phone line routed the call through a national grid of phone lines etc.

In my world, elementary education would be left up to the states, civil rights are federal. Secondary education (High school and up would be a mixture of Federal and State control depending on the issue however as somethings (like law or science) are things that need to be shared nationally we do need some national standards.

The feds could set standards that each state need to meet in the area of dealing with the imprisoned or the poor, but it would be up to the states to implement the standards. Economic Policy is a shared item as well. National Parks need to be part of a 3 way discussion Fed, State and local governments need to participate together. OTOH, the feds need to stay out of our homes, our hotel rooms our bank accounts and anything else that concern us as individuals.

Anyway, I could go on, and I will, but I want to know what you think of this whole concept of Independence. What does it mean to you, not personally, but as it relates to how we as citizens obtain a government that will uphold our right to live and conduct ourselves in the freest of fashions.

Edited to add a couple of links and clean up some spelling errors.

Judge Scalia: The Constitution Permits Sexual Discrimination

In an interview with the California Lawyer Magazine US Supreme Court Justice Antonin Scalia declares that the 14th Amendment to the US Constitution does not prohibit discrimination based on one's sex or sexual orientation.

Scalia is an "Originalist" is one who adheres to the words of the law and what the framers of the law meant when they wrote the words and the document was passed (by the electorate.

A fairly simple guide to Originalism and non-Originalist thinking can be found here

As a general fan of Scalia's I was asked if I agreed with his statement that the 14th does not encompass equal rights for women. I do not. That is because within the Originalist camp, there are two distinct branches. Scalia is an Intentionalist- Someone who interprets the Constitution according to the way he thinks the people who wrote it meant for it to be passed. This style of interpretation is popular among Neo-conservatives but a number of Classical liberals (libertarians) also hold the view.

I am a textualist. I believe the text means what the text says. I would probably be closer in vision to the late Justice Hugo Black who would decide 1st Amendment issues by reminding his colleagues that "Congress shall pass no law" meant NO. LAW. Textualists look at the words and give to them the meaning that they have. We do not believe that one can go back and decide what the collective voice of the people was except by using the words themselves.

Getting back to Scalia if he is correct that the people who framed the 14th amendment as well as the people who voted for it were not concerned with sexual equality or the equal treatment of those with non-traditional views of sexual orientation then in his view such discrimination would be as legally legislated as the banning of such discrimination.

I do not believe however, that the Constitution is limited by what the majority of people thought at the time of passage. I doubt we can truly discern that. I fall on the side that says read the statute literally as it is the only document we know was voted on. So in this case the 14th Amendment at least for me as a classical liberal means what it says:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Broken down: All persons (Male female black white other etc)born or naturalized in the United States (meaning born here not born here of documented or non documented aliens, BORN. IN THE USA. or given citizenship by us after birth somewhere other than IN THE USA),are Citizens of the US and the state where they reside (So the states do not have a choice in who they may bestow rights upon.)
No State (NO. STATE.)shall make or enforce any law (ANY LAW) which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person (ANY. PERSON)of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I think Justice Scalia needs to rethink even his sense of Originalist thought. I do not believe that voters (who were mostly male at the time of the adoption of the amendment) did not think their wives or daughters were not persons or citizens. Whether they could conceive the law would someday be applied to women they could have understood it would. After all they failed to exclude them and they could have done so if they never wanted the amendment to apply to these women. I think that trying to apply what they would have decided to do had they issue been debated is just not possible. The original words speak for themselves Women were citizens. The end.

I expect to see Tea Party people try to limit the scope of the 14th amendment and claim to other conservatives that the original intent requires that the amendment not apply to citizenship of the American born children of undocumented aliens. THAT IS NOT WHAT THE AMENDMENT SAYS. Further I can guarantee none of those types of people are smart enough to discern what Americans of 1865 thought. They have no idea what Americans today think I don't want them straining to go back 150 years.

Hattip: Huffington Post

Understanding Islamic Discrimination: Wearing the Hijab or Islamic Headscarf Is Not Grounds For Firing Someone (or arresting them either)

ABA Headline : Jailed for Wearing Headscarf to Court caught my attention for a few reasons: 1. It offends me that someone could be arrested for wearing religious gear to court; 2. I am interested in seeing how next month's House Of Representative hearings on the growth of Islamic Fundamentalism in America go (as in will we learn something about the reasons approximately fifteen percent of American Muslims between 18-30 believe suicide bombing can be justified.) or is it going to be the witch hunt some groups claim it will be?: and 3. Because I am seeing more and more valid complaints of discrimination coming into our NY and Long Island offices from members of the Islamic community as well as from Sheiks who are often confused for Muslims due to their headdress.

In the Georgia case cited by the ABA Journal it seems a woman who went to court to support a family member wore a Hijab to court. She was told to remove it. This is in my mind akin to asking a Jewish person to remove a Yarmulke. I am sure that the court staff will suggest that there were security reasons for their demand and when it wasn't followed they arrested. What I find curious is that it seems to be agreed that after the woman said she would leave they arrested her anyway. I thought the idea was to NOT have her in the courthouse. Either way, I think they will be hard pressed to show that they could not have found a way to allow her to attend the court date without removing the headdress. (For instance they could have asked her to walk through a scanning device or have "wanded" her to see if she were carrying a weapon. I understand that such a process would not negate her from carrying the parts of a bomb or other items of a deadly nature on her person but I don't see how the headdress alone rises to that issue. Further if she were wearing a full Burkha I doubt that she would be required to remove it any more than a Catholic Nun would be asked to remove her Holy Habit (the tunic part which is part of the uniform if you will). You cannot arrest this person solely because she dresses in a religious.

On the Issue of the proposed hearings, Peter King is the incoming chair or the US House of Representatives Committee on Homeland Security. Congressman King has announced his plan to hold hearings into why American grown Muslims are becoming more "Radicalized." The issue is, will Congressman King use the meeting to call members of the Clergy before Congress to name names of those in their congregation who are Radicals? That seems somewhat McCartyesqe. I hope Congressman King (who was a pretty fair lawyer prior to entering politics) focuses on why there seems to be an affinity for Radical faction of Islam among our younger members (those polled tween 18-30 years old.) I think you can start looking at the reason being that young Muslims are being discriminated against in larger and larger numbers. The Pew poll sited above notes that and I can say that I see it in our practice in both Nassau Suffolk as well as in NYC and it's outer boroughs.

Here is a quick primer on religious discrimination in employment/labor situations.
Title VII of the Civil Rights Act codified under 42 USC 2000 e-2(a)states that (1). "Religion" is defined to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j).

At first blush it is up to the person who claims to be discriminated against to prove that (1) she had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer threatened her or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements." I suggest that if one is called in about one of these issues, that she take a small digital recorder with her and (at least in NYS) record the conversation. In New York only one party to a conversation need know it is being recorded (check your state rules here.) That should make the whole thing a lot easier to prove.

Thereafter, assuming the plaintiff (or victim of religious discrimination) has made her case the employer must then show
(1) "that it initiated good faith efforts to accommodate reasonably the employee's religious practices"; or (2) "that it could not reasonably accommodate the employee without undue hardship." Id. If negotiations between employee and employer "do not produce a proposal by the employer that would eliminate the religious conflict, the employer must either accept the employee's proposal or demonstrate that it would cause undue hardship were it to do so."

Now public employees in security positions have less rights to dress outside of the uniform than do other sectors of Public or private Sector employees. Nevertheless, short of showing that there was an economic loss or the potential for a morale disaster, the undue hardship will be hard for the private sector employer to prove. As for the first part again you can see how it is in your favor to record the conversation or negotiation. Rarely do I hear an employee say that they were listened to or negotiated with.

In our case, our client wore her hijab to work. She was ordered to give it up or go home. She worked that day without it over her objection. The next week when she went back to work, the same manager had the same complaint and further he basically told her to quit or be fired. She did leave but she was de Facto fired which saved her for unemployment benefits. We have just received a right to sue letter from the EEOC so you will be hearing more about this as the next year progresses.

If you should be incurring problems with employment religious racial or sexual discrimination or retaliation, why not give me a call to discuss it? You can still reach me through 516-741-3400.

Queens District Attorney Brown wants to Silence the Judge so he can make the Defendants talk: Another attack on Miranda

Prosecutors hate quiet defendants. In fact they will go to great lengths to get them to talk, especially to confess. In New York City over the past few years, Assistant District Attorney's will go into the holding pens known as Central Booking and actually interview these arrested folks, telling them that this is their only chance to talk to a prosecutor before arraignment and that it may result (during a blue moon)in a dismissal of their case. Certainly the Prosecutor will check out anything they tell them (like their alibi which really means he will send a detective down to take partial statements from alibi witnesses and screw up a defendants alibi allowing them to convict many more innocent people.)

The way these interviews begin is for the prosecutor to tell their spiel to the defendants BEFORE THE DEFENDENTS ARE GIVEN THEIR "MIRANDA" RIGHTS.(Miranda warnings give a defendant their right to remain silent and their right to an attorney.) After they have promised them to listen to their stories then give Prosecutors read in the rights. It is a "Bull Shit" way to use gentle coercion to get a confession or admission. (Pardon the language but really can you think of a more blunt way to say it??)

What do I mean? Well, the ADAs are promising to listen to them, but in reality, the ADAs want to convict them (I know DA Brown will say that isn't true but if that were the case, why not let them speak to their own attorneys first and then let the lawyer decide if is in the best interest of the client to speak to the prosecutor. After all that is how they show it on Law and Order.)These ADAs are overcoming arrestee's will to assert their rights by promising something may happen for them if they do not assert their rights.

Remember where these people are when this is done. They are completely at the hands of the government. They have no advocate of their own there and are not entitled to one. If they don't speak to the prosecutor they don't have to, but they aren't going to see a judge until they have gone through this little ritual.

Holding pens in NYC hold defendants for 24 hours or more. After a few hours smashed in with 20 other people, with nowhere to sit without access to family or lawyers, these folks will do anything if they think it will get them out faster.

One Queens judge has threatened to look into the ethics of this behavior. The Honorable Joel Blumenfeld has a decision coming that may discuss among other things the legal ethics of a prosecutor saying and doing the things that the prosecutor says in Queens County NY. Now Courts look at ethical issues all the time, but DA Brown doesn't want Joel Blumenfeld, a former criminal DEFENSE Attorney to rule on that issue. So DA Brown has brought an order to show cause against the good judge to stop him from discussing the ethics behind the activity IN HIS JUDICIAL DECISION!!!

Unbelievable. Absurd. Legal ethics and violations thereof are perfectly good reasons to suppress evidence. (For example if a defense attorney "Friends" a victim on Facebook by pretending to be someone other than himself, the evidence he gets from that is not usable in the case. That isn't because it isn't good evidence, it is because such behavior is unethical for lawyers to engage in.)

On the up side, it is unlikely a fellow jurist will tell Blumenfeld he can't write his opinion the way he wants. It is supposed to be an INDEPENDENT JUDICIARY!

Oh did I forget to mention, DA Brown USED to be an Appellate Division Judge. I wonder how he would have taken to being told he couldn't discuss an ethical issue in a decision.

As for you readers out there I cannot point out how important it is to get a lawyer for your friends who are arrested or if you are arrested how important it is not to speak to ANYONE without first speaking to your OWN lawyer. Most of the people who give statements give them because they are waiting for LEgal Aid or an 18b lawyer (free lawyer from the court) to be appointed. DO NOT WAIT!! Get yourself a good lawyer right away and have him notify the prosecutor that you or your friend is represented by counsel and may not be spoken to by them without that lawyer being present.

IF you need a lawyer even in the middle of the night, I will take this opportunity to remind you that you can call my office 24/7/365 and speak to a lawyer if you or a friend or loved one has been arrested and is awaiting arraignment. You can reach us at 516-741-3400. DAY OR NIGHT. Weekday or weekend, holidays too!!

Hat Tip: The NY TImes

Why Are American's So Dumb?

This post is a rant, so if you don't want a rant, go elsewhere.

I am sick of seeing a bunch of lunatics try to run our nation on half lies and rumor. I am also sick of people trying to use half-wit reasoning and because they bellow the loudest they get treated like they actually know something. Let's have a nation where everyone's freedom of speech is appreciated and coveted and not just the people with whom we agree.

About a month ago, Helen Thomas went nuts in an impromptu interview with my old (like 40 years long)friend Rabbi David Nessenoff. Now David is one of my oldest and dearest friends. He is without a doubt one of the finest and bravest people I know. He was absolutely right to air his interview with the octogenarian Thomas and he was entitled to draw the opinion that Thomas was both biased against Israeli interests and that she maybe hit an age where she ought best to retire. The former opinion could be gleaned from her statements that Israeli's ought to get out of Palestine and go back to Germany and Russia. For this she shows a bias, but she is entitled to her opinion and no one, and I mean no one should have been asked to remove her from her job. She was a op-ed writer and to do that job she has to have an opinion. I am often moved to want to fire Rachel Maddow, Ariana Huffington, Anne Coulter, and a number of other people who think that debate is nothing more than a bunch of sarcastic comments strung together with a ridiculous idea to make one sound as ludicrous as possible. Then when she has insulted the other side enough she is crowned a spokeswoman for her side.

Not one of these people could hold a lamp to a William F. Buckley, Joan Didion, George Will, or John Galbrith. What passes as debate in today's hip-hop world is not the stiletto sharp barbed airing of ideas but the in your face name-calling that neither educates nor leads one to think. It is all pop and no corn. What's worse is that when we don't agree with them, we try to hound them off the air making them inconsequential.

The latest "High tech lynching" is over at CNN. I am speaking about the firing of 20ish year veteran Octavia Nasr.
She dare tweeted that she was sorry that Hezbollah leader Grand Ayatollah Seyyed Mohammad Hussein Fadlallah had died.

Now personally, I am not all that fond of this guy. He rooted for the destruction of Israel, and blessed the guys who later blew themselves and the US Embassy and a Marine Barracks (killing a number of Americans.) I think he is more terrorist and criminal sympathizer than hero, but I can understand Nasr's appreciation of his pro-women's stance in Islam (now that is something different) and that one may argue that as a Hezbollah leader he has a legitimately obtained dislike for Israel. (Legitimately in that he comes by it naturally having grown up Muslim in the mid-east and didn't come to his position by other choosing).

Of course that "serious" misjudgment that she may have an opinion other than those of her viewers caused CNN to shut her down. Now I get it. We here in the USA like Israel for a number of reasons both good and bad. However to act like a wounded dog and hound her out of a job she did pretty well shows the tolerance of a 3 year old. Freedom of speech with a large part of what makes debate possible. Intelligent debate requires that people who differ and have reasons. I am sure I could make a better case for Fedallah's death than can be made for him being a loving Human Rights figure. That is not the point. Nasr had a right to her views and I a right to disagree. I do not have the right to order her off the air to assuage my feelings.

I am just saying I guess that we aren't going to grow any more smarter just listening to those that agree with our position.

I am just saying...

We Are Not The Land Of The Free Until We Stop The Nanny State Bull Hockey

I don't have the time for a long post today. I love America. I believe in its promise. I get frustrated however when I see that we refuse to trust our people with their own money and their own bodies. There are natural consequences from every act, but legal consequences must not be based on someone Else's subjective test of right and wrong.

My test for right and wrong in a law is simple: Does this law seek to prohibit an act that hurts no one but the doer of the act? If so then it should not be illegal. It is said that "the freedom to move one's arm ends at the tip of the nose on the next guys face." If it doesn't hit him, then his discomfort at the fact that I move my arm is not illegal.

Ok I don't have the time to go into all of it, but look at this story about a federal prosecution of a Doctor who asked two girls to come across state lines to "service" him. Not minors, not Sex Slaves or Human Traffic, 2 adult willing women who wanted to have sex w/ this guy and to get money for their effort.


Then look at this YouTube Video of Rep Barney Frank one of the US Congress' most liberal members and Rep Peter King, one of its most conservative members. They are on the same side of the fight to restore the rights of Americans to spend their money and time the way they want. Only a question about Liberty could get these two on the same side of an issue.

Now do something about this. Let your Senators and Congressmen know that these types of Nanny-State laws are unacceptable. Tell them to stay out of our bedrooms and our pockets. Do it for Freedom, Liberty and the American way. Do it today.
Happy 4th of July.

Freedom of Speech Does Not Permit You To Break The Law

Ian Barry is a Seventeen year old who knowingly broke the law to make a point. Ian gave a speech as to why Marijuana ought to be legal to a High School class. During the speech, he lit a joint and by the end of the speech, ingested the joint. Police arrested him. He has been charged locally. He says in this article that he accepts responsibility for his actions and that he is ready to pay a penalty for his actions.

Ian points out that he had to break the law to bring any real attention to his cause. There he may be right. Many are calling his act a act of civil disobedience and claim that it ought to be protected from prosecution as freedom of speech. I think the kid understands free speech better than many lawyers do.

His act was not an act of free speech though it was an act of civil disobedience. He broke the law to prove a point; that the law is wrong. He may get attention to his cause, he may even earn jury nullification, which would go far in getting his point even more attention, but he is not protected from arrest prosecution and conviction for his act.

It is oft said that one's rights come to an end at the tip of another's nose. In other words, you are free to do what you like until you interfere with someone else's right to do the same. In Ian's case, he is not free to break the law, only to criticize it. He moved on from that when he carried the joint to/or in school. Given the SCOTUS recent decision in the "Bong hits for Jesus" case, Ian is headed for a criminal record assuming he doesn't go to trial and convince a jury to nullify the law. He is also garnering a lot of attention for his cause.

I am not sure this is a call I'd like a teenager to make. He has no idea, despite his bravado, of the trouble he has caused himself in the future. He has however made the decision and will have to live with the consequences until the law catches up with the rest of the society's view of marijuana.

Judge to School District: "PISS OFF!!" & Let the Kids Play Chess!!

Sometimes I love writing the title of these pieces can you tell? :P

When has a school district "nanny stated" itself too far?? Well in California, it seems that when the Shasta Union High School District wanted to drug test kids on the CHESS TEAM, a court said, uh NO!!! (Emphasis added...)

The district wanted to know who was using drugs so that they could ban them from school trips and other activities. So if the kid was in the Band, played on the Chess Team or was raising a pig for the state fair, he had to pee in a cup first. The reasoning is that the school has to supervise these kids while they are on school trips and if they are in a club or in the band they are more likely to have to go on overnight trips and they might be harder to supervise if they use drugs or alcohol. Brilliant! So we will just keep them out of supervised activities so they can take part in unsupervised activities... (No wonder Johnny can't think. These people have no idea about teaching anything.)

Now I have had the pleasure of "chaperoning" a few Forensic overnight trips, and while they have the ability to get out of hand, they don't, because DEBATE CLUB KIDS CAN'T DO DRUGS AND STILL PERFORM WELL!!

I have a feeling the same goes for members of the CHESS CLUB! Not to mention, it is far harder to play classical flute music than to improvise a new riff while you are high. Nonetheless, these examples of student spirit were told "pee in the bottle or no Drama club."

Now the SCOTUS, which is filled by people so old they don't remember BEING in High School, ruled about a dozen years ago that you can force a kid to take a drug test if he is even attending your school. Justice Marlow the judge in the case at bar held that under the California State Constitution the right to privacy is protected. One can debate whether such a right is in the US Bill of Rights, but Californian's passed this right in 1972.

I think the court in this case is right. It is the good kid who must give up his or her right to privacy while the slacker who does nothing in school but shows up can come and go as he pleases. Moreover, it shouldn't be a rule that to participate you have to allow someone to watch you urinate in a cup. High school is hard enough without having to pass every adult test. I'd like to know what you think however.

I could not find a copy of the decision to post, so if you know of one, pass it to me ok?

Thanks, TLD.

Hattip: Raw Story

What Would Happen If There Were a Disaster At the Inauguration?: A Potential Flaw in the Rules of Succession

I often worry about disasters. I am not sure why. I think I am an optimist. On the other hand, Lawyers are planners and one of the things Mrs. Lawyer Dude always compliments me on is that I usually see things happening down the road and I always have a contingency plan. Hence I have been thinking a lot about Inauguration day. I mean it is going to be the most historical one in the last century. It is also going to stir up a lot of idiot people who have an ax to grind, or think they do. Further, we always have those cave dwelling morons from Al Qaeda , looking for a reason to blow our big party. It occurred to me that everybody who is anybody is going to want to (and probably can) be there, on the podium. I mean we will see the Pres. The Pres-elect, VP and VP elect, Chief Justice and presumably the entire Supreme Court, the Speaker of the House and the Minority Leader as well as the Senate Majority and Minority leaders and a host of Senators and Congressmen and Cabinet members. So, who will be watching the store and what happens if the worst happens and all these people are unable to serve for a while.

OK Before you all get on me for being a damp cloth, the guys and gals over at the Wall Street Journal "Law Blog"have been wondering about this stuff too.Their post "President Condoleezza Rice" explains how the title could come true. They however are smarter than me, cause they have some potential answers. The real answer seems to be however, that if a Bush Cabinet Member survives, and President-Elect Obama is not inaugurated, the Bushie is President for the next four years. That would thwart the Will of the People it seems. It is a good thing lawyer types like me worry about things like this.

BTW Follow me on Twitter
and Check out my new Website
Kennedy Inauguration Picture above provided by Wikipedia under a Common License.

Catching Up: A Week of My Favorite Posts... by Others!

Ok, just because I am in trial, (in Queens County NY) doesn't mean I am not keeping up with my reading. It is my writing that goes to pot.

Anyway, I want to get this post up, so no more small talk:

1.Over at Sentencing Law and Policy Blog, Prof. Berman had three interesting posts that make my list this week:

A. USSC is considering alternatives to incarceration... It is about time. It is a lot cheaper to spend 60K to rehab a person, than 25 a year for 10 years to incarcerate them. Article here

B. Berman also points out that the sheep we elect to office are creating gulags for sex offenders through zoning laws. Someone has to tell me Why the concept of having paid for his crime doesn't apply to sex offenders. Especially since we keep enlarging the definition of sex offender.

C. Then there is the story on how Florida wants to stop clusters from happening. That doesn't mean they want to allow convicted Sex offenders to live anywhere, just that they don't want too many in any one place. Trouble is, that will lead to banishment.

Money quote:

White says he would like to have sexual offenders housed in a designated commune-like facility in Hillsborough County. The facility would be gated, well marked and a good distance from churches and schools. "Along the perimeter of that facility you could have the postings and the markings that this is a certified sex offender location -- please keep children so many feet away and children beware," White said.

2. Staying with the Sex Offender theme Sex Crimes Blog:
A. has an article on the ACLU suit against Allegany County which has a sex offender "banishment law" where they say that a sex offender (no definition)must live 2500 feet away from places where children might congregate.

B. Prof. Yung also blogs about a NIMBY (Not in MY backyard)protest and petition drive that seeks to keep a sex offender rehab out of a Utah neighborhood. The rehab would be a football field away from a daycare "center".

C. Finally, we have the most ridiculous application of the Adam Walsh Act. A law meant to protect a child from child pornography will now cause the child to have to register, because she sent a nude picture OF HERSELF to a boy. Oh my God, How will this affect Disney stars????

Money Quote:

State Rep. Jay Hottinger, R-Newark, wrote the state's Megan's Law bill, the predecessor of the Adam Walsh Act, and said this case was not something the legislature envisioned.

That is because they are stupid. They only want to pander to crazed voters who they misled into believing there was a problem where one never existed. They haven't solved a real problem in so long that it is no wonder the courts are left to sort this garbage out. I have a case like this in Suffolk County NY. A Florida cop, broke the law and got a minor to send porn to him (the cop was pretending to be 14). Nevertheless, it is according to the District Attorney a crime. What is really absurd is that given the age difference, the boy and a real girl could have sex but not talk about it or simulate it over a computer?!? This garbage has really made the law appear foolish...

Ok there were a lot of other good stories about sex crimes, but we must move on.

3. There is a prolific blogger out there by the name of Radley Balko. He writes The Agitator and offers posts to Reason magazine's Hit and Run blog too. Radley was focused on Law this week:

A.This post at The Agitator leads to a story about a man who could not afford to keep up his lawn in his gated community. He had gotten hit with a 600 a month ARM increase and his adult daughter and two grand kids had to move in when they lost their home. Still the community board chose to spend nearly 1000 dollars on legal fees instead of helping the neighbor get his lawn in gear (He needed to resod the lawn which went brown in the Florida Sun when his sprinkler broke). They actually put the guy in prison. Sounds like debtor prison all over again. What was this judge thinking? I remember when I was at Legal Aid,District Court Judge Mike Steinberg fined a guy 20 dollars and then he paid the fine himself...Oh yeah, at 24k a year average cost to incarcerate someone, it should take about a month before it would be cheaper for the county to sod the home itself than keep the man in jail. Given his age and health, it could cost them more far sooner.

B. Not satisfied with lambasting stupid legislators, Balko also picks on a stupid judge, Mark Rusch, who in a capital murder case, had to be removed from the case because he signed a search warrant for police to search a lawyers office to get incriminating evidence against the lawyer's client... Then he had the evidence brought to his home where he and prosecutors handled it!!!! Where the heck did this idiot go to law school? And how the hell did he pass the bar exam? That is Constitutional law 101!!

Radley rightly asks:

Good to hear the judge was taken off the case, but shouldn’t this guy be removed from the bench?

C.Finally over at Slate Magazine, Balko tears apart what appears to be Obama's criminal justice policy. Namely block grants that neither Congress nor the President can oversee. Two grants he has named are for:

a)Neighborhood policing (which was a failed Clinton initiative that Bush phased out.)The Neighborhood policing initiative took $8 Billion Dollars and reduced crime by less than one(1%)percent and

b)the other is the Byrne grant for Drug Eradication which in fact took drugs off the streets but focused on low level pushers and favored numbers. This led one rouge cop to falsely arrest pretty much all the black people in his town on trumped up charges. I wish I had any hope that some of the Criminal Defense Lawyers supporting Obama were going to serve in his Justice Department or that he was going to name one to the Supreme Court...hmm on second thought...

Ok that's 9 stories. That is about all I have time for now. I hope to have some more tomorrow.
In the meantime, Jets won, blog's updated, and I am ready for more cross examination. All and all, a pretty good weekend.

The First Monday in October: SCOTUS OPENS ITS NEW TERM

I have mentioned this before, but I love the First Monday in October. I used to love going to the Supreme Court of the United States as a student at Tufts. Catch the train or drive at an un-Godly hour; sleep as much as possible; walk from Union Station in the October air; stand in line to get in, and watch the 9 most important men (it was all men then) in law take their seats and begin to work.

The day before the First Monday in October is the Red Mass. It is a Catholic Mass said for the judges and lawyers. It is solemn and filled with Pomp and Circumstance. Prayers are said for these men and women that they will find the knowledge, justice and mercy that makes for good lawyering and judging.

Tomorrow the term begins. The big issue on the calendar so far is "Preemption". Are the states preempted by federal law from entering into certain areas that the feds now say are theirs? It is not an easy concept to grasp but it is important in for conservatives who believe in state's rights and are fighting the ever growing intrusive role of the federal government into what had formerly been states province.

The Associated Press (AP) gives us a rundown of some of the issues coming in front of the judges this year in an article here

As previously noted Scotus Blog has a rundown of the criminal cases the court faces. These include what an enterprise consists of in a Civil or Criminal RICO suit; Speedy trial delay; and issues surrounding the taking and use of Confessions and admissions at trial when arraignments have been delayed; or when someone gives police a statement without waiving his right to counsel, and it is used against him when he later takes the stand in his own defense. (In other words, if the confession was taken in absence of the waiver, it cannot be used on the Government's case in chief. The question is should it come in if the defendant takes the stand and says something other than what he told the police when Police took his statement without getting the defendant to properly wave his rights).

In all it may be a quieter year, but it holds some really important decisions ahead.

Why Caps on Attorney Fees Hurt Citizens: Fed Prosecutors say Cook County Jail (Chicago Il.) Systemically Violates Prisoners CONSTITUTIONAL RIGHTS

Russian novelist and philosopher Fyodor Dostoevsky once wrote that "The degree of civilization in a society can be judged by entering its prisons." If that is the case, then the jails of Cook County Illinois (Chicago) and I think those of Nassau County NY present an utter lack of civilization on their citizen's part.

Patrick Fitzgerald, bane to the Bush-(and more exactly) Cheney administration, and US Attorney of the Northern District of Illinois has issued a scathing report which bashes the nation's largest single sight jail for being violative of its prisoners basic civil rights under the 8th amendment.

The report gives the USA N.D.IL. The right to bring an action in about 1.5 months to force the city and state to fix the problems. These are very serious charges.

Now for specifics: the study found that the jail "Key findings of the investigation conclude that the jail has failed to adequately protect inmates from harm and serious risk of harm, including physical harm caused by inappropriate and excessive force used by staff and violence by other inmates; failed to provide adequate medical and mental health care, including suicide prevention; and failed to provide adequate environmental conditions, including fire safety and sanitation, all resulting in unconstitutional living conditions."

These violations have led to suicides, murders, amputations (by the jails own doctors) and beatings at the hands of the guards. The level of violations rises to that of a constitutional violation.
What's worse is, these folks are HAVE NOT BEEN CONVICTED OF ANY CRIME. They are awaiting trial and are too poor to make bail. In other words they are PRESUMED INNOCENT

Now things in Chicago are pretty bad, but are they any less so here in Nassau County? The Nassau County (NY)Jail in East Meadow is a miserable place. There is gang violence and regular violence against people who are different (think gay). Medical attention in the jail (as opposed to the NCUMC next door) is very poor and many inmates do not get any much less proper doses of their medicines. The Jail instituted programs that made it impossible to file complaints, made it so that prisoners had to file the complaints with the same people who they were complaining about, and came up with a scheme to make sure complainants never exhausted the administrative remedies they had to finish before they could sue. Oh yeah, lawyers were not permitted to help for those that did get to file a complaint.

Now why are things like this allowed to fester?

Because Congressmen do not understand the laws they pass. Because Prisoner's have no lobby. Because politicians pander to voters by being "tough" on Crime. Because Americans are stupid. No not in the imbecile kind of way, but in the "I don't want to think about or learn about this" or the "Government will take care of this stuff" or in my personal favorite "those people don't deserve better" kind of way. Because even though most of Congress is made up of lawyers, they hate lawyers.

What happened here is that under the original civil rights law, prisoner's could file suits "willy nilly" and were costing the local governments a ton of money in legal fees for "Frivolous litigation". (One inmate sued both the Devil and G-d in two very separate law suits.)

Normal solution: require that the litigation be filed by an attorney who has reviewed it and is open to Rule 11 sanctions.


Congressional solution: Close the court house door to most prisoner civil rights suits and while we are at it, make it impossible for a lawyer to make any living in representing someone who is in jail and has a legitimate civil rights suit by capping his legal fee at 150% of the recovery.

This is the gravamen of the Prison Litigation Reform Act of 1995. Now why cap the legal fee, well civil rights cases allow the court to switch the legal fee of the winning party to the losing party. That means a lawyer will get paid by the government. Now it was completely lost on the congressional geniuses that wrote this bill that most of America's best lawyers charge more than 350 per hour and that they were already taking less because they are paid at no more than 112.50 an hour under the civil rights act (See also the Lodestar case).

NOPE, if the lawyer succeeds in saving prisoner's lives, the jury can give the victim/prisoner a buck and the lawyer gets... $1.50. That's absurd right?? I mean a guy can work for 300 hours on a case, win it, save lives because he wins it and all he gets for all that work would be a half cent an hour?? That's got to be absurd right? Well the 10th Circuit court of Appeals thought so (See this decision) but then when they looked at the decision en banc (a fancy way of saying all of the judges on the Circuit Court of Appeals reheard the case) they agreed that absurdity wins out, Congress screwed up and they couldn't legally fix it. Hence the Court house doors are effectively shuttered because a lawyer has to feed his family and pay his staff and we can't do that on this type of fee. Big law firms don't take too many of these types of cases pro bono. Hence disturbing behavior begins, goes unchecked, increases, and people die.

There are a few proposed laws to reform the PLRA. You can learn more about those proposals here.

Lawyers and the threat of a law suit, while expensive and not without some downside, keep people safe without sacrificing the needs of these people. Our professions ability to find a wrong and right it without taking up arms makes our nation stronger and our people healthier and safer.

Do not give in to the platitudes of others. Ask questions. When a Congressman or lobbyist wants to limit the right of someone to use the capitalistic system to better themselves, usually it betters all of us. Putting artificial stops on the free market never succeeds in anything but waste and loss of life and limb.

It is the same with Medical Malpractice and Class action fees. Doctors still want to make money, and so do insurance companies. They will continue their services. Same with Pharma and other developers. It may make things a little expensive at times, but then again, would you rather pay more for a safe drug, or less...

To Err is Human, To Forgive Is Divine, To Forget Is Wrong

Bernardine Dohrn,William Ayers. I remember those names. I don't know why. Bernardine was the face and leader of the Students for a Democratic Society(SDS)splinter group the "Weather Underground." Ayers was one of it's founders.

The "Weathermen" as they were called were militant and violent. Although their bombs killed no one but themselves, that was due only to their incompetence. They were meant to kill others, many others, innocent others. They eschewed the non violent protests that were so powerful in the 1960's and turned to bombing people and things. They were despicable. That they thought their views were so right and so justified, is just the hubris of their privilege. For all their protests and their call for violent overthrow of our government they were, in fact, cowards. When their hideout was blown up (they screwed up in building a bomb and it detonated and destroyed the hideout and killed three of the members including Ayers lover Diane Oughten), they ran "underground." Many of them lived phony lives for many years. In those years they married one another and slowly found ways to fit in. They still held many of their views, but they had found different ways to express them. They were for all intents and purposes "rehabilitated," in the most loosely defined way. To my knowledge both still think their actions in being involved with trying to kill others was justified because they wanted to kill a few conservatives to save the lives of the thousands who were being killed overseas (Vietnam.)

The reason their names come up today, is that it turns out Ayers and Dorhn are neighbors, and in some instances colleagues and even advisers to Barack Obama. Hillary Clinton, has suggested that Obama's relation with these people is at the very least poor judgment. His acceptance of campaign money from them a major sin. I think it is no worse than her husband's decision to accept money from Mark Rich's wife and then granting the SOB a pardon.

I am writing here today though because the lesson of this is important to both me as an individual, and a lawyer, and my message to others as to how and what we offer to those who have created great havoc in our society and what we do with them after they are "rehabilitated."

Dorhn and Ayers are now "educators." Both are tenured Professors. Dorhn is a lawyer by training and a Professor of Law at Northwestern Univ School of Law. She has been denied the privilege of becoming an attorney at the bar. She cannot practice Law. I am told by others she has done a wonderful job in teaching others how to best protect children and families. I am also told she is no longer a threat and is really a good suburban mom who fits into the fabric of her tony community. I am glad that she has found a way to contribute, I am just as glad she is not allow to practice law, even though it probably a loss to the profession in some ways if her colleagues are to be believed.

Now I can see many of my friends shaking their heads and wondering why I am being so "vindictive" toward a rehabilitated person. I even asked that of myself. I mean after all, I am in favor of not holding someone's past against them in employment opportunities and in living situations. On the other hand, I am completely comfortable with Dorhn never getting to practice law. It appears on its face to be a hypocrisy. It is not, although until I thought it through for this blog I thought it might be.

You see, at first I thought my view was borne out by the fact that I found the Weathermen completely detestable as a youngster. (Oh yeah Barack I was only 10 when they blew themselves up. I still remember them.) As a teenager at Tufts their were still remnants of the SDS chapter at the college trying to avoid ever entering the "real" world of employment or finishing Master or Phd's on the 20 year plan.

In reality, while I find everything they did a juvenile response to political questions which explains why the "establishment" did not take their views seriously, I do not think them any worse than any other criminal. Except for Dorhn...

You see she was a lawyer already when she started the Weathermen. She wrote their manifesto. She was their face and spokesperson. She was older. In her late 20's. She was from a prominent family and had opportunities denied most criminals. Nonetheless she completely ignored the realities of what she was advocating. She forgot that the bombs her group was throwing into the homes of Judges and into the Pentagon, would kill people. The last bomb, the one that killed three of her cohorts on March 6 1969 was meant to be detonated in a crowded room filled with servicemen and their dates at an NCO Dance at Fort Dix. Many of those guys did not want to be in the service. They were draftees. Many were against the war they were going to fight in. They signed up anyway, because they understood that you didn't fight injustice by being unjust.

After Dohrn came out of hiding, she plead guilty to her crimes and then refused to testify against one of her colleagues in crime. Not being a snitch is one thing, repudiating a life is another. Finally she refused to supply a handwriting sample to the FBI for comparison. This is not in keeping with the concepts that I have of being rehabilitated. This appears to be further defiance of government.

Now I am not one to quibble with a lack of respect for authority. I think it is our responsibility to question Authority. I believe that a healthy distrust (if not disrespect) of government is not only in the American spirit, but is also a very good thing. I do agree with Ronald Reagan, one of the biggest lies ever told is "I'm from the government I'm here to help." Nevertheless, the Constitution and the law, especially in 1969 provided ample ways to do the things Dohrn and her cronies wanted to achieve without their petulance violence or avarice. That she could be an attorney and still argue that the ends justified the means bewilders me and makes me wonder about her judgment. That she is of the same opinion still makes me sure she should not be allowed to practice law now.

So how do we deal with someone who has been a felon in the past but has served their time? Well I guess young people do make errors. Sometimes those errors are horrendous. I believe that we need to mete out punishments that fit both the severity of the behavior and which provide an opportunity to correct the behavior in the future. When that has occurred I believe we do forgive. We do not ostracize, we do not shame, we do not deny rights to those that have paid their penalty. On the other hand, we do not forget that there was once a severe lack of judgment on their part. We stand watch over them and the things they do a little more. We also test to see if the rehabilitation has become full, partial or not at all apparent. We act accordingly. In the case of Bernardine Dohrn, based on what I have read and been told, her rehabilitation is partial. As long as she truly believes what she did and what she advocated was justified, I give her all of her rights, including the one to have any opinion she wants. I just wouldn't feel comfortable granting her the privilege to practice law.

Does that make sense, or does it make me a hypocrite?


Hattip: The ABA LAW JOURNAL NEWS NOW

Around the Universe...Too Much News!!

Wow it feels like this was a huge week. Here I was in bucolic Woodloch Pines in the Poconos having the time of my life while the world was attacking freedoms and limiting liberty. So lets see what I missed:

1. Judge Okays an "Innocent Pedophile's" Right to Publish Clean Photo's of Children on His Blog.

This article from the ABA tells of how a good scare can completely destroy liberty among those that do not understand freedom.

Self-admitted pedophile Jack McClellan has been going around telling everyone he is ok with sex with little kids and that he is Sexually attracted to these kids... but there are no kids that have stepped up to admit being with him. Hence other than having weird thoughts he hasn't done anything wrong... except to scare the bejesus out of parents in Southern California.

Two parents of youngsters sought to restrain this otherwise homeless sycophant from coming near their children. They sought to stop him from loitering near places where kids gather, and to keep 30 feet away from children. They also sought to stop him from putting and publishing pictures of kids on his website. Now these were not pornographic pictures... these are ANY PICTURES.

I originally didn't think there was a problem with the 30 foot rule, but then again, I was barely awake when I first read this article. Not only is the restraint not limited to a specific child, but it also seems like a prior restraint which could basically keep this guy out of places to eat, receive health care, even use bathroom facilities. The guy sexually idealizes kids, but as far as we can tell hasn't acted on it. This order sets him up for being arrested.

Now the problem is...what if he does. Do you want to be the judge who said we couldn't stop him until he hurt someone?

Evidentially neither did the judge in this case, one Melvin Sandvig of the LA Superior court. The problem of course is that the fear of what this guy could do is juxtaposed against the right of his to both espouse his views and at the same time be allowed the same rights as anyone else with a controversial viewpoint.

What is to stop the Judges from ruling that people who favor guns and gun usage could be effectively banished because they may massacre kids in a school?

Unpopular ideas, even illegal ones, voiced, are not a crime. If we begin to criminalize thought and speech we could easily and quickly become a totalitarian state. Ask anyone who studies Nazi Germany.

This case is not so much about pedophilia as it is about a kind of terrorism. It is actually easier in many ways to defend the active pedophile than it is to go to bat for McClellan. I think the terror of what might happens makes it different. This guy doesn't have the money to oppose the ruling. I wonder if the ACLU will step up to defend his civil rights. It has got to be a tough one. Nevertheless if it were happening here, I would agree to do it. I wouldn't like it, but I'd do it as hard as I can. The constitution, and the law requires it.
Which leads me to my next headline:



2. ABA Journal Ethic's Piece Highlights the Struggle of a Lawyer Who Did the Ethical Thing.

Calling it "The Toughest Call" ABA Journal Editor Mark Hansen recounts the tail of Frank Armani and Francis Belge two assigned counsel who were called on to defend a mass murdering rapist, Robert Garrow.

In conversations with Garrow, the lawyers learned he had killed and raped others and that he knew where bodies of other decedents were. He told them and then they (having the duty to preserve the evidence) went and took pictures of the "graves" and of the dead.

They refused to reveal the information received by them in confidence. They were reviled by the press and by their friends and neighbors for their ethical decision.

Belge went on to leave the practice. Armani slowly rebuilt his reputation in the Syracuse area. Both suffered unfairly for what was clearly the toughest, but the only decision they could make.

This case caused a book "Privileged Information", and a movie "Sworn to Silence." Actor Peter Coyote retells the story of making the film on his website here. If you are interested in the real practice of law, or in ethics, or just want to see a great movie, rent this one. I understand the book (which appears to be out of print) is a fascinating read as well.

By the way, Kudo's on the ABA Journal website . I just found it and I love it!!! Great place to stay up on legal news.

3. House Democrats Wimp Out on FISA Bill: Will Anyone Stand Up and Save the Constitution???

The NY Times reports (here) that the democrat congress refused to stand up to the President once again and agreed to a bill amending the FISA court and to allow greater domestic spying by the executive branch without the benefit of judicial supervision.

The administration wants the right to eavesdrop on conversations that are routed through US routers. They already can eavesdrop on calls not routed through the US. They need a warrant to eavesdrop on calls wholly within the US. But internet calls outside of the US which happen by one of our ISP's are now eligible for warrantless eavesdropping.

Here's the thing. They do not have the ability to differentiate between terror calls and non terror calls. If they listen into non terror calls, they shouldn't be able to use the information, and it should not be stored. I don't trust Gonzoles and company to do that, and apparently neither does anybody else.

Here's another thing. The Dems know that it's unconstitutional, and they had the power to stop it by not bringing it to a vote, They had a bill that was a good one, but the President threatened to veto it. Well that means that the President will be able to go around saying the Democrats refused to act to keep America safe. So they caved in.

Ok maybe we are safe from terror... (maybe) but who will protect us from the Bushies???

4. The Truth About Pot, Weed, Marijuana.

I am not in favor of continuing a drug war which frankly we are losing. I would rather educate and teach, and then tax and let Darwin work out the rest.

In that vein, here and here are two articles that tell you why Pot is bad for you... (1 joint is equal to five cigarettes!!!) Read them. Then try to figure out why you are so suicidal you would introduce this crap into your body.

Consider yourself more educated.

Ok I am back from vacation, lets see if I can get a couple of posts out this week.
TLD

Look Out!!! : A Rant!!

Whenever an idea to "reform" criminal law comes down, there is an abject hue and cry from the defense bar, not because we don't want to improve the system, but because we see every "reform" as another way for the crazy people on the other side of the reform to screw with the wheels of justice. Not to mention what they want to do to our clients.

The newest salvo comes from Ohio, the land that gave us US v. Larry Flynt.

Take Megan's law. A registry where police can better keep track of people who are accused of sex crimes after release from prison. Defense counsel says no. It will be used to give the information to others. They will come and stalk people who have paid their price to society. It will include too many crimes that have nothing to do with sex but have to do with genitalia like prostitution or public lewdness or urinating in public. It will lump people who commit crimes against youngsters with people who have a fight with their girlfriend or who have sex with a minor when they are only a year or two older than the minor.

We are told we worry to much about the defendant's and put innocent victims at risk, then within a few years all our chickens come home to roost.

Now from Ohio, we have the newest in Fall colors, SEX OFFENDER GREEN. That's right, if you've been convicted of any level 3 Megan Law Crime, or you are related to anyone who has been convicted of such crime, or you borrow that car, everyone in the neighborhood, infact everyone on the highway will know it.

Well what's the matter with that? Well for starters less than 1% of all level three sex offenses take place between strangers. In fact most of the time it takes place within families. So now you put family members at risk. At risk for what you ask? How about crazy people who are peeved that the car owner didn't get life or death for their sentence and decide to take it into their own hands. How about the kid who goes into the movie in his dad's car. Can't wait to see the look on his date's father's face!! Or the guy who finally finds a job, works and then comes out to find his car demolished by vigilantes. You know, after a while, enough is really enough. Especially when it is clear that IT DOESN'T HELP!!

It is a vicious cycle. Politicians can't help but pander. It is in their makeup. They can't help but take advantage of a constituency that has a little voice, to make a bigger constituency happy. They are too weak of mind, or morals, to say "we will not abuse one group for another." And so we get:

Genarlow Wilson, locked up for 10 years for having oral sex with a girl 2 years younger than he.

Dopey politicians who want to declare prostitution which is a crime between consenting adults a sex crime.

Even dumber yet there is a politician who wants to make urinating in public and other public lewdness a sex crime.

Then we have even more lilied liver idiots who are gathering the homeless sex abuser
and herding them into trailers and moving them from place to place so nobody has too many of them in the neighborhood. Here's an idea, if you don't like the neighborhood, take a second job, make more money and MOVE. Don't tell a person who has made enough money to live somewhere that he can't live where he wants.

I would love to find a person who has been banished by some stupid anti sex offender zoning statute to sue the rear off some idiot county for a violation of his fair housing right.

We have kids going to jail for showing Playboy magazine to a younger kid. I'm not talking showing a centerfold to a 5 year old by a 19 year old, I am talking about a 16 year old showing a centerfold to a 14 year old. Hell the same kid is watching "R" rated movies on cable and on the internet. He is seeing as much as he wants to see. But if we have the chance to make it a sex crime... well then who cares.

How is it, that when 17 year old Genarlow Wilson has consensual oral sex with a 15 year old he is some crazed sex offender and treated like an adult, but when 24 year old Monica Lewinsky has oral sex with Bill Clinton she is some kind of Ing'enue.

Maybe it is my mood, but what we as a general public do not know about sex offenders could fill a book. So we listen to the potbangers and let them work us up into a mass hysteria until the people who do know about these things get tired of shouting over the masses. We mess it up really bad and then we wonder how we were lead astray. We ask no questions. We accept the garbage we are fed and then wonder why we are screwed up.

Oprah Winfrey says sex offenders can't be reformed! Great, who the hell gave Oprah a PhD. in anything besides eating? She was abused, so she is an expert? I had appendicitis and had an appendectomy, does that make me a surgeon?
We ignore what we don't want to hear. Instead of asking our own questions we just accept the pap that we are fed and then wait for more.

The Internet has more information on it than any library I have ever seen. We can get our answers right hear with the help of Google or Yahoo. But we won't. We will use it to listen to music, write a report, and watch a video, and then think we are all technological. Until we add the ability to reason critically, and to use the Internet for something other than porn and politics, all we have is a more expensive TV.