Category: Justice

Clarence Thomas Is a Miserable Excuse for a Human Being

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First, in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, he suggested that racist impact of government policy might be a good thing, because ……… the NBA:

In a less headline grabbing decision today, the Supreme Court ruled that those affected by discriminatory housing decisions can sue even if they can’t prove the discrimination was intentional.

Civil rights groups were handed an unexpected victory when in a 5-4 decision, the Supreme Court endorsed the consideration of disparate impact to establish racial discrimination in housing cases under the 1968 Fair Housing Act.

The otherwise pro-business Justice Kennedy wrote the majority opinion but one of the other noteworthy opinions came from conservative Justice Thomas’ dissent, in which he wrote, “the fact that a practice has a disparate impact is not conclusive evidence that a practice is discriminatory.”

A well enough point, but it was the example he used to illustrate this point that proved most curious.

“Over 70 percent of National Basketball Association (NBA) players have been black,” Thomas pointed out, arguing that “racial imbalances do not always disfavor minorities.”

“If, for instance, white basketball players cannot bring disparate-impact suits— then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color,” he continued.

Thomas went on to cite examples of minorities who “have owned or directed more than half of whole industries in particular nations” including “Jews in Poland” and “the Chinese in Malaysia” to argue that not all disproportional representation is bad.

Seriously?

Bigotry is OK because of the percentage of blacks in the NBA? Or the because of the relative prosperity of the Chinese in Malaysia?*

And then, in his dissent in Obergefell v. Hodges, the gay marriage case, he suggests that slavery did not cause any loss of dignity in its subjects:

Clarence Thomas slammed the majority that ruled in favor of marriage equality, saying the five U.S. Supreme Court justices had engaged in misguided efforts to advance dignity for same-sex couples.

Thomas – who wrote his own opinion, along with the court’s three other dissenters – argued that the Constitution contained no “dignity” clause.

………

“Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved,” Thomas said. “Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.”

This is pure crap, and I say it as someone who is required to thank God on a yearly basis because of, “What he did for me when I went forth from Egypt,” on Passover.

Not only is this a failure as a human being, it is a miserable failure as a legal dissent.

Yale Law School needs to apologize to the nation.

*Which was largely a result of the British Empire using ethnically divisive policies in order to maintain control.

Yesterday, the Supreme Court Issued Another Important Opinion

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Specifically, in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project the Supreme Court allowed disparate impact to continue to be considered in fair housing lawsuits:

Civil rights groups are breathing a little easier today, after the Court’s ruling in an important housing discrimination case. The question before the Court was whether claims brought under the Fair Housing Act, which prohibits housing discrimination “because of” race, can be based on an allegation that a law or practice has a “disparate impact” – that is, it has a discriminatory effect, even if it wasn’t motivated by an intent to discriminate. The distinction matters because it’s rare for a lawmaker, landlord, or developer to admit that a law or practice is intended to be discriminatory; civil rights groups believe that disparate-impact claims are an important tool to ferret out more subtle examples of housing discrimination.

I expected the court to go the other way, which would have made pursuing issues in housing discrimination nearly impossible.

As an aside, I believe that this also would also make it easier to pursue disparate impact challenges under section 2 of the Voting Rights Act, which, after the Supreme Court gutted section 5 a few years back, is the most effective portion of the law.

Fabulous Fabugasm!

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One Map Shows Every State in the US Where You Can Have a Same-Sex Marriage

The Supreme Court has declared gay marriage bans unconstitutional:

Putting itself back in the forefront of the gay rights revolution, the Supreme Court ruled by the narrowest margin on Friday that same-sex couples across the nation have an equal right to marry. The five-to-four decision was based firmly on the Constitution, and thus could be undone only by a formal amendment to the basic document, or a change of mind by a future Supreme Court. Neither is predictable.

Explicitly refusing to hold off deciding the issue to see how other parts of society may deal with the rising demand for gay acceptance and legitimacy, the Court declared that two clauses in the Fourteenth Amendment mean that a “fundamental right to marry” can no longer be denied because the partners are of the same sex. It did not create a new right, but opened a long-existing one to those partners.

The ruling was the most important victory in a cultural revolution that began almost exactly forty-six years ago, when patrons of a gay bar — the Stonewall Inn in New York City’s Greenwich Village — fought back against a police raid. The events that began on the night of June 28, 1969, are widely known as the beginning of “gay pride” and an unapologetic campaign for equality.

The decision in Obergefell v. Hodges expressly overruled the Court’s only prior ruling directly on same-sex marriage — a one-line decision in the 1972 case of Baker v. Nelson, declaring that a claim to such marriage did not raise “a substantial question” for the Court to resolve.

As The Onion puts it, “Scalia, Thomas, Roberts, Alito Suddenly Realize They Will Be Villains In Oscar-Winning Movie One Day“.

I think that you also need to read the last paragraph of the decision, which is really quite beautiful:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Fabulous!

To my Facebook readers: click through for the slide show.

In the next few years, the right wing will have to find someone else to hate, I guess.

This is Not a Surprise

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In rather unsurprising news, leaked autopsy results reveals that Freddie Gray’s death was caused by a “high energy blow” during his ride in a paddy wagon:

Freddie Gray suffered a single “high-energy injury” to his neck and spine — most likely caused when the police van in which he was riding suddenly decelerated, according to a copy of the autopsy report obtained by The Baltimore Sun.

 The state medical examiner’s office concluded that Gray’s death could not be ruled an accident, and was instead a homicide, because officers failed to follow safety procedures “through acts of omission.”

 Though Gray was loaded into the van on his belly, the medical examiner surmised that he may have gotten to his feet and was thrown into the wall during an abrupt change in direction. He was not belted in, but his wrists and ankles were shackled, putting him “at risk for an unsupported fall during acceleration or deceleration of the van.”

 The medical examiner compared Gray’s injury to those seen in shallow-water diving incidents.

In related news, the Prosecutors have moved to have the evidence sealed, or to have all the evidence posted online:

Baltimore State’s Attorney Marilyn J. Mosby wants a judge to block defense attorneys from selectively releasing evidence in the Freddie Gray case — or facilitate an agreement between the two sides to post all of the evidence online in one fell swoop.

In an unusual Circuit Court filing this week, Mosby’s office requested a protective order barring defense attorneys for the six Baltimore police officers charged in Gray’s arrest and death from releasing any of the evidence due to them June 26 through court discovery, including Gray’s autopsy.

Absent that order, however, prosecutors said in the filing they would rather accept a deal to post all of the evidence online than “remain silent” — as is required of them by law — while defense attorneys leak evidence that suits their needs, which Mosby’s office said they are inclined to do.

“Indeed, if the Defendants were to consent and the court would so order, the State would have no objection to posting the entire autopsy report on the internet, along with all of the discovery in the case,” the prosecutors wrote. “Defendants, however, want to have it both ways. They want the freedom to publicize selected aspects of the discovery, while requiring the State to follow the law that prevents comments in order to ensure a fair trial.”

It was unclear whether the suggestion in the court filing was a rhetorical device or if the defense attorneys would consider the offer. Both the state’s attorney’s office and defense attorneys for the accused officers declined to comment on the motion Tuesday.

The motion to seal the evidence is not surprising, but the motion to release all the evidence is highly unusual:

Baltimore State’s Attorney Marilyn J. Mosby wants a judge to block defense attorneys from selectively releasing evidence in the Freddie Gray case — or facilitate an agreement between the two sides to post all of the evidence online in one fell swoop.

In an unusual Circuit Court filing this week, Mosby’s office requested a protective order barring defense attorneys for the six Baltimore police officers charged in Gray’s arrest and death from releasing any of the evidence due to them June 26 through court discovery, including Gray’s autopsy.

Absent that order, however, prosecutors said in the filing they would rather accept a deal to post all of the evidence online than “remain silent” — as is required of them by law — while defense attorneys leak evidence that suits their needs, which Mosby’s office said they are inclined to do.

“Indeed, if the Defendants were to consent and the court would so order, the State would have no objection to posting the entire autopsy report on the internet, along with all of the discovery in the case,” the prosecutors wrote. “Defendants, however, want to have it both ways. They want the freedom to publicize selected aspects of the discovery, while requiring the State to follow the law that prevents comments in order to ensure a fair trial.”

It was unclear whether the suggestion in the court filing was a rhetorical device or if the defense attorneys would consider the offer. Both the state’s attorney’s office and defense attorneys for the accused officers declined to comment on the motion Tuesday.

My guess here is that they the 2nd proposal is about appearing to be reasonable, even if the alternate proposal is unreasonable on a lot of levels.

My guess is that the prosecutors are (rightly) concerned that the defense will taint the jury pool, and they want to prevent this, because if the trial gets moved to the Eastern Shore or Fredrick, or Hagerstown, she will be forced to deal with a jury that is hostile to the the residents of Baltimore City (i.e. black people), and deeply dubious of any accusations of law enforcement misconduct.

It would be a nightmare scenario for the prosecution.

And from the Socialist Paradise of Montana ……… Wait? What? Montana?!?!?! ……… Whiskey Tango Foxtrot?!?!?!?

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The city of Missoula, Montana has apparently had enough of mismanagement of their water infrastructure by its Carlyle Group owned private water company, Mountain Water Company, along with the normal private equity hijinks, so they tried to buy it.

The Carlyle Group refused, and so the city condemned the company, and seized it by eminent domain, and now Missoula has won a court victory confirming their right to seize the utility:

Missoula won its legal fight to take ownership of Mountain Water Co. and the city’s drinking water system Monday.

 In a 68-page decision, Missoula District Court Judge Karen Townsend said the city “carried its burden of proof” and showed that “its contemplated use of the water system as a municipally owned water system is more necessary than the current use as a privately owned for-profit enterprise.”

 “Based on credible evidence at trial, the Court concludes that the object of this condemnation proceeding, the use of the water system, is a public use for which the right of eminent domain may properly be exercised” under Montana law, Townsend said.

 The judge said she “considered the broad range of circumstances,” and weighed “the benefits to be derived from the proposed public use against the impairments to the existing use.”

 Her conclusion: “The proposed public use is more reasonable” and “proper.”

 The city made its case, she continued, and proved that “the taking is a more necessary public use.”

 The city did try to purchase Mountain Water Co. from its owner, global equity firm The Carlyle Group, Townsend said, “and the final written offer was rejected.” It is now, she said, Missoula’s “right to acquire” the water system by exercising its power of eminent domain.

Basically, Mountain Water Company is not performing timely maintenance on the infrastructure (after all, some resources have to go toward paying inflated private equity “Management Fees”):

………

 The water system pumps groundwater from the Missoula aquifer through 37 wells and 327 miles of water main. The system serves 23,500 customers, with 1,500 of them outside the city limits. The city of Missoula estimates that an investment of $66 million to $95 million is needed to bring the system to industry standards.

  • Nearly 50 percent of the mains are more than 45 years old. Twenty percent of the mains have exceeded their useful life.
  • While 81 percent of the system is metered, only 40 percent of the water is measured through meters. The average age of the meters is 20 years and will require $16 million to $20 million to achieve industry standards.
  • Nearly 75 percent of the service lines are galvanized steel and have exceeded their useful life. The cost to bring the lines up to industry standards is roughly $25 million.
  • Rattlesnake Dam and the intake dam have not been maintained and show problems with erosion, slope and stability, requiring $3 million in repairs.
  • The water system leaks at a rate of 50 percent. An estimated 8,000 gallons leak every minute, well above the national Infrastructure Leakage Index.

A 50% leakage rate?  Seriously?  In a locality that is already abnormally dry, and in a world that is drawing down its aquifers at an alarming rate?

And the Carlyle Group thinks that this is all hunky dory?

And then there is the attempt by the Carlyle Group to represent the purchase of a $945.00 coffee maker as a capital expenditure.

Clearly, the private sector is not working the way that all those free market mousketeers would lead us to believe.

Full disclosure:  I worked for a few years at United Defense, which was owned by the Carlyle Group, before it was sold to BAE Systems.

H/T Naked Capitalism.

Cleveland Prosecutors and Police Just Got Served

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On Monday, I noted that communities in Cleveland had used a peculiarity in Ohio law to ask a judge to file charges against the two police involved in the shooting death of Tamir Rice.

Well, the judge has ruled that there is probable cause to file charges, but that he cannot actually file the charges:

A judge in Cleveland ruled Thursday that probable cause existed to charge two Cleveland police officers in the death of a 12-year-old boy, Tamir Rice, but the judge also said he did not have the power to order arrests without a complaint being filed by a prosecutor.

In his ruling, Judge Ronald B. Adrine, presiding judge of the Municipal Court, found probable cause to charge Officer Timothy Loehmann, who fired the fatal shot, with murder, involuntary manslaughter, reckless homicide and dereliction of duty. He also found probable cause to charge Officer Loehmann’s partner, Officer Frank Garmback, with negligent homicide and dereliction of duty.

“This court determines that complaints should be filed by the prosecutor of the City of Cleveland and/or the Cuyahoga County prosecutor,” Judge Adrine wrote.

The shooting of Tamir last Nov. 22 was one of a series of killings of unarmed black males by police officers around the country that have prompted widespread protests and calls for reform in race relations and the use of force by officers. The county prosecutor, Timothy J. McGinty, has been handling the case, and although Judge Adrine’s ruling is not binding, it puts added pressure on Mr. McGinty in a closely scrutinized case.

Mr. McGinty released a terse statement indicating that he would not be rushed into filing a criminal complaint.

………

This week, a group of activists and community leaders asked the court to have the officers arrested under an Ohio law that allows “a private citizen having knowledge of the facts” to start the process by filing an affidavit with a court. They argued that the widely seen video of an officer killing Tamir had given nearly everyone “knowledge of the facts.”

The Ohio law, in effect in various forms since 1960, is unusual and rarely invoked, and lawyers have disagreed about what might be achieved by using it.

………

The Cuyahoga County sheriff’s office conducted a five-month investigation and handed its findings to Mr. McGinty’s office early this month, but they have not been made public, and Mr. McGinty said his office still had investigating of its own to do. Eventually, his office said, prosecutors will take the case to a grand jury, which will decide whether to issue indictments. But no one could say how long that would take.

That, the petitioners said, was the problem; they argued that if the people involved had not been wearing uniforms, they would have been arrested long ago. Yet nearly seven months after Tamir died, no decision has been made.

“The video in question in this case is notorious and hard to watch,” Judge Adrine wrote in his order. “After viewing it several times, this court is still thunderstruck by how quickly this event turned deadly,” he wrote, adding that Officer Loehmann fired his gun before the car he was riding in had even come to a stop.

It’s been 7 months.

Prosecutors have not even interrogated Loehmann.

When prosecutor McGinty says that he will, “Not be rushed into filing a criminal complaint,” it means that he has no intention at all of prosecuting these officers unless he is absolutely forced to.

Unlike, Baltimore States Attorney Marilyn Mosby, and like St. Louis County Prosecuting Attorney Robert McCullogh and Richmond County District Attorney Dan Donovan, McGinty is trying his level best make this case go away, or, if this proves unavoidable, he is trying to deliberately lose.

Hopefully, this judge’s ruling will put his back to a wall, but I do not see how you get an indictment, much less a conviction, with a prosecutor who is trying to lose.

Obama’s Lawless Behavior in Support of the Security State

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You may recall that the NSA bulk data collection of phone records were ruled by an Federal appellate court.

It not turns out that the Obama administration tried to get a ruling from the FISA court saying that they could ignore this ruling.

The interesting bit here is that the FISA court is technically a district court, and so is subordinate to an appellate court.

This shows a complete contempt for the rule of law:

The Obama administration has asked a secret surveillance court to ignore a federal court that found bulk surveillance illegal and to once again grant the National Security Agency the power to collect the phone records of millions of Americans for six months.

The legal request, filed nearly four hours after Barack Obama vowed to sign a new law banning precisely the bulk collection he asks the secret court to approve, also suggests that the administration may not necessarily comply with any potential court order demanding that the collection stop.

US officials confirmed last week that they would ask the Foreign Intelligence Surveillance court – better known as the Fisa court, a panel that meets in secret as a step in the surveillance process and thus far has only ever had the government argue before it – to turn the domestic bulk collection spigot back on.

Justice Department national security chief John A Carlin cited a six-month transition period provided in the USA Freedom Act – passed by the Senate last week to ban the bulk collection – as a reason to permit an “orderly transition” of the NSA’s domestic dragnet. Carlin did not address whether the transition clause of the Freedom Act still applies now that a congressional deadlock meant the program shut down on 31 May.

But Carlin asked the Fisa court to set aside a landmark declaration by the second circuit court of appeals. Decided on 7 May, the appeals court ruled that the government had erroneously interpreted the Patriot Act’s authorization of data collection as “relevant” to an ongoing investigation to permit bulk collection.

Carlin, in his filing, wrote that the Patriot Act provision remained “in effect” during the transition period.

“This court may certainly consider ACLU v Clapper as part of its evaluation of the government’s application, but second circuit rulings do not constitute controlling precedent for this court,” Carlin wrote in the 2 June application. Instead, the government asked the court to rely on its own body of once-secret precedent stretching back to 2006, which Carlin called “the better interpretation of the statute”.

While it is true that  the FISA court is not technically under the 2nd court of appeals, which ruled the program illegal, because they are not in the 2nd district, (technically, they are not in any district) but blithely asking the court to overrule an appeals court shows a complete contempt for due process and the rule of law.

Worst Constitutional Law Professor Ever!™

After 6 Months, It’s Good That People in Cleveland Have Taken the Law into Their Own Hands

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Warning,graphic content

I am not suggesting that anyone has engaged in extrajudicial violence or vigilante acts. Rather I am referring to the fact that community leaders in Cleveland are using a peculiarity in Ohio law to file charges without the police or prosecutors:

Community leaders in Cleveland, distrustful of the criminal justice system, said Monday that they would not wait for prosecutors to decide whether to file charges against the police officers involved in the fatal shooting of 12-year-old Tamir Rice last year. Instead, they will invoke a seldom-used Ohio law and go directly to a judge to request murder charges against the officers.

The highly unusual move is the latest sign that some African-Americans in Cleveland and around the country have lost confidence in a system that they see as too quick to side with police officers accused of using excessive force against blacks.

The investigation into Tamir’s shooting was handed to the county prosecutor last week, but local leaders are skeptical because of how similar cases have ended. In New York, a grand jury did not indict in the death of Eric Garner, who had been put in a chokehold by a police officer. State and federal authorities said there was no evidence to charge Officer Darren Wilson in the fatal shooting of Michael Brown in Ferguson, Mo. Last month, prosecutors said a white police officer in Madison, Wis., would not be charged for killing an unarmed 19-year-old man.

………

Ohio is one of a handful of states that allow residents to request an arrest without approval from the police or prosecutors. It is difficult to know how the case will play out because there is little precedent for a citizen to request an arrest in such a contentious, high-profile case.

………

By going directly to a judge, community leaders are trying to circumvent that process. Ohio law allows anyone with “knowledge of the facts” to file a court affidavit and ask a judge to issue an arrest warrant. If approved, the arrest would be followed by a public hearing, and community members said that was preferable to allowing prosecutors to make the decision in secret.

………

Tamir was fatally shot in November while he played in a park. A 911 caller had reported that the boy was waving a gun that was “probably fake.” When officers arrived, they pulled their car into the park, next to the boy. Within two seconds, an officer, Timothy Loehmann, shot Tamir in the abdomen. The boy’s gun, it turned out, was a toy replica of a Colt pistol and fired plastic pellets.

It’s been 6 months, and not only have we heard nothing from prosecutors, Officer Timothy Loehmann, who burst from the car with gun blazing at a 12 year old kid, has not even been questioned.

It’s about time someone to file charges against the cops.

It Is Official, Kansas Is Clinically Insane

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Sam Brownback has had a number of run-ins with the Kansas courts, and now he is threatening to completely defund Kansas courts if they continue to rule against him:

The fight between Gov. Sam Brownback of Kansas and the state’s judicial branch has escalated, with the governor last week signing into law a bill that could strip state courts of their funding.

The measure, at the end of a lengthy bill that allocated money for the judiciary this year, stipulates that if a state court strikes down a 2014 law that removed some powers from the State Supreme Court, the judiciary will lose its funding.

The 2014 law took the authority to appoint chief judges for the district courts away from the Supreme Court and gave it to the district courts themselves. It also deprived the state’s highest court of the right to set district court budgets. Critics said the law was an attempt by Mr. Brownback, a Republican, to stack the district courts with judges who may be more favorable to his policies.

………

But in passing a separate budget bill to keep the third branch of government from shutting down, Republican lawmakers took the opportunity to insert language that would shield the 2014 law.

“I’ve never seen anything like this,” said Matthew Menendez, counsel at the Brennan Center for Justice in New York, which is helping to represent a Kansas judge who is challenging the constitutionality of the 2014 law. “It seems pretty clear that these mechanisms have been an effort by the governor and the Legislature to try and get a court system that is more in line with their philosophy.”

Richard E. Levy, a constitutional law professor at the University of Kansas, likened the measure in the judiciary budget bill to Congress’s passing a law outlawing abortion and then telling the judicial branch that it will lose its funding if it finds the law unconstitutional.

“That kind of threat to the independence of the judiciary strikes me as invalid under the separation of powers principle,” Mr. Levy said in an interview on Friday.

Considering the news coming out of Turkey (more on that later), I find it kind of ironic that Sam Brownback is doing his level best to use Recep Tayyip Erdoğan’s play book, which was just rejected by Turkish voters.

[on edit]

I may not have been completely clear: This bill would Completely Defund the Entire Kanasas State Court System, so basically, aside from traffic court, there would be no courts operating in the state.

When a DA Wants to Indict a Ham Sandwich

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The ham sandwich gets indicted.

The DA in North Carolina has indicted former officer Michael Slager for the murder of Walter Scott:

Walter Scott, a 50-year-old black man, was unarmed, facing away from the police officer, and haphazardly attempting to flee — but that didn’t stop Michael Slager, a white North Charleston, South Carolina, police officer at the time, from firing his gun at least eight times at the fleeing man, killing him.

On June 8, prosecutors announced that a grand jury indicted Slager, who’s no longer with the police force, on murder charges, according to CNN‘s Shawn Nottingham. The case will now proceed to trial. If Slager is convicted, prosecutor Scarlett Wilson said he would serve 30 years to life in prison with no chance of parole.

The shooting was recorded on film by a bystander, who turned over the video footage to authorities. The video has been widely credited with leading to charges of murder against Slager, the officer’s firing from the police force, and now the indictment.

Notice how the DA gets an indictment when he isn’t trying to lose?

In New York City and Ferguson, the DAs tried to lose the case, and they succeeded.

In North Charleston, the DA chose not to give a cop a get out of jail free card for a killing.

Oh, Snap!

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In arguments before the Supreme Court, Antonin “Fat Tony” Scalia presented the case of convicted murderer Henry Lee McCollum as a perfect justification for the death penalty.

It turns out that McCollum was innocent:

A little over two decades ago, Supreme Court Justice Antonin Scalia was dismissive of then-Justice Harry Blackmun’s concerns about the death penalty. In fact, Scalia had a case study in mind that demonstrated exactly why the system of capital punishment has value.

 As regular readers may recall, Scalia specifically pointed to a convicted killer named Henry Lee McCollum as an obvious example of a man who deserved to be put to death. “For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat,” Scalia wrote in a 1994 ruling. [Callins v. Collins, which involved Texas, not North Carolina] “How enviable a quiet death by lethal injection compared with that!”

 For Scalia, McCollum was the perfect example – a murderer whose actions were so heinous that his crimes stood as a testament to the merit of capital punishment itself.

 Yesterday, McCollum was pardoned. Scalia’s perfect example of a man who deserved to be killed by the state was innocent. North Carolina’s News & Observer reported:

Gov. Pat McCrory on Thursday pardoned two half-brothers who were exonerated of murder after spending three decades in prison.

The governor took nine months to make the decision, saying he thoroughly reviewed the pardons sought by Henry McCollum and Leon Brown. Both men are intellectually disabled.
If this story sounds at all familiar, it was last fall when a judge ordered the men released. The confessions appeared to have been coerced 30 years ago and new DNA evidence implicated another man whose possible involvement had been overlooked at the time.

As recently as 2010, the North Carolina Republican Party used a McCollum photo on campaign fliers to attack a Democratic candidate as “soft on crime.”

 McCollum hadn’t done anything wrong.

(emphasis mine)

Scalia’s habit of assuming facts not in evidence is really starting to wear thin.

This is something that judges, at least judges outside of Texas, should never do.

Another Cop Actually Convicted by a Jury

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LAPD Officer Mary O’Callaghan was convicted of “assault under color of authority” for repeated kicking a woman that she had already handcuffed:

The camera captured the Los Angeles police officer hissing a cruel threat at the handcuffed woman, striking at her throat with an open hand and kicking her in the crotch.

The video of the arrest, recorded by a patrol-car camera, persuaded jurors to convict Officer Mary O’Callaghan on Friday of assault under color of authority.

During the two-week trial, in which the defense argued that O’Callaghan hadn’t used excessive force, the video gave jurors an unvarnished view of what happened, one said.

“It played a big role,” said Deedra Garcia, the jury forewoman. “It gave us a lot of evidence.”

………

The prosecution’s case centered on the video, which showed O’Callaghan jab at Thomas’ throat with an open hand and threaten to break her arms and kick her in the crotch. In the video, O’Callaghan then raises her boot and strikes Thomas, whose body shakes in response.

The recording captured Thomas — who asked officers for an ambulance more than 30 minutes before one was called — breathing heavily and repeatedly saying, “I can’t.”

A video from a dashboard camera in another patrol car, which was also played during the trial, recorded O’Callaghan laughing and smoking a cigarette as she peeked inside the car at Thomas, whose legs were tied with a nylon hobble restraint.

“That ain’t a good sign,” O’Callaghan says out loud in the video.

Assistant Head Deputy Dist. Atty. Shannon Presby told jurors that O’Callaghan was “immune from any empathy” and that the video clearly showed the officer kicking Thomas in the crotch and the stomach.

Even 5 years ago, it would have been unlikely that the Jury would have voted to convict, and if they had it would have taken much longer than their two days deliberating.

I expect her to get no jail time, though.

I doubt that the recent push-back against police impunity has permeated the judiciary.

Live in Obedient Fear, Citizen

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In yet another case of prosecutorial overreach, we have motions by the prosecutors in another of the FBI’s entrapment efforts forbid defense counsel from putting forward their case:

NSA whistleblower Edward Snowden has become such a powerful symbol of government overreach that federal prosecutors in a terror case in Chicago are asking the judge to forbid defense attorneys from even mentioning his name during trial, for fear that it would lead the jury to disregard their evidence.

The upcoming trial is of Adel Daoud, a slow-witted Chicagoland teenager caught in yet another FBI terror sting aimed at someone vulnerable to manipulation. An undercover federal agent provided Daoud with a fake car bomb parked outside a downtown Chicago bar, and then let him push the detonator.

Much of the evidence in the case — involving Daoud’s online explorations into Islam and jihad — was gathered through surveillance conducted using secret warrants issued by the Foreign Intelligence Surveillance Act (FISA) court.

Prosecutors from the U.S. Attorney’s office in Chicago asked Judge Sharon Johnson Coleman on Wednesday to prohibit the defense from mentioning Snowden’s name — along with a number of other things, such as the existence of the National Security Agency, or a speech by Senator Dianne Feinstein in which she cited “a plot to bomb a downtown Chicago bar” as an example of one that was thwarted thanks to FISA authorities.

Their concern: Those topics “are irrelevant and would tend to elicit jury nullification, so the defendant should be barred from inquiring of witnesses, presenting evidence, or arguing to the jury about them.”

A key issue in the case has already been extensively litigated. Judge Coleman in January 2014 ruled that Daoud’s security-cleared lawyers should be allowed to see all the classified materials the government submitted in order to get their FISA warrants.

………

For good measure, the prosecutors also don’t want the defense to claim entrapment, either:

[T]he defendant should be precluded from arguing or suggesting that the undercover technique the government used in the underlying investigation was improper. Any argument attacking the government’s investigative techniques would not only be improper, but it should also trigger an instruction that such investigative techniques are entirely proper.

This is crap.

It is corrosive to concept of a fair trial that has developed in the US, and England before it, over the past thousand years.

Live in Obedient Fear, Citizen

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We now learn that you can go to jail for clearing your browser history, even if you are unaware of any law enforcement investigation:

Khairullozhon Matanov is a 24-year-old former cab driver from Quincy, Massachusetts. The night of the Boston Marathon bombings, he ate dinner with Tamerlan and Dhzokhar Tsarnaev at a kebob restaurant in Somerville. Four days later Matanov saw photographs of his friends listed as suspects in the bombings on the CNN and FBI websites. Later that day he went to the local police. He told them that he knew the Tsarnaev brothers and that they’d had dinner together that week, but he lied about whose idea it was to have dinner, lied about when exactly he had looked at the Tsarnaevs’ photos on the Internet, lied about whether Tamerlan lived with his wife and daughter, and lied about when he and Tamerlan had last prayed together. Matanov likely lied to distance himself from the brothers or to cover up his own jihadist sympathies—or maybe he was just confused.

Then Matanov went home and cleared his Internet browser history.

Matanov continued to live in Quincy for over a year after the bombings. During this time the FBI tracked him with a drone-like surveillance plane that made loops around Quincy, disturbing residents. The feds finally arrested and indicted him in May 2014. They never alleged that Matanov was involved in the bombings or that he knew about them beforehand, but they charged him with four counts of obstruction of justice. There were three counts for making false statements based on the aforementioned lies and—remarkably—one count for destroying “any record, document or tangible object” with intent to obstruct a federal investigation. This last charge was for deleting videos on his computer that may have demonstrated his own terrorist sympathies and for clearing his browser history.

Matanov faced the possibility of decades in prison—twenty years for the records-destruction charge alone.

Federal prosecutors charged Matanov for destroying records under the Sarbanes-Oxley Act, a law enacted by Congress in the wake of the Enron scandal. The law was, in part, intended to prohibit corporations under federal investigation from shredding incriminating documents. But since Sarbanes-Oxley was passed in 2002 federal prosecutors have applied the law to a wider range of activities. A police officer in Colorado who falsified a report to cover up a brutality case was convicted under the act, as was a woman in Illinois who destroyed her boyfriend’s child pornography.

Prosecutors are able to apply the law broadly because they do not have to show that the person deleting evidence knew there was an investigation underway. In other words, a person could theoretically be charged under Sarbanes-Oxley for deleting her dealer’s number from her phone even if she were unaware that the feds were getting a search warrant to find her marijuana. The application of the law to digital data has been particularly far-reaching because this type of information is so easy to delete. Deleting digital data can inadvertently occur in normal computer use, and often does.

How the F%$# are they using Sarbanes f%$#ing Oxley on this?

The practice of overcharging by prosecutors by “innovative” application of the law is a cancer on the justice system.

I Did Not See This Coming

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FIFA President Sepp Blatter has resigned from his position:

Sepp Blatter rocked the world of soccer on Tuesday by unexpectedly saying he would step down as FIFA president in the wake of a corruption investigation that reportedly may include the embattled chief himself.

Citing sources familiar with the case, The New York Times and ABC News reported on Tuesday that Blatter was being investigated by the Federal Bureau of Investigation and U.S. prosecutors. Reuters was not immediately able to confirm the report. Blatter has not been charged with any wrongdoing.

Blatter, 79, announced his decision to step down at a hastily arranged news conference in Zurich, six days after police raided a hotel in the city and arrested several FIFA officials, and four days after he was re-elected to a fifth term as FIFA president.

Blatter said an election to choose a new president would be held as soon as possible, though a FIFA official said it would probably not take place until at least December.

I have to figure that this is part of some sort of deal with either Swiss or US prosecutors.

My guess would be on the Swiss, because he must be desperate for a deal which prevents his extradition to the United States.

I’m Shocked! Shocked! To Find That Gambling Is Going on This Establishment!

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Scott Walker is under investigation for possible illegal coordination between his campaign, and so-called “independent” campaign groups.

Well, the prosecutor who is investigating the matter, it is called a “John Doe” proceeding under Wisconsin law, but this is being challenged in court.

The Wisconsin Supreme Court is to here this challenge, but it now appears that some of the judges in question appear to be involved in the scheme:

Wisconsin Governor Scott Walker is facing an investigation into whether his 2012 recall campaign illegally coordinated with nonprofit groups that spent money to support him. Campaign finance laws prohibit “coordination” because they would allow candidates to run shadow campaigns outside of campaign finance law. The Center for Media & Democracy’s PRWatch said, “Prosecutors gathered evidence of Walker secretly raising millions of dollars for the supposedly ‘independent’ nonprofit Wisconsin Club for Growth (WiCFG), with the express purpose of bypassing campaign finance disclosure laws.” The secret donations were revealed to include money from a mining company that received permission to open a mine soon after Walker won reelection.

The investigation is at a preliminary stage, called a John Doe proceeding under Wisconsin law, which determines whether charges are filed. PRWatch said that “Walker and his allies have fought the probe not by denying coordination, but by claiming the rules don’t apply to so-called ‘issue ads’ that stop short of expressly telling viewers how to vote.” The Wisconsin Supreme Court is considering one of the many lawsuits filed to stop the investigation.

In a newly released court filing, the prosecutor in the case raised the question of whether one or two of the justices hearing the case are implicated in the same kind of scheme. Two groups suspected of coordinating with Walker’s campaign have also spent $10 million to elect the four-justice conservative majority. The prosecutor’s heavily redacted brief also suggests that two justices, or, at least, their campaigns, may have committed the same offense that is at the heart of the Walker investigation—coordinating with dark money groups to get reelected.

Special prosecutor Francis Schmitz—a Republican who voted for Walker in 2012—noted that the groups “had significant involvement in the election of particular justices,” though the document redacts the names of the justices and the groups. (The suspects in a grand jury or John Doe proceeding remain anonymous, unless and until charges are filed.) While the justices are not named, the brief refers to the justices benefiting from money spent by John Doe groups to support the reelection of the justices, and the groups have spent money to support the election of all four members of the court’s conservative majority.

Schmitz’s brief also referred to a “history of control, collaboration and coordination” between the groups and “political campaign committees that may potentially include judicial candidates.” The brief describes persons who worked for both a supreme court campaign and the John Doe groups. A redacted portion quotes an email that seems to provide evidence that a group was “actively involved” in a justice’s reelection campaign. Other redacted portions seem to describe contacts and “close connections” between the justice’s campaign and John Doe groups, before concluding:

Justice David Prosser was up for reelection in 2011, when Walker faced a recall election. At the time, the Wisconsin Supreme Court was hearing a legal challenge to Walker’s controversial law restricting collective bargaining rights. Both sides in the debate—unions and big business—spent big in the supreme court election. Two of the John Doe groups spent around $2.5 million to reelect Justice Prosser—much more than the justice’s own campaign.

Anyone wanna take money on whether David Prosser, who has been alleged to have physically assaulted a fellow justice in the court offices, is going to recuse himself?

I’ll take 5:1 odds that he won’t recuse himself.

This is Nearly Unprecedented

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(Retitled on 7/1/2016 because some moron at Google™ Adsense™ flagged it as sexually explicit because of the title)

In response to prosecutorial misconduct, a California judge has dismissed the whole Orange County DA’s Office from a case:

Prosecutorial and police misconduct are often dismissed as just a few bad apples doing a few bad apple-ish things. But what happens when it’s entrenched and systemic and goes unchecked for years? That looks to be the case in Orange County, California, where the situation got so completely out of hand this spring that Superior Court Judge Thomas Goethals issued an order disqualifying the entire Orange County District Attorney’s Office (that’s all 250 prosecutors) from continuing to prosecute a major death penalty case.

 After literally years of alleged misconduct involving jailhouse informants, as well as prosecutors’ repeated failures to turn over exculpatory material, Judge Goethals determined in March that the office can simply no longer work on the case of mass murderer Scott Dekraai, who pleaded guilty last year to killing his ex-wife and seven others at a beauty salon in 2011.

Revelations of misconduct in the Dekraai case have raised questions about patterns of obstruction and deception that have unraveled various other murder cases in the county, which has a population larger than that of 20 different states. Other cases involving informants who were eliciting illegal confessions have emerged, entire cases have collapsed, and more may follow. The story goes way back to the 1980s, as R. Scott Moxley explains at length in the OC Weekly, to a prosecutorial scandal that ended in the execution of one defendant and a lengthy sentence for his alleged co-conspirator. Their convictions were based on the testimony of various jailhouse informants even though they told conflicting stories. That scandal rocked the area then, and this new one shows eerie parallels.

………

 One issue in the Dekraai case is whether deputies deliberately placed him near a prized informant to elicit illegal confessions. While preparing for the penalty phase of the trial, Santa Ana assistant public defender Scott Sanders, who is defending Dekraai, discovered that a jailhouse informant who had produced damning evidence about his client had done the same thing in another case Sanders was handling. After further investigation, Sanders claimed that a branch of the Orange County Sheriff’s Department called “special handling” would deliberately place jailhouse snitches in cells next to high-value inmates awaiting trials, with instructions to collect confessions, a practice that is unconstitutional.

 Together with his law clerks, Sanders spent a year unearthing and then reconstructing a tranche of 60,000 pages of records indicating that the county sheriff’s office routinely used and coordinated with those informants to get around the constitutional prohibition on eliciting incriminating statements from defendants who had lawyered up and should not have been interrogated. The sheriff’s department has admitted that mistakes were made. The DA’s office claims there was nothing coordinated or systemic going on. But Judge Goethals disagreed, finding that the new revelations called into question the integrity of the entire Orange County District Attorney’s office.

Initially, Judge Goethals had ruled that the DA’s office was negligent in failing to turn exculpatory information over, finding that “the district attorney’s well-documented failures in this case, although disappointing, even disheartening to any interested member of this community, were negligent rather than malicious.” But that seems to have changed following further revelations of refusal to turn over evidence.

In an explosive moment following a hearing last year, Sanders revealed that the Orange County Sheriff’s Department has maintained a massive, secret, 25-year-old computerized record-keeping system called TRED. These TRED documents were full of potentially exculpatory data, but the agency officials had systematically refused to turn any of them over, or even acknowledge their very existence, to defense counsel.

In his March order, Goethals wrote: “It is now apparent that the discovery situation in this case is far worse than the court previously realized. In fact, a wealth of potentially relevant discovery material—an entire computerized data base built and maintained by the Orange County Sheriff over the course of many years which is a repository for information related directly to the very issues that this court was examining as a result of the defendant’s motion—remained secret, despite numerous specific discovery orders issued by this court, until long after the initial evidentiary hearing in this case was concluded and rulings were made.”

………
 What’s wrong with using jailhouse informants? It depends on how they are used. Testimony from snitches is certainly legal—even if the informant gets rewarded with a reduced sentence or material benefits or even cold, hard cash. But evidently the Orange County informants were deliberately moved to be closer to high value targets, they taped their conversations, and the records of much of this conduct were then hidden. As Dean Erwin Chemerinsky explains, the Constitution limits the use of jailhouse informants to situations in which statements are made voluntarily to cellmates, not orchestrated and recorded by jailhouse officials, all of which makes the interaction too much like an interrogation. The 1964 Supreme Court case Massiah v. United States bars the government from eliciting incriminating statements from a defendant after the right to counsel has kicked in. In Dekraai’s case the issue was how jailhouse informant Fernando Perez found his way into a cell next to Dekraai, befriended him, and then reported hearing him “bragging” about the Seal Beach murders.


The answer to that question is troubling. According to a 505-page motion filed by Sanders, Dekraai was somehow placed next to a guy known as “Inmate F,” (Perez) who then buddied up to Dekraai, heard all he had to say and then—to hear prosecutors tell it—came forward out of the goodness of his heart. As Sanders explained:

It appeared that the prosecution had been the recipient of extraordinarily good luck. The inmate housed closest to Dekraai was a good listener, a great note taker, and someone so selfless that he wanted to assist the OCDA [Orange County district attorney] and local law enforcement without wishing for anything in return. OCDA Investigator Erickson’s subsequently written report confirmed this picture of Inmate F. The prosecution promised nothing in return for his assistance, which was perfect for Inmate F. because he wanted nothing.

The problem for the Orange County District Attorney’s Office arose after Sanders started digging into details about Inmate F and happened upon, just for starters, a note in his file stating: “WAS TERMINATED AS A C.I. [confidential informant]—DO NOT USE AS A C.I.” as well as his colorful history of three-strikes convictions and conspiracies to murder fellow inmates.

Last August, Judge Goethals ruled that prosecutors couldn’t use the Perez statements during the penalty phase of the trial, but he also found that there was no evidence of a conspiracy, just that mistakes were made. But after Sanders found the TRED records, it became clear that sheriff’s officials—not a nurse, as they had sworn, under oath—had put Perez next to Dekraai’s cell, and that the violations were likely deliberate and coordinated.
………

The problem with the system set up in Orange County, according to Sanders, was that jailhouse informants were asked to collect incriminating statements and then share them with prosecutors in exchange for reduced charges or other favors. Last November, the Orange County Register reported that two prolific informants with extensive criminal records had received more than $150,000 from law enforcement agencies for obtaining information from jailed suspects awaiting trials.

………

The Dekraai case became a turning point in Orange County when Judge Goethals got mad. He found that two deputies, Ben Garcia and Seth Tunstall, who belonged to the “special handling” unit dealing with informants, testified falsely to the court, denying the very existence of the TRED records at a crucial hearing last year. He also found that a prosecutor, Eric Petersen, had testified falsely.

………
 In the end it took a crusading public defender and a judge finally willing to believe him to smoke out the wrongdoing. In tossing the entire DA’s office off the Dekraai case, Judge Goethals wrote that “certain aspects of the district attorney’s performance in this case might be described as a comedy of errors but for the fact that it has been so sadly deficient. … There is nothing funny about that.” The disqualification of an entire prosecutor’s office rarely, if ever, occurs. But Judge Goethals finally concluded that in hiding exculpatory evidence, and then covering up the whole mess, the “District Attorney has a conflict of interest in this case, which has actually deprived this defendant of due process in the past.”

 ………

The constitutional protections built into our criminal justice system are not perfect. But the events of the past year in Orange County reveal that the alternative—a nihilistic sense that we can do whatever we must to nail the criminals—is far more dangerous. Especially if we let the most dangerous criminals walk in exchange for snitching in trivial cases. Yet more dangerous still is our tendency to turn a blind eye on the practices that are now coming to light in Orange County. They happen in secret because not enough people want to know about them. And they will continue to happen because so many people keep trying so hard not to care.

The law here is pretty clear:  Once a defendant has lawyered up, neither the police nor the prosecutors may talk to him without his counsel.

This applies to any person acting as an agent of the police or prosecutors, and it is clear that the police, prisons, and prosecutors deliberately used their jailhouse snitches as agents, and then concealed this though obstruction of justice and perjury.

I fear that these practices are far more common that we are led to believe.

Democrats Need to Learn to F%$# the Mouse

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The Democratic Party has found a generally friendly reception in Hollywood, and as a result, they have been at least as supportive of draconian and stupid legislation and regulation to increase the profits of Hollywood.

The Obama administration has now taken this to its absurd extreme, and has has filed an amicus brief with the Supreme Court supporting Oracle’s claim that APIs should be copyrightable:

The Justice Department is weighing in on the hot-button intellectual property dispute between Google and Oracle, telling the Supreme Court that APIs are protected by copyright.

 The Obama administration’s position means it is siding with Oracle and a federal appeals court that said application programming interfaces are subject to copyright protections. The high court in January asked for the government’s views on the closely watched case.

 The dispute centers on Google copying names, declarations, and header lines of the Java APIs in Android. Oracle filed suit, and in 2012, a San Francisco federal judge sided with Google. The judge ruled that the code in question could not be copyrighted. Oracle prevailed on appeal, however. A federal appeals court ruled that the “declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection.”

 Google maintained that the code at issue is not entitled to copyright protection because it constitutes a “method of operation” or “system” that allows programs to communicate with one another.

 “That argument is incorrect,” the administration told the justices.

 In an amicus brief, computer scientists urged (PDF) the Supreme Court to reverse last year’s appeals court decision. “The Federal Circuit’s decision poses a significant threat to the technology sector and to the public,” they wrote. “If it is allowed to stand, Oracle and others will have an unprecedented and dangerous power over the future of innovation. API creators would have veto rights over any developer who wants to create a compatible program—regardless of whether she copies any literal code from the original API implementation. That, in turn, would upset the settled business practices that have enabled the American computer industry to flourish, and choke off many of the system’s benefits to consumers.”

Does the court really want operating system vendors to pick and choose who can write software, and what sort of software can be written, on their systems.

This is nuts. The purpose of copyright is to, “To promote the Progress of Science and useful Arts,”* and there is no way that expanding copyright in this manner does anything to promote progress.

This is insane, and this sort of  IP extremism is at the heart of much that is wrong with things like the DMCA, the TPP, Evergreening, and the continual extension of copyright because Disney does not want Steamboat Willie to enter the public domain.

This is nuts.

*http://en.wikipedia.org/wiki/Copyright_Clause