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Four Ways Officer Darren Wilson And The Ferguson Police Could Still Be Held Accountable In Court

Wednesday, November 26th, 2014

 

by Ian Millhiser Posted on November 25, 2014 at 11:51 am Updated: November 25, 2014 at 3:43 pm

Four Ways Officer Darren Wilson And The Ferguson Police Could Still Be Held Accountable In Court

Monday night, St. Louis County Prosecutor Robert McCulloch announced that a grand jury decided not to indict Officer Darren Wilson, the cop who shot and killed 18 year-old Michael Brown in Ferguson, Missouri. McCulloch, whose involvement in this case was opposed by civil rights groups including the NAACP, is the son of a police officer who was killed in the line of duty. Moreover, as Nicole Flatow explained for ThinkProgress, as an elected prosecutor he faced powerful institutional pressure encouraging him not to aggressively pursue charges against Officer Wilson.

Fears that McCulloch would be a less-than-zealous advocate for an indictment of Wilson appear to be vindicated by the analysis of two legal experts — a criminal law professor and a former prosecutor, who argue that McCulloch followed highly unusual practices in presenting the Wilson case to the grand jury. Among other things, according to attorney Jerryl T. Christmas, prosecutors do not typically present “all the evidence” to a grand jury. Rather, they present enough evidence to clear the low bar of demonstrating “probable cause” to believe that the suspect committed a crime. Indeed, according to St. Louis University law professor Susan McGraugh, the process McCulloch used in this case is a “process he’s never used before.” The vehicle for presenting the full case both for and against a suspect is typically their criminal trial, where they will be represented by defense counsel.

It is impossible to know with certainty whether the grand jury would have indicted Wilson if McCulloch had behaved differently — although a common joke among lawyers is that a prosecutor could convince a grand jury to “indict a ham sandwich” if they wanted to. Now that this grand jury has decided not to indict Officer Wilson, however, there are still legal avenues available that could lead to Wilson — and the rest of the police department in Ferguson — having to justify their actions in court:

1) Another Grand Jury

Though the Constitution provides that no one shall “be subject for the same offense to be twice put in jeopardy of life or limb,” the Supreme Court has held that this right typically does not apply until “a jury is empaneled and sworn” at a criminal trial. Because Wilson was not indicted, a criminal trial against him never began in the first place, and thus there is nothing preventing another prosecutor — or, for that matter, McCulloch himself — from seeking another indictment against Wilson.

As a practical matter, however, this outcome is unlikely. McCulloch does not appear eager, to say the least, to convene another grand jury targeting Wilson. Moreover, the St. Louis prosecutor ran unopposed for reelection in the cycle that just concluded earlier this month, earning him another four year term in office. The St. Louis County Charter does permit elected officials to be recalled, but this is a difficult process that is rarely invoked and even more rarely invoked successfully.

Thus, if Wilson is to be indicted, the charges will probably need to come from another jurisdiction entirely.

2) Federal Charges

Last August, Attorney General Eric Holder announced that the Justice Department would look into potential “violations of federal, criminal civil rights statutes” in Ferguson. One statute federal prosecutors could invoke to bring charges against Wilson targets individuals who “under color of any law . . . subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” Though a death sentence is exceedingly unlikely, even if Wilson is charged and convicted, the maximum penalty for violators of this statute whose actions result in a loss of life is the death penalty.

Obtaining a conviction under this federal law, however, will not be easy. To prove a violation of this law, federal prosecutors must show that Wilson acted “in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.” In extreme cases, the justices have held that this statute can be used to convict cops, and people who engage in criminal conspiracies with cops, who commit homicide, although these precedents involve facts that are truly grotesque. In one case, a Georgia sheriff and two law enforcement officers fatally beat an African American man for as much as thirty minutes after he tried to flee their custody. The man was charged with the theft of a single tire. In another case, the Court held that this civil rights law can target a group of individuals accused of killing the civil rights workers Michael Henry Schwerner, James Earl Chaney and Andrew Goodman. The criminal investigation into these murders later formed the basis of the film Mississippi Burning.

Outside of these egregious cases, some courts of appeals have held that this federal law can be applied to less extreme cases involving police shootings. The United States Court of Appeals for the Seventh Circuit, for example, upheld the conviction of a police officer who fired upon a station wagon after the driver failed to pull over because the officer caught him rolling through a stop sign. As Judge William Joseph Bauer wrote in that case, “[t]he facts of this case read like something out of a ‘Dirty Harry’ movie.”

The question of whether Wilson could be convicted under this law hinge upon the uncertain facts of his encounter with Michael Brown. Moreover, as the cases discussed above suggest, federal prosecutors will need to do more than simply prove that Wilson acted wrongly when he fired upon Brown. They will need to prove, at the very least, that Wilson showed “reckless disregard” for Wilson’s rights. This is a difficult legal burden to overcome, and, indeed, the Justice Department appears to be downplaying the likelihood that they will seek charges in this case. In a discussion with Ferguson residents last September, a Justice Department attorney cautioned them that “[w]e cannot promise a federal indictment, but we can promise a federal investigation.”

3) A Civil Suit

Even if there are no criminal charges against Wilson, the Brown family could still bring a civil suit against the officer who shot their son. Recall, for example, that O.J. Simpson was held liable for the wrongful death of two people he was accused of murdering, even though his murder trial ended in an acquittal.

To win a wrongful death suit in the state of Missouri, the Brown family would carry a much lighter legal burden than federal prosecutors would face if they charge Wilson. Missouri law permits wrongful death plaintiffs to prevail if they can prove that “a defendant’s negligence was a direct cause of the victim’s death.” This is a much lower bar to clear than the “reckless disregard” standard that is likely to apply in a federal prosecution. Additionally, while criminal prosecutors must prove their case beyond a reasonable doubt, civil plaintiffs generally must only show that a “preponderance of evidence” supports their claim. Perhaps most importantly, the Brown family can bring a suit on their own — or, most likely, with the help of an attorney — without having to go through an official gatekeeper such as a state or federal prosecutor.

4) Targeting The Police Department

Finally, it is possible that the Justice Department could bring a suit against the Ferguson Police Department itself. Another federal civil rights law prohibits law enforcement from engaging “in a pattern or practice of conduct . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” To the extent that Wilson’s actions — or the subsequent actions of police armed with riot gear, tear gas and “non-lethal” ammunition — constitute such a “pattern or practice,” police in Ferguson could find themselves on the losing end of a federal lawsuit.

 

Columnist William Greider – Should We Impeach Chief Justice John Roberts?

Wednesday, November 26th, 2014

Wednesday, 26 November 2014 10:59By William GreiderThe Nation | Op-Ed

Republicans like to talk about impeaching President Obama, but there is a far more deserving candidate for impeachment—Chief Justice John Roberts of the Supreme Court. While the Republicans in Congress have blocked Democrats from enacting much of substance, the GOP majority in control of the Court has been effectively legislating on its own, following an agenda neatly aligned with their conservative party. Step by step, the five right-wing justices are transforming the terms of the American political system—including the Constitution.

They empowered “dark money” in politics and produced the $4 billion by-election of 2014. They assigned spiritual values to soulless corporations who thus gained First Amendment protection of free speech and religion. The justices effectively gutted the Voting Rights Act of 1965, even as they allowed state governments to create new obstacles for minority voting. The High Court made it okay to take guns to church and more difficult to keep guns from dangerous people. It rendered a series of decisions that collectively shifted political power from the many to the few.

This power grab by the unelected—and supposedly non-partisan—justices has already produced a historic rewrite of America democracy. But it was done by blatantly usurping the decision-making authority that belongs to the elected government in Congress and the executive branch. The Republican justices are not finished with their undeclared revolution. They will continue unless and until people rise up and stop them.

The Roberts Court’s latest target is once again President Obama’s singular achievement, the Affordable Care Act. Under peculiar circumstances just three days after the midterm elections, the Court announced it will hear another legal challenge that threatens to disable and perhaps destroy the new healthcare system.

The timing of this new intervention has a distinct odor of political collusion. The Republican takeover of the Senate is already invoked by Court allies to suggest the justices are merely responding to the will of the people. Some conservative Court watchers tout the new case as a chance for the chief justice to make amends and get with the program. The latest challenge was fashioned in Washington by the same club of right-wing legal foundations and pricey corporate lawyers who have been attacking affirmative action and other liberal reforms since the Reagan administration.

Michael Carvin of the Jones Day law firm is a cocky veteran of the right’s long crusade and the lead lawyer for the new case. He is already boasting of the outcome, even though the intermediate DC Circuit Court of Appeals has not yet ruled up or down as would normally occur before the Supreme Court agreed to consider it. Carvin dismissed the DC Circuit Court, now dominated by Democratic appointees, as a meaningless anomaly. He told a Talking Points Memo reporter he doubts that Supreme Court conservatives “are going to give much of a damn about what a bunch of Obama appointees on the DC Circuit think.” Goodbye to deference and regular order.

But might Carvin’s case still lose at the Supreme Court? “Oh, I don’t think so,” he said. That was his cute way of saying this time Chief Justice Roberts will be on board with the other four conservative justices. Carvin didn’t say why he is so confident, but he and Roberts seem to be old chums. At a Federalist Society event last year, Michael Carvin indulged in a bit of classy namedropping. The admiring conservative society reported that Carvin “told an anecdote in which Chief Justice Roberts approached him and jokingly chided him for having favored appointing Samuel Alito before Roberts.” What does this say about their relationship? Maybe nothing, but one would like to ask a few follow-up questions.

Roberts himself takes offense at accusations that the Roberts Court renders politicized decisions. He has frequently denied the charge. “We’re not Republicans or Democrats,” Roberts told students at the University of Nebraska law school. Unlike some of his right-wing colleagues, Roberts wants to have it both ways. He’s not an ideologue, just an earnest umpire calling balls and strikes.

Baloney. If Carvin and other conservative legal eagles are correct that this time the Chief Justice will rule against the healthcare law, that should give people a prima facie case for considering impeachment. At a minimum, people should demand a thorough public investigation into whether surreptitious political interference occurred (who said what to whom offstage?). If politicians are reluctant to go down that road, people can start their own inquiries. The chief justice should be forewarned what will likely happen if he does scuttle the ACA. I expect “Impeach John Roberts” signs and billboards to start popping up all over America as people finally figure out who did this to them. Hint: it was not Barack Obama.

A prime witness should be Linda Greenhouse, who for decades was the influential New York Times correspondent covering the Supreme Court (now at Yale law school). Greenhouse was admired for her fair-minded analysis and great clarity in explaining esoteric legal arguments, She finds the current state of affairs “profoundly depressing.”

Greenhouse explained in her blog posted at NYTimes.com: “In decades of court-watching, I have struggled—sometimes it seems against all odds—to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week I found myself struggling against the impulse to say two words: I surrender.” (Linda Greenhouse has not herself called for impeachment.)

The new case against Obamacare reads like “a politically manufactured argument,” Greenhouse wrote. She called the maneuvering “a naked power grab by conservative justices who two years ago just missed killing the ACA in its cradle.” As evidence, she cited the unusual twists in Supreme Court behavior. Normally it waits to see if there are conflicting views among circuit courts of appeal before taking a case for consideration. This time, the Fourth Circuit based in Richmond, Virginia, upheld the law. The DC Circuit in Washington has all twelve judges reviewing and seems very likely to uphold the law, since that court is now top-heavy with Democratic appointees. The Supremes went ahead regardless.

Greenhouse cited Michael Carvin’s confident boasting as suggesting the political flavor. She also invoked remarks by Professor John Yoo of UC Berkeley—famous in Bush years as the “torture lawyer” who defended brutal interrogations and a former clerk for Justice Clarence Thomas. On National Review Online, Yoo felt sure Roberts will now support the ACA challenge because the case “gives him the chance to atone for his error upholding Obamacare.” Yoo wrote: “What judge can resist the chance to reach the right legal result, fix mistakes from the past and act with popular support? It’s a Supreme Court trifecta.”

Over-confident Republicans naturally assume the public will be grateful if the Supreme Court rescues them from Obama’s healthcare system. But the first result is bound to be utter chaos and confusion and millions of people—mostly in red states—who discover they are the losers. If the GOP legal challenge succeeds, the High Court will rule that the federal exchanges—created for states that declined to create their own state exchanges—operate illegally because the ACA does not give them explicit authority to dispense the tax credits that subsidize health insurance.

A blizzard of low- and moderate-income buyers of insurance would be suddenly stripped of government assistance—around 5.2 million of them. But there is a cruel twist Republican leaders fail to acknowledge: their own red-state constituents will be the most victimized. Leading right-wing politicians have endorsed the very lawsuit that will punish the Southern and Western states if it prevails, while blue states and northern cities that are operating their own state exchanges may not suffer at all.

The lawsuit now before the Supreme Court, for example, has been formally joined by Senators Cornyn and Cruz of Texas, Hatch and Lee of Utah, Portman of Ohio, Rubio of Florida, Representative Darrell Issa of California and the state governments of Oklahoma, Alabama, Georgia, West Virginia, Nebraska, South Carolina and Kansas. If these politicians win, their states are the big losers.

But of course the citizens who will be screwed in the red states are mostly working poor or moderate-income families. Republicans are okay with that. They ostensibly believe that belt-tightening helps build character. The GOP may have a time with blowback from the insurance industry and other providers in the healthcare system. While it’s not widely understood, many billions in federal subsidies help people of limited means buy health insurance but they never actually see the dollars themselves. The money flows directly from the Treasury to the private enterprises. Insurance lobbyists are already on the case, explaining real life to clueless conservatives.

Up to this point, I have barely mentioned the logic of the conservative assault on Affordable Care. Because there isn’t much logic to it. It depends entirely on a narrow-minded reading of the original legislation—so ridiculously literal that only gnomes in a medieval castle could take it seriously. In a nutshell, the right-wing lawyers claim that the law describes how state-run exchanges will be able to dispense federal subsidies to people in need, but the law fails to say explicitly that federal exchanges have the same powers.

Okay, the drafters could have repeated the requisite language to reassure fly-specking lawyers, but really there was never any doubt about the congressional intent. As the US Court of Appeals for the Fourth Circuit has ruled, the logic of the entire system over-rules any blurred language. The law says explicitly that the secretary of Health and Human Services has the authority to create federal exchanges when and where states don’t want to do it. In other times, any such ambiguity would have been quickly eliminated with a technical fix, routinely adopted by mutual consent.

But the new Republican Party refuses to go along with anything that resembles cooperation and might shine a good light on Democrats. What the right-wingers really hope to achieve is a total breakdown of the ACA’s complex architecture. Throw sticks in the spokes. Force the Obama administration to open the legislation for Republican tinkering. The Supreme Court appears to be pursuing a similar strategy In other words, right-wing senators want Supreme Court right-wingers to accomplish by edict what GOP legislators could not accomplish for themselves.

Barack Obama can win this fight by not giving in to the Supreme Court, even if he temporarily loses there. The president has to call out his opponents and tell the hard truth about their illegitimate abuse of power. People may listen if he genuinely fights for them.

People may recall the last time Americans wanted to impeach a Chief Justice was in the 1950s, when Earl Warren—a liberal Republican from California—championed Brown v. Board of Education in the long legal battle to defeat Jim Crow segregation. Chief Justice Roberts has been leading in the Court in the opposite direction. Instead of comforting the afflicted, he is comforting the comfortable.

This story originally appeared in The Nation.
Copyright © 2014 The Nation – distributed by Agence Global.

The Feds Should Charge Darren Wilson…But they can’t, because the Supreme Court gutted the civil rights law he violated.

Wednesday, November 26th, 2014

 

By Mark Joseph Stern

Attorney General Eric Holder holds a news conference discussing the Justice Department’s investigation of the shooting of Michael Brown in Washington, D.C., on Sept. 4, 2014.

Photo by Gary Cameron/Reuters

Following the news that a St. Louis County grand jury failed to indict Darren Wilson for the shooting of Michael Brown, attention turned to the possibility of a federal charge against Wilson. Attorney General Eric Holder quickly announced that that Justice Department’s investigation into the shooting remains “ongoing,” “thorough,” and “independent.” His comments seemed calibrated to keep alive the hope that the federal government may yet charge Wilson for criminally violating Brown’s civil rights.

Mark Joseph Stern is a writer forSlate. He covers science, the law, and LGBTQ issues.

Don’t believe it. In the end, the feds will almost surely decide not to charge Wilson—and even if they did charge him, he’d probably still walk free. In all likelihood, the St. Louis grand jury’s decision marks the end of Wilson’s criminal prosecution. Federal law surrounding racially motivated police shootings is unaccountably convoluted and hopelessly muddled. But one thing is clear: In their current form, our federal civil rights laws let cops pull the trigger with near-total impunity.

It wasn’t always that way. The law under which Holder could theoretically charge Wilson, now called Section 242, was passed in 1870 to secure robust legal protections for newly freed blacks in the South. Congress had recently passed amendments guaranteeing former slaves citizenship, equal protection of the laws, due process, and voting rights, which the states (including several under Reconstruction in the South) then ratified. But a number of viciously racist groups, including the newly formed Ku Klux Klan, had effectively negated these new rights, terrorizing black communities through arson, beatings, and lynching.

Congress had already passed laws requiring Southern states to recognize their black citizens’ newfound freedoms. But violent groups like the KKK were often aided if not led by local governments and law enforcement. Blacks suddenly had a vastly expanded roster of rights, yet racist officials and crooked cops were colluding to ensure that they couldn’t exercise any of them. So Congress passed the Enforcement Act of 1870, part of which survives today as Section 242. As its title suggests, the act enforced the new amendments by making it a federal crime to deprive any person of his constitutional rights while acting “under color of any law.”

In their current form, our federal civil rights laws let cops pull the trigger with near-total impunity.

In addition to voting rights and equal protection, the law’s supporters had a particular right in mind: the Constitution’scommand that no person may be “deprived of life, liberty or property without due process of law.” When a police officer kills or beats a citizen unjustifiably, he’s depriving him of “life” or “liberty” without due process—a clear violation of Section 242.

For decades, this plain reading of this law was understood, and Congress periodically amended the law to keep it clear and up-to-date. But in 1945, the Supreme Court muddied the waters. The court reviewed the conviction of Claude Screws, a sheriff in Baker County, Georgia. Screws had arrested a black man, Robert Hall, for the alleged crime of stealing a tire, then driven him to the courthouse, accompanied by two other officers. When Hall exited the car, Screws and the officers beat him with their fists and a club for about half an hour. They then dragged his unconscious body into a jail cell and called an ambulance. He died in the hospital soon after.

Screws was convicted under the law known today as Section 242. He promptly appealed, challenging the constitutionality of his conviction. (While his case was being reviewed, Screws ran for re-election and won by a 3-to-1 margin.) He argued, somewhat ironically, that he, not his victim, had been deprived of due process. The law he had been charged with, Screws claimed, was unconstitutionally vague; in other words, it was so nebulously worded that he couldn’t have known he was violating it.

The Supreme Court agreed and overturned Screws’ conviction. On its own, the justices held, the statute was too hazy to serve the demands of due process because it contained no “ascertainable standard of guilt.” So, failing to find a standard, the court made one up. In 1909, Congress had added the requirement that one must “willfully” deprive another of rights in order to violate Section 242. With the addition of the “willful” standard, the court decided, the statute now required a specific intent to violate someone’s constitutional rights. Thus, while the prosecutor may have proven that Screws deprived Hall of his constitutional rights, he hadn’t proven that Screwsintended to deprive Hall of these rights. Screws was given a new trial under the new standard. The jury let him go.

By essentially rewriting the statute, the Supreme Court was responding to legitimate constitutional concerns. But the extraordinarily high “intent” requirement quickly hamstrung prosecutors, who could rarely prove to a jury that even a Klansman had lynched his victim for the purpose of depriving his victim of rights. Section 242 became a rarely used tool, employed only in extreme cases—like the infamous Mississippi murder of three civil rights workers, which, the Supreme Court agreed, was committed with the intent of preventing them from securing voting rights for blacks.

In fact, the Screws revision of Section 242 is so extreme that a number of judges havetried to wriggle out of it. The Screws opinion suggests several times, bizarrely, that acting in “reckless disregard” of constitutional rights could qualify as “intent” and satisfy Section 242. Recklessness isn’t the same thing as intent, and this wording was probably just a fumble—but some courts have grabbed the ball and run with it. In one such ruling, the 3rd Circuit found that when a police officer chooses to disregard a citizen’s constitutional rights, he’s met the “intent” standard and violated Section 242.

But these courts are in a minority, and most judges still read Screws to mean that you can’t win a Section 242 case without demonstrating actual intent. Can the Justice Department prove to a grand jury (let alone a trial jury) that Darren Wilson shot Michael Brown for the purpose of violating his rights? The answer is almost certainly no—which is why the government won’t bring any charges.

This outcome is, no doubt, unjust. It is also an entirely predictable result of Screws, a result anticipated by the one justice who would have affirmed Sheriff Screws’ conviction. Writing in dissent, Justice Frank Murphy insisted that Screws’ victim had a right to “life itself”:

That right was his because he was an American citizen, because he was a human being. As such, he was entitled to all the respect and fair treatment that befits the dignity of man, a dignity that is recognized and guaranteed by the Constitution. Yet not even the semblance of due process has been accorded him. … Too often unpopular minorities, such as Negroes, are unable to find effective refuge from the cruelties of bigoted and ruthless authority. … [W]here, as here, the states are unwilling for some reason to prosecute such crimes the federal government must step in unless constitutional guarantees are to become atrophied.

Brown had the right to “life itself,” too. Wilson took it away—and there’s almost nothing the federal government can do about it. The KKK began its reign of terror in 1865. The brutal Selma assault on civil rights protesters occurred in 1965. And in 2014, we still don’t have a federal law to protect unarmed black boys from getting gunned down by cops in the street.

 

Why It’s Impossible to Indict a Cop

Tuesday, November 25th, 2014

 

It’s not just Ferguson—here’s how the system protects police.

Chase Madar 

November 24, 2014  

How to police the police is a question as old as civilization, now given special urgency by a St. Louis County grand jury’s return of a “no bill” of indictment for Ferguson, Missouri, police officer Darren Wilson in his fatal shooting of an unarmed teenager, Michael Brown. The result is shocking to many, depressingly predictable to more than a few.

Can the cops be controlled? It’s never been easy: according to one old sociological chestnut, the monopoly on the legitimate use of violence is what defines modern government, and this monopoly is jealously protected against the second-guessing of puny civilians. All over the country, the issue of restraining police power is framed around the retribution against individual cops, from Staten Island to Milwaukee to Los Angeles. But is this the best way to impose discipline on law enforcement and roll back what even Republican appellate court appointees arecalling rampant criminalization?

Police shootings in America

First, the big picture. Last year, the FBI tallied 461 “justifiable homicides” committed by law enforcement—justifiable because the Bureau assumes so, and the nation’s courts have not found otherwise. This is the highest number in two decades, even as the nation’s overall homicide rate continues to drop. Homicides committed by on-duty law enforcement make up 3 percent of the 14,196 homicides committed in the United States in 2013. USA Today analysisof the FBI database found an average of about ninety-six police homicides a year in which a white officer kills a black person.

The FBI’s police homicide stats are fuzzy, and they are surely an undercount, given that they come from voluntary reports to the FBI from police departments all over the country. That the federal government does not keep a strict national tally shows just how seriously it takes this problem. A crowdsourced database has sprung up to fill the gap, as has a wiki-tabulation.

Perhaps the most disturbing thing about these police killings, many of them of unarmed victims, is that our courts find them perfectly legal.

SCOTUS and the license to kill

Chapter 563 of the Missouri Revised Statutes grants a lot of discretion to officers of the law to wield deadly force, to the horror of many observers swooping in to the Ferguson story. The statute authorizes deadly force “in effecting an arrest or in preventing an escape from custody” if the officer “reasonably believes” it is necessary in order to “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”

But this law is not an outlier, and is fully in sync with Supreme Court jurisprudence. The legal standard authorizing deadly force is something called “objective reasonableness.”

This standard originates in the 1985 case of Tennessee v. Garner, which appeared at first to tighten restrictions on the police use of deadly force. The case involved a Memphis cop, Elton Hymon, who shot dead one Edward Garner: 15 years old, black and unarmed. Garner had just burgled a house, grabbing a ring and ten bucks. The US Supreme Court ruled that a police officer, henceforth, could use deadly force only if he “has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” The ruling required that the use of force be “objectively reasonable.” How this reasonableness should be determined was established in a 1989 case, Graham v. Connor: severity of the crime, whether the suspect is resisting or trying to escape and above all, whether the suspect posed an immediate threat to the safety of officers or others. All this appeared to restrict police violence—even if, in the end, Officer Hymon was never criminally charged for fatally shooting Edward Garner.

“Objectively reasonable”—what could be wrong with that? But in actual courtroom practice, “objective reasonableness” has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers. American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time.

The Graham analysis essentially prohibits any second-guessing of the officer’s decision to use deadly force: no hindsight is permitted, and wide latitude is granted to the officer’s account of the situation, even if scientific evidence proves it to be mistaken. Such was the case of Berkeley, Missouri, police officers Robert Piekutowski and Keith Kierzkowski, who in 2000 fatally shot Earl Murray and Ronald Beasley out of fear that the victims’ car was rolling towards them. Forensic investigations established that the car had not in fact lurched towards the officers at the time of the shooting—but this was still not enough for the St. Louis County grand jury to indict the two cops of anything.

Not surprisingly then, legal experts find that “there is built-in leeway for police, and the very breadth of this leeway is why criminal charges against police are so rare,” says Walter Katz, a police oversight lawyer who served on the Los Angeles County Office of Independent Review until it disbanded in July of this year. According to Erwin Chemerinsky, dean of the UC Irvine Law School, recent Supreme Court decisions are not a path towards justice but rather a series of obstacles to holding police accountable for civil rights violations.

An officer’s personal threat assessment is often bolstered by the fact that there are between 270 million and 310 million guns in the United States. Take a grand jury’s failure to indict the police officers who fatally shot John Crawford III, the black man holding a BB gun in a Walmart in Beavercreek, Ohio. In a country where shooting sprees are a regular occurrence, where guns are widely available at Walmart and where fake guns that look very similar to real guns are sold in the same store, the police officers’ fears were deemed reasonable enough for the grand jury to find no probable cause of criminal wrongdoing. That is how the Supreme Court police violence jurisprudence works, and it was firmly on the side of officer Sean Williams, just as it has now been found to be on Darren Wilson’s. Given the deference and latitude hardwired into the law, “there is just an underlying assumption that the officer did not engage in criminal activity,” says Katz.

The first step to controlling the police is to get rid of the fantasy, once and for all, that the law is on our side. The law is firmly on the side of police who open fire on unarmed civilians.

The sick joke of self-regulation

The lethal use of police force typically sets off an internal police investigation to determine if departmental regulations were violated. The regs and the law are not the same thing. Case in point: the chokehold that NYPD officer Daniel Pantaleo used to strangle Eric Garner, suspected of selling loose cigarettes, on Staten Island last July. (The grand jury bill on that case has still not been decided.) The chokehold is not prohibited by law, but it is by departmental rules. The violation might earn a departmental censure of some kind, from loss of vacation days to getting fired, but they tend to be radically mild, when not nonexistent.

What about internal affairs investigations? On television they are aggressive, dogged, uncompromising. In real life they tend to insulate the police from serious external sanction. “I stopped cooperating with the IAB ten years ago,” says Jason Leventhal, a former assistant district attorney in Richmond County, Staten Island who now works as a civil rights litigator, often suing the police. “IA will never, ever credit the claim of police abuse. They hide witnesses, they push witnesses around. The only time I cooperate with them is when I know I have their hands tied behind their back.”

Are there any effective civilian oversight systems at any major police department in the US? Nobody I interviewed for this article could name one. New York’s Civilian Complaint Review Board occasionally docks vacation days from police officers but the board has no real teeth. Even staffers at the New York Civil Liberties Union have candidly told me that it’s more or less worthless. “I don’t have any faith in the CCRB or the Internal Affairs Bureau or any other internal mechanism,” says Ron Kuby, a civil rights and criminal defense lawyer in New York. Civilian complaints rarely even get in the way of an individual officer’s career. In New York, CCRB complaints don’t even go in a police officer’s file, says Kuby. “The PBA just says that the more aggressive officers will get excessive force complaints.”

Firing a police officer with a record of abusive behavior (or worse) is often extremely difficult and can carry a heavy political cost. Patrolmen Benevolent Associations, which have escaped the kind of resentment directed at other public-sector unions, tend to be powerful players in local politics able to inflict pain on any politico who would cross them. (Remember when Sarah Palin struggled to fire a state trooper and ex-brother-in-law who had allegedly acted like a thug towards her sister?)

The reality is, it is extremely difficult to get law enforcement to police itself, and self-regulation is here, just as it is in poultry processing or coal mining, a sick joke.

Civil suits

Civil suits for monetary damages require a lower standard of proof than criminal cases, but these suits are not a slam-dunk for victims of cop violence, either. The same jurisprudence that grants wide leeway to law enforcement still holds. Last March, one victim’s family lost a federal civil suit for wrongful death and civil rights violations brought against police officer Nicholas Bennallack for fatally shooting a fleeing and unarmed drug suspect. The jury believed the cop’s claim that he opened fire out of fear for his life.

What about all the times when excessive force suits get settled out of court? It turns out that massive payouts don’t deter police misconduct for one straightforward reason: neither individual officers nor police departments are responsible for coughing up the cash. The union covers the officer’s lawyer, and research from Joanna Schwartz of UCLA Law School found that governments, not individual officers, paid out 99.98 percent of the damages. Settlements and damages aren’t paid by the police department, whose budget will waltz by untouched, but typically out of the general municipal budget.

Kuby maintains that civil remedies will always fall short and thinks only criminal prosecution has a prayer of changing police behavior. “Prosecution works well with people who are not fundamentally criminal and have enough stake in the system to respond! Any response below that is an insult.” But he admits that the political will to make the criminal justice system restrain and regulate its own members and enforcers is consistently lacking—and has been as long as he’s been practicing law.

Don’t make a federal case out of it.

Occasionally the federal Department of Justice intervenes to prosecute individual cops for depriving a victim of his or her civil rights. If a state-level prosecution fails to secure a conviction, this can give the government a second chance to prosecute on different charges. Rodney King’s LAPD assailants were convicted in 1993 in just this way.

But the feds, like other prosecutors, only like to take on cases they can win, says Alan Vinegrad, who was part of the federal attorneys that prosecuted the NYPD officer who in 1997 sexually tortured Abner Louima with a broken-off broom handle. “In the Louima case it was painfully obvious that the use of force was extreme and willful,” says Vinegrad. “But in other cases, if the officer is acting more in the line of duty, a federal civil rights violation is a tougher thing to show.”

Will the Obama DOJ take on the Michael Brown case? It doesn’t look like it. Eyewitness testimony is conflicting, and so far the multiple forensic reports that have come out are not inconsistent with Darren Wilson’s version of the shooting—which would make the federal standard of willful misconduct difficult to prove. The Obama DOJ has signaled with leaks that it isbacking away from a federal case against the officer.

Far more useful are the DOJ Civil Rights Division’s root-and-branch interventions into violently dysfunctional police forces, triggered by “patterns and practices” of systematic rights violations rather than any one particular incident. For instance, the DOJ just launched a major effort to reorganize and reshape the police department of Albuquerque, reforming its trainings, protocols and appallingly trigger-happy habits. (The Albuquerque police have shot thirty-seven people in the past four years, twenty-three of them fatally.) This is a well-established tool of the federal government: other police departments under federal supervision include those of Seattle, New Orleans, Puerto Rico and, until recently, Los Angeles and Detroit; the feds also nearly took over wholesale the Oakland police department in 2012. But note that these federal interventions do not entail punishments, civil or criminal, of individual police officers.

In the unusual instances when a law enforcement officer is convicted, the penalties tend to be remarkably light. Johannes Mehserle, the Bay Area Rapid Transit officer who shot the unarmed Oscar Grant III dead on New Year’s Day, 2009, served eleven months of a two-year sentence for involuntary manslaughter. Then there is Jon Burge, the Chicago police detective who led the torture of over 100 (mostly black) suspects, released last month after serving four and a half years in custody. (The statute of limitations had passed for the more serious offenses.) Burge still collects a $54,000 departmental pension.

Such Scandinavian-style lenity is quite different from the mind-numbing severity of sentences inflicted on non-cops. Consider the sixty years that potentially face Marissa Alexander for firing a warning shot at an abusive ex. Or the life sentences without possibility of parole that more than 3,000 Americans are serving for nonviolent crimes.

Video

Some observers see hope for police reform in the ubiquity of smartphone video recorders. It’s true that the ever-growing supply of police misconduct videos fuels the anger needed to sustain reform efforts, and even occasionally leads to police officers being disciplined or prosecuted. Examples include NYPD officers David Afanador and Tyrane Isaac, caught on camera pistol-whipping a teenage suspect last August, or South Carolina state trooper Sean Groubert who in September opened fire on a motorist heading into his truck to retrieve his driver’s license. Jason Leventhal told me he expects an indictment of the Staten Island police officer who strangled Eric Garner because the video evidence, caught on a cellphone, was so brutal. It would certainly be a good thing if police departments invested less in military gear like M-RAP armored vehicles and more in dashcams and GoPro cameras; with the right department protocols and practices, these cameras strengthen police accountability.

But just as often these videos end up illustrating just how much leeway police have in opening fire on a suspect. Take the police shooting of St. Louis resident Kajieme Powell, a mentally ill man allegedly holding a knife, a fatal shooting arguably less defensible than the Michael Brown shooting ten days before, and caught on a cell-phone video. Or, again, John Crawford III, whoseslaying by police officers was caught on the Walmart security cameras. Or the July, 2012 video of eight members of the Saginaw, Michigan, police department, six of them firing forty-six shots at Milton Hall, a mentally ill homeless man, hitting him eleven times, after he took out a pocket knife when a police dog started to lunge at him. Although the latter horrific video picked up a fresh wave of publicity when screened at a hearing of the Inter-American Commission on Human Rights in Washington, DC, last month, such videos cannot undo the legally enshrined deference to the subjective feelings of police officers when they reach for their weapons. No criminal charges were even attempted by state prosecutors in any of these cases; the DOJ has announced it is looking into the Crawford shooting, but declined to prosecute in the other two.

(A note on the IACHR and other international forums: bringing these cases of police shootings to them is a canny way to generate publicity and raise consciousness, but no one should ever imagine for even a second that such bodies will ever wield any actual power in American courts.)

There really is no courtroom miracle or lawsuit solution, no matter how clever the litigator, no matter how deep-dish the foundation grant, that is going to discipline the police and break them of their trigger-happy habits.

Thinking big

Police shootings are only one function of living in one of the most heavily policed societies in the world. Any movement to roll back this creeping overcriminalization is going to have to look beyond criminal prosecutions of individual police and take in the big picture.

The militarized police response to the mostly nonviolent demonstrations in Ferguson and elsewhere has appalled not only progressives but many conservatives as well. The army’s provision of of weapons surplus, from MRAPs to tanks, to local police departments under the federal 1033 Program, ought to be easy to end. But departments are reluctant to give back new toys, and majorities of both the congressional Progressive Caucus and the Black Caucus votedagainst a bill that would have stopped the disbursement of some military goodies to local police departments. Gun control advocates would do well to lobby hard and publicly for arms control measures applied to the police as well—undisciplined but up-armored cops are part of what that drives many otherwise sane private citizens to build private armories.

Wanton overpolicing had poisoned relations between the people and their government well before Darren Wilson shot dead Michael Brown. Less mediagenic than police militarization and far more insidious is law enforcement’s daily harassment of citizens for petty offenses. The local government in Ferguson has been treating its residents and neighbors less like free people with rights than like revenue milk-cows to be exploited to the max. Citations and fines for petty offenses are profligately inflicted on residents, particularly black residents. According to a blockbuster report issued by St. Louis’s ArchCity Defenders advocacy group, over 20 percent of city revenue comes from municipal courts (making them the city’s second-largest source of revenue), which issued enough warrants last year to slap three warrants, $312 worth, on every household in the town.

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Not surprisingly, high on the list of demands issues at one Ferguson community forum was an end to the “overpolicing and criminalization of poverty,” an amnesty for old unpaid warrants, new fines proportioned to income and a state law capping municipal revenue from court fees at 10 percent. (Terrified by the Ferguson unrest, the city of St. Louis decided to eliminate 220,000 open arrest warrants for traffic violations last month.) The feeling of being under occupation by an armed force that cares more about meeting revenue quotas than public security corrodes all trust in law enforcement, and is the sort of environment in which police are more likely to open fire.

The state of emergency that Missouri governor Jay Nixon declared on November 17 seems all too likely to encourage the police overkill, both petty and heavily militarized, that shocked the world over the summer, when much of the state’s use of force against demonstrators was of dubious legality.

New policing models like the problem-solving approach developed by David M. Kennedy and others have focused law enforcement and social work resources on a city’s small number of known and likely violent gang members, leaving the rest of the community in relative peace. This approach has won demonstrable results in Boston and Cincinnati without intrusive “broken windows” policing or the wholesale stop-and-frisk harassment of black and Latino youth. Kennedy, director of the Center for Crime Prevention and Control at John Jay College, writes in his memoir, Don’t Shoot, that this type of community policing doesn’t fix the entire economy, but it does reduce homicide—including police homicide—and at least create social peace.

Police demilitarization, the decriminalization of working-class people, new policing models: these are all projects that could work in Ferguson and thousands of other American cities. Although none of these large-scale ideas is explicitly race-conscious, they would most likely tighten the severe racial disparities in policing violence that exist all over the country, more so than pouring more money into racial sensitivity training for cops. (Changing residency requirements of municipal police officers to get a more ethnically representative force might help a little, though research shows that such requirements correlate with less confidence in the police, not more.)

These big-picture reforms are fundamentally political solutions that will require long-term effort, coalition politics that spans race, ethnicity and political affiliation—a challenge, but also a necessity. As police and prosecutors assume more and more power in the United States—regulating immigration (formerly a matter of administrative law), meting out school discipline, and other spheres of everyday life where criminal law was almost unknown even a generation ago—getting law enforcement on a tight leash is a national imperative. In the meantime, the constantstream of news reports of unarmed, mostly black and Latino civilians killed by police demands bigger, bolder approaches. They are the only available paths to getting the police under control.

SUPREME COURT JUSTICE WILL SCOTT OF PIKEVILLE MAY RUN FOR GOVERNOR

Tuesday, November 25th, 2014

 

Kentucky Supreme Court Justice Will T. Scott says he may seek GOP nomination for governor

BY JACK BRAMMER

jbrammer@herald-leader.comNovember 24, 2014 Updated 3 hours ago

 

Will T. Scott said people have been encouraging him to run in the 2015 race.

 

 Kentucky Supreme Court Justice Will T. Scott of Pikeville said Monday he will decide by early January whether to run for governor next year.

If he decides to enter the Republican primary election to be held next May, Scott said, he will step down immediately as a justice on the state’s highest court.

Scott, 67, acknowledged that he has had “informal discussions” with potential running mates and that whoever might be his running mate for lieutenant governor is “a major factor” in his decision. He said it would be “a ticket for promise.”

If he runs, Scott said, his campaign would be based on ideas to improve the lives of Kentuckians.

The filing deadline to run for governor in 2015 is Jan. 27.

Two Republicans already have said they will run for governor — state Agriculture Commissioner James Comer of Tompkinsville and Louisville businessman Hal Heiner.

Attorney General Jack Conway of Louisville, a Democrat, also has entered the race, as well as Democrat Geoff Young, who lost a bid in this year’s Democratic primary for 6th Congressional District seat.

Scott was elected to the Supreme Court from the 7th District in 2004. He served as deputy chief justice from 2006 to 2010.

Scott was a circuit judge from 1984 to 1988. Before that, he practiced law as a trial attorney from 1975 to 1980 and was an assistant commonwealth’s attorney for Pike County from 1981 to 1982.

He has made unsuccessful runs for Congress and state attorney general.

Scott, a native of Pike County, attended Eastern Kentucky University for a year before volunteering for the Army in 1966. He was a first lieutenant in Vietnam. After his military service, Scott received a bachelor’s degree from Pikeville College and a law degree from the University of Miami in Florida.

Jack Brammer: (502) 227-1198. Twitter: @BGPolitics. Blog: bluegrasspolitics.bloginky.comJack Brammer: (502) 227-1198. Twitter: @BGPolitics. Blog: bluegrasspolitics.bloginky.com

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Read more here: http://www.kentucky.com/2014/11/24/3557434_kentucky-supreme-court-justice.html?rh=1#storylink=cpy

Senator-Elect Proposes Appeals Deadlines, Judge Term Limits

Tuesday, November 25th, 2014

 

Angela Morris, Texas Lawyer    | 0 Comments

Jorgen Mcleman

A senator-elect who unseated a six-term incumbent has prefiled legislation that turns the heads of many legal observers.

Sen.-elect Don Huffines, R-Dallas, has proposed deadlines for appellate courts and punishments for justices who don’t meet deadlines. He also proposed that high court jurists should only serve two terms in office, and that most of the state’s judges—as well as county and district attorneys—should face limits of eight years in office.

The senator-elect filed Senate Bill 64 on Nov. 10, the first day that lawmakers could prefile bills. It would impose deadlines upon the Texas Supreme Court and intermediate appellate courts to act on petitions for review.

Texas Supreme Court Chief Justice Nathan Hecht said that his court and the intermediate appellate courts are already issuing opinions in a timely manner.

“I think it tries to prioritize speed over quality, and you know the courts’ first and most important responsibility is to get it right. We recognize that decisions need to be timely, but I think the courts are working very hard to be timely, and I don’t think you can treat all case alike. Some are simple and some are complex. Some take longer than others,” Hecht said about SB 64.

Under the bill, the Supreme Court would have to deny a petition within 90 days of filing by not requesting a response. It would deny a petition within 180 days of filing by not requesting briefing. It it requested briefing, it would have to grant or deny a petition within 300 days.

SB 64 would mandate that the Supreme Court issue decisions all of its cases during the same term of court, with some exceptions.

Every justice would have to take responsibility for meeting deadlines. If a justice did not comply, the chief justice would have to: prohibit a justice from participating in oral arguments; reassign the justice’s opinions to be written by others; prohibit him from participating in new cases; and refer him to the State Commission on Judicial Conduct. Intermediate appellate courts would also face deadlines, and their justices would face the same enforcement measures, as well as budgetary consequences.

Regarding the deadline enforcement measures in the bill, Hecht said, “It’s better for chief justices to work with their court rather than being seen as punishing judges.”

Term Limits

During Huffines’ campaign, he expressed support for term limits.

“When term limits are in place, the state legislature will be more responsible with legislation, because after serving their constituents in Austin, they will have to live under the laws they have created while in office,” said Huffines’ website.

But the legislation he filed, Senate Joint Resolution 6, would apply to more than just lawmakers. SJR 6 would affect nearly the entire Texas judiciary and county and district attorneys.

The resolution proposes a constitutional amendment that would bar Texas Supreme Court justices and Texas Court of Criminal Appeals judges from reelection if they had previously been elected to two full terms. The clock would start in 2016.

SJR 6 also applies to “every district office or office of a political subdivision of this state that is filled by popular election.” The definition does not touch intermediate appellate court justices, but it would include district judges, county court-at-law judges, justices of the peace and county and district attorneys. They would be ineligible for reelection if they had served eight years or more. The clock would start on Jan. 1, 2016.

Hecht said that when it comes to term limits, judges should be treated differently than state lawmakers.

“Judges are different because you expect a certain amount of legal knowledge, experience. The best trial judges are the ones who have been around and know how to handle cases in their dockets, so it’s different than being a representative who meets in session only for a few months every other year,” he said. “Term limits for judges just deprives the bench of the experience that is important in being a good judge. I think that frequent turnover creates uncertainty and instability that hurts the bar, the public and the law.”

Huffines, a nonlawyer and owner of Dallas-based Huffines Communities, a real estate development business, didn’t return a call or email seeking comment.

In the March Republican primary, he won 50.63 percent of the vote to unseat Sen. John Carona, according to the Texas secretary of state.

Read more: http://www.texaslawyer.com/id=1202677341842/SenatorElect-Proposes-Appeals-Deadlines-Judge-Term-Limits#ixzz3K5Yxx34a

O’Connell: New evidence rule vindication

Monday, November 24th, 2014

 

Andrew Wolfson, The Courier-Journal 7:27 p.m. EST November 21, 2014

 

Vilified for demanding that judges stop “disingenuous maneuvering” by defense lawyers in drunken-driving cases, Jefferson County Attorney Mike O’Connell said he feels vindicated now that the Kentucky Supreme Court has officially banned the moves he complained about.

 

“I am very pleased,” O’Connell said Friday. “It certainly is a great improvement for all trial courts in the commonwealth.”

 

By a 6-1 vote, the court Nov. 7 adopted a rule effective in January that will prohibit lawyers from deliberately waiting until after trials start to file motions to suppress evidence.

 

O’Connell had complained they were doing it so that if they won such motions and cases were dismissed, the prosecution couldn’t appeal because of the constitutional protection against double jeopardy — trying a defendant twice over the same crime.

O’Connell was privately admonished for sending a harshly worded letter to district judges in December 2012 demanding that they disallow such motions; a Kentucky Bar Association hearing officer said O’Connell had violated a rule that bars lawyers from contacting a judge without the other side present.

 

But the KBA’s board of governors recommended that the complaint be dismissed and the Supreme Court in September unanimously affirmed the recommendation, saying O’Connell didn’t violate the prohibition against ex parte contacts and had a First Amendment right to speak out.

 

The new Supreme Court rule on suppression motions says that unless there are good reasons for it, they must be made before trial.

 

O’Connell advocated for the rule change after district judges said they had no choice but to follow the existing rules, which seemed to allow motions during trial.

 

One of those judges, Stephanie Pearce Burke, denounced O’Connell’s letter at the time as “threatening in a political way” and said she was “astonished that the county attorney would send such a brash letter to judges telling us how to do our job.”

 

Burke said Friday that O’Connell should have just gone to the Supreme Court in the first place. “We are bound by the rules as they are, until they are changed,” she said

 

Louisville attorney J. Vincent Aprile II, who filed the bar complaint against O’Connell, said the court’s adoption of O’Connell’s position “vindicates the position he wanted but not the way he pursued it.”

 

O’Connell said he wanted to use “every avenue I thought was available” to push for change.

 

He had said he had a duty to speak out after The Courier-Journal reported that most DUIs tried before judges resulted in acquittals. O’Connell said the stories called the integrity of the District Court into question.

 

He said Friday that “now there is no question that this is the proper way” to handle such motions.

 

“The court has spoken,” he said.

 

Reporter Andrew Wolfson can be reached at (502) 582-7189

U.S. today looks too much like George III’s Britain

Monday, November 24th, 2014

 

BY THOMAS E. TEMPLIN

November 24, 2014 Updated 51 minutes ago

Americans have often looked to the era of the nation’s founding as a way of gaining insight into their own later times. To do this now, in the 21st century, requires facing up to certain truths that are both illuminating and dismaying.

One of these is the extent to which present-day America has come to resemble the Britain of King George III, the very nation our revolutionary forebears so momentously rebelled against.

Pulitzer prize-winning historian Gordon Wood has concisely described the troubled condition of Britain during the era that led up to the great rebellion in America. It was, he writes, an age in which Britain experienced “the rise of huge banks” and “the emergence of new moneyed men.”

Burdened with an “increasing public debt,” Britain had fallen into serious fiscal difficulties. Combined with these developments was a “corruption of politics,” both actual and perceived, that had overtaken its public life and power structure.

Given these circumstances, Americans in increasing numbers came to view Britain as an ominous, “dangerously diseased,” corrupted nation. Specific actions by the government in London, directed against established colonial rights and liberties, stirred growing anger and alienation across the Atlantic. But the broader, more generalized negative view of Britain also became a major factor that drew Americans toward the choice to break away from British rule.

Rarely, if ever, since then has the condition of the United States had as much in common with George III’s Britain as it does in our time. We, too, have experienced the rise of huge banks, those problematic behemoths that had to be bailed out and, despite subsequent reforms, still have the potential to pose large risks to our economy and financial system. We, too, have seen the emergence of new moneyed men, notably including those Wall Street innovators who unleashed a torrent of toxic financial products on this country, causing harm that is still very much with us. We, too, confront the burden of rising public debt, which at the federal level was less than $6 trillion when this century began and is now approaching $18 trillion.

And we are experiencing our own all-too-familiar corruption of politics: the incumbents beholden to special interests, the crony capitalism, the incessant fund raising, the legions of high-powered lobbyists swarming over Washington, the overthrow of previously established limits on the role and power of organized money in politics, and so on.

In sum, then, it is an important truth of our time that this nation has put itself increasingly at odds with some of the fundamental elements of purpose and belief that motivated our founding revolution.

This perverse reality underscores the troubled condition of 21st century America. It reflects a political culture damaged by the entrenched power of narrowly self-interested elites and stunted by extremes of partisan polarization and ideological rigidity. This state of affairs contrasts starkly with the bold, pathbreaking ideals and historic achievements of those revolutionary Americans who separated from George III’s Britain and brought this nation into existence.

Our great founders were, of course, flawed mortals. They had their shortcomings and contradictions. They also disagreed among themselves, producing some periods of bitter political strife. Yet at crucial points they displayed a vital degree of pragmatism and compromise, the foremost example being the politically arduous making of the U.S. Constitution itself.

The epic story of the nation’s founding thus provides an invaluable perspective on some of the thorniest problems and deepest failings of 21st century America. Inherently, the legacy of the founders challenges us to come more fully to grips with these hard realities, to engage with them in a spirit that is bold and unflinching, searching and thoughtful. That is a path that points the way toward a better America, a nation more just and admirable, for ourselves and for posterity.

Thomas E. Templin of Lexingtonis a historian.

Read more here: http://www.kentucky.com/2014/11/24/3556246_us-today-looks-too-much-like-george.html?rh=1#storylink=cpy

 

COURT OF APPEALS JUDGE JOY A. MOORE HAS A NEW NAME….JOY A. KRAMER

Friday, November 21st, 2014

JUDGE  JOY MOORE HAS APPARENTLY REMARRIED AND NOW GOES BY THE NAME OF JUDGE JOY A. KRAMER.

This information was posted by AOC on Nov. 21, 2014

 

Lawyer is disbarred for ‘inexplicable incompetence’

Friday, November 21st, 2014

 (see video of his argument in Jefferson garb)

POSTED NOV 17, 2014 07:29 AM CST

BY DEBRA CASSENS WEISS


 

A lawyer who told jurors his capital murder client was a “professional drug dealer” and a “shooter of people” has been disbarred for “inexplicable incompetence.”

The Kansas Supreme Court posted itsopinion (PDF) on Friday as well as a video of oral arguments in which Dennis Hawver appeared dressed as Thomas Jefferson. (A good shot of his attire is at five minutes and 17 seconds; his argument begins at 22 minutes and 38 seconds.) The Wichita Eagle has coverage.

At trial, Hawver described his client, Phillip Cheatham Jr., as a “professional drug dealer” and a “shooter of people,” according to findings of fact cited by the state supreme court. During the sentencing phase of the trial, he said the killer should be executed. “I had a single mitigator to offer the jury in sentencing,” Hawver said in an affidavit, “and that was my argument that my client was innocent.”

Hawver didn’t investigate alibi witnesses and didn’t track his client’s cellphone to find his location at the time of the murders, the court said.

According to previous coverage of the case, Hawver had argued at trial that his client would never have left a witness alive if he had shot the two women victims.

Hawver had never previously tried a capital murder case and had not tried a murder case in more than 20 years, according to the opinion. He was unfamiliar with ABA guidelines for trying capital murder cases. At trial, he informed the jury his client had previously been convicted of voluntary manslaughter, even though prosecutors agreed to a stipulation that the client had a prior felony conviction without further details.

Hawver had testified his client would pay him the $50,000 fee only if jurors returned a not guilty verdict. In an affidavit, Hawver also said he failed to seek dismissal of the capital charge after the Kansas Supreme Court struck down the death penalty scheme.

Hawver had said he had no funds for a pretrial investigation and he didn’t call the indigent defense board to explore whether funding was available to support his representation. He also said he didn’t recall whether a board representative had called him with an offer to provide co-counsel, investigators, consultants and expert witnesses, but he doesn’t contest that an offer of funding was made.

During the arguments, Hawver identifies Jefferson as his hero and says he wore the outfit because he had a constitutional right to represent the client “as directed, instructed and agreed” by the client, “no matter what the ABA guidelines have to say.”

Hawver explained to the Kansas Supreme Court why he didn’t get cellphone records for an alibi defense. “I had no idea that cellphones had GPS capabilities at that time,” he said. “Did you? I didn’t. If I had known it, I’d have been on it like a dog on a bone.”

Hawver had argued the First Amendment protected his representation of his client and the Sixth Amendment protected his client’s decision to choose Hawver as defense counsel. The Supreme Court rejected both arguments.

“In this court’s view the essentially uncontroverted findings and conclusions regarding Hawver’s previous disciplinary history, his refusal to accept publicly financed resources to aid in his client’s defense, and his inexplicable incompetence in handling Cheatham’s case in the guilt and penalty phases of the trial are more than sufficient to require disbarment,” the court said.

The prior discipline involved Hawver’s participation in an attorney diversion program for violating the ethics rule involving competence.

Kentucky Supreme Court recently limited the authority of Kentucky trial courts to make awards of attorney’s fees for equitable reasons or to impose attorney’s fees as a sanction.

Thursday, November 20th, 2014

By David Kramer dkramer@dbllaw.com

The Kentucky Supreme Court recently limited the authority of Kentucky trial courts to make awards of attorney’s fees for equitable reasons or to impose attorney’s fees as a sanction. The Court, noting that attorney’s fees are not recoverable litigation costs under CR 54.04 unless they are provided for under a contract between the parties or by Kentucky statute, held that a trial court has discretion to make an equitable award of attorney’s fees or impose them as a sanction “only…when the very integrity of the court is in issue.” Bell v. Com., Cabinet for Health & Family Svcs., Dept. for Cmty. Based Svcs., 423 S.W.3d 742 (Ky. 2014) (emphasis omitted).

The Court in Bell listed several examples of situations in which the trial court’s integrity is implicated by an improper action of an attorney or a party: (1) a Rule 11 violation; (2) disregard of a court order justifying an award of fees under CR 37.02; and (3) a contempt proceeding. Only in those or similar circumstances does a trial court have discretion to impose fees as a matter of equity or as a sanction. The Court stated that the very limited prior Kentucky authority to the contrary was “misguided,” and reaffirmed Kentucky’s general adherence to the prevailing “American rule” under which fees are generally not to be awarded absent a right to recover them pursuant to statute or contract.

Note: The foregoing post includes commentary reprinted from the forthcoming 2015 supplement to 7 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2014 Thomson Reuters. For more information about this publication click here.

David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky

The Roberts Court Has Already Said That Obama Has The Power To Issue His Immigration Order

Thursday, November 20th, 2014

by Ian Millhiser Posted on  

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The Roberts Court Has Already Said That Obama Has The Power To Issue His Immigration Order

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President Obama is widely expected to issue an executive order permitting millions of undocumented immigrants to remain in the country without fear of deportation — or at least, without fear of deportation for as long as the order remains in effect. Indeed, sources tell ThinkProgress that the president is likely to announce the order on Thursday.

Congressional Republicans, as they often do when they disagree with a particular policy, claim that this executive order is illegal. Indeed, Sen. Jeff Sessions (R-AL), a leading opponent of immigration reform, claims that the executive order is an “unconstitutional action.”

Yet, the Supreme Court of the United States, including two of the Court’s conservative members, appear to disagree with Sessions and others who doubt the legality of the president’s impending action. In 2012, the Supreme Court struck down several provisions of Arizona’s controversial immigration law SB 1070. Justice Anthony Kennedy wrote the Court’s 5-3 opinion in Arizona v. United States, which was joined by Chief Justice John Roberts (Justice Elena Kagan was recused). Both Roberts and Kennedy are Republicans.

Kennedy’s opinion in Arizona does more than strike down several provisions of a state law, however. It also includes language highlighting the “broad discretion” the executive branch enjoys in matters relating to immigration:

Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.

Several details of this passage are worth noting. The Supreme Court says that aliens “may” be removed if they meet certain criteria, not that they “must” be removed under the law. The executive branch does not simply enjoy “broad discretion” over who is or is not removed, it also “must decide whether it makes sense to pursue removal at all.” Thus, according to the Supreme Court, the law clearly contemplates cases where the executive branch will choose not to remove someone that could be subject to deportation.

Admittedly, there may be some limits on executive discretion in this space. One provision of federal immigration law provides that the “[t]he Attorney General shall take into custody any alien who” meets certain criteria, such as they have committed a serious crime or they have previously “engaged in a terrorist activity.” As a constitutional matter, there are strong legal arguments that the executive branch may invoke something known as “prosecutorial discretion” if they do not wish to detain someone that the law commands them to “take into custody.” It is unlikely, however, that President Obama’s order will shield serious criminals or terrorists, so this constitutional issue likely will not need to be resolved.

In contrast to the mandatory language governing major criminals and terrorists, the statutory language governing most other removals of undocumented immigrants is far more permissive. It provides that certain individuals “shall, upon the order of the Attorney General, be removed.” Here, the key words are “upon the order of the Attorney General,” which indicates that an executive branch official has discretion to decide whether most undocumented immigrants are deported.

The Supreme Court’s opinion in Arizona also suggests that the executive branch’s discretion in matters of deportation may be exercised on an individual basis, or it may be used to protect entire classes of individuals such as “[u]nauthorized workers trying to support their families” or immigrants who originate from countries torn apart by internal conflicts:

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Notably, President Obama issued his Deferred Action for Childhood Arrivals (DACA) order permitting many young undocumented immigrants to remain in the country on June 15, 2012Arizona was decided on June 25, 2012. So the idea that the president might use his power to grant a broad class of undocumented immigrants new rights via an executive order would have been very much on the justices’ minds at the time that Justice Kennedy wrote language into the Arizona decision laying out the breadth of the executive branch’s discretion. It certainly was on Justice Antonin Scalia’s mind, who railed against the DACA order in a dissenting opinion.

President Obama also is not the first president to exercise his discretion to give broad relief to a class of undocumented immigrants. In 1987, the Reagan Administration granted relief from deportation to the minor children of parents who benefited from a 1986 immigration reform, even though the 1986 law did not grant that relief directly to those children. Three years later, President George H.W. Bush granted similar relief to approximately 1.5 million “family members living with a legalizing immigrant [] who were in the U.S. before passage of the 1986 law

The Constitutional Authority for Executive Orders on Immigration Is Clear

Thursday, November 20th, 2014

Eric Posner, a professor at the University of Chicago Law School, is the co-author of “The Executive Unbound.”

NOVEMBER 18, 2014

Critics of the plan the president is reported to be considering argue that the Constitution obliges him to “take care that the laws be faithfully executed,” an obligation that seems to give the lawmaker, Congress, the primary authority to set policy. They say that refusing to enforce immigration law against millions of illegal immigrants violates that constitutional duty.

Executive power has always included the power to allocate resources among enforcement efforts. The power has grown over the years.

Yet the Constitution also gives the president “executive power,” which has always been understood to include the discretionary power to allocate resources among enforcement efforts. The significance of this power has grown over the last century, as Congress has created vast regulatory agencies and given the president control over them.

Congress typically appropriates money for regulators, gives the president some vague guidelines and enacts far more laws than he could possibly enforce, and then allows him to set enforcement priorities as he sees fit. That’s why different administrations can pursue such different policies from each other without getting Congress’s permission first. The Reagan administration came to power promising to deregulate the economy, which often meant not enforcing the law, whether it was antitrust, environmental or financial.

If, under the Constitution, the president must enforce much of the law but need not enforce all of it, where should the line be drawn? It might be surprising that after two centuries of constitutional experience, we don’t know the answer. Probably the reason is that most of the time, the president’s nonenforcement decisions are not controversial. Every day, an executive branch official decides to drop an investigation, or not to prosecute a case, because resources are scarce and the harm caused by a particular legal violation does not seem serious. We don’t object because that’s a sensible thing to do.

And the sensible thing to do in the area of immigration law is to bring removal proceedings against the most serious violators — typically, criminals — while leaving otherwise law-abiding noncitizens alone. Given that Congress has not appropriated nearly enough money to deport 10 million or more people, this type of priority-setting is unavoidable, and not merely wise. Indeed, the president is just following in the footsteps of his predecessors, who also focused removal efforts on dangerous aliens. Congress has acquiesced in this practice for years. The president’s discretion over immigration is deeply interwoven in our law. As the Supreme Court recognized just two years ago, in the course of summarizing the statutory scheme: “A principal feature of the removal system is the broad discretion exercised by immigration officials.”

The only difference between the president and his predecessors is that the president has openly declared the de facto policy of his predecessors. We might disagree about whether this move is wise, but it’s not a constitutional violation.

 

Should We Impeach Chief Justice John Roberts?

Wednesday, November 19th, 2014

The fragile and faltering state of American democracy.

William Greider on November 19, 2014 – 10:47 AM ET

  • Republicans like to talk about impeaching President Obama, but there is a far more deserving candidate for impeachment—Chief Justice John Roberts of the Supreme Court. While the Republicans in Congress have blocked Democrats from enacting much of substance, the GOP majority in control of the Court has been effectively legislating on its own, following an agenda neatly aligned with their conservative party. Step by step, the five right-wing justices are transforming the terms of the American political system—including the Constitution.

They empowered “dark money” in politics and produced the $4 billion by-election of 2014. They assigned spiritual values to soulless corporations who thus gained First Amendment protection of free speech and religion. The justices effectively gutted the Voting Rights Act of 1965, even as they allowed state governments to create new obstacles for minority voting. The High Court made it okay to take guns to church and more difficult to keep guns from dangerous people. It rendered a series of decisions that collectively shifted political power from the many to the few.

This power grab by the unelected—and supposedly non-partisan—justices has already produced a historic rewrite of America democracy. But it was done by blatantly usurping the decision-making authority that belongs to the elected government in Congress and the executive branch. The Republican justices are not finished with their undeclared revolution. They will continue unless and until people rise up and stop them.

The Roberts Court’s latest target is once again President Obama’s singular achievement, the Affordable Care Act. Under peculiar circumstances just three days after the midterm elections, the Court announced it will hear another legal challenge that threatens to disable and perhaps destroy the new healthcare system.

The timing of this new intervention has a distinct odor of political collusion. The Republican takeover of the Senate is already invoked by Court allies to suggest the justices are merely responding to the will of the people. Some conservative Court watchers tout the new case as a chance for the chief justice to make amends and get with the program. The latest challenge was fashioned in Washington by the same club of right-wing legal foundations and pricey corporate lawyers who have been attacking affirmative action and other liberal reforms since the Reagan administration.

Michael Carvin of the Jones Day law firm is a cocky veteran of the right’s long crusade and the lead lawyer for the new case. He is already boasting of the outcome, even though the intermediate DC Circuit Court of Appeals has not yet ruled up or down as would normally occur before the Supreme Court agreed to consider it. Carvin dismissed the DC Circuit Court, now dominated by Democratic appointees, as a meaningless anomaly. He told a Talking Points Memo reporter he doubts that Supreme Court conservatives “are going to give much of a damn about what a bunch of Obama appointees on the DC Circuit think.” Goodbye to deference and regular order.

But might Carvin’s case still lose at the Supreme Court? “Oh, I don’t think so,” he said. That was his cute way of saying this time Chief Justice Roberts will be on board with the other four conservative justices. Carvin didn’t say why he is so confident, but he and Roberts seem to be old chums. At a Federalist Society event last year, Michael Carvin indulged in a bit of classy namedropping. The admiring conservative society reported that Carvin “told an anecdote in which Chief Justice Roberts approached him and jokingly chided him for having favored appointing Samuel Alito before Roberts.” What does this say about their relationship? Maybe nothing, but one would like to ask a few follow-up questions.

Roberts himself takes offense at accusations that the Roberts Court renders politicized decisions. He has frequently denied the charge. “We’re not Republicans or Democrats,” Roberts told students at the University of Nebraska law school. Unlike some of his right-wing colleagues, Roberts wants to have it both ways. He’s not an ideologue, just an earnest umpire calling balls and strikes.

Baloney. If Carvin and other conservative legal eagles are correct that this time the Chief Justice will rule against the healthcare law, that should give people a prima facie case for considering impeachment. At a minimum, people should demand a thorough public investigation into whether surreptitious political interference occurred (who said what to whom offstage?). If politicians are reluctant to go down that road, people can start their own inquiries. The chief justice should be forewarned what will likely happen if he does scuttle the ACA. I expect “Impeach John Roberts” signs and billboards to start popping up all over America as people finally figure out who did this to them. Hint: it was not Barack Obama.

A prime witness should be Linda Greenhouse, who for decades was the influential New York Times correspondent covering the Supreme Court (now at Yale law school). Greenhouse was admired for her fair-minded analysis and great clarity in explaining esoteric legal arguments, She finds the current state of affairs “profoundly depressing.”

Greenhouse explained in her blog posted at NYTimes.com: “In decades of court-watching, I have struggled—sometimes it seems against all odds—to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week I found myself struggling against the impulse to say two words: I surrender.” (Linda Greenhouse has not herself called for impeachment.)

The new case against Obamacare reads like “a politically manufactured argument,” Greenhouse wrote. She called the maneuvering “a naked power grab by conservative justices who two years ago just missed killing the ACA in its cradle.” As evidence, she cited the unusual twists in Supreme Court behavior. Normally it waits to see if there are conflicting views among circuit courts of appeal before taking a case for consideration. This time, the Fourth Circuit based in Richmond, Virginia, upheld the law. The DC Circuit in Washington has all twelve judges reviewing and seems very likely to uphold the law, since that court is now top-heavy with Democratic appointees. The Supremes went ahead regardless.

Greenhouse cited Michael Carvin’s confident boasting as suggesting the political flavor. She also invoked remarks by Professor John Yoo of UC Berkeley—famous in Bush years as the “torture lawyer” who defended brutal interrogations and a former clerk for Justice Clarence Thomas. On National Review Online, Yoo felt sure Roberts will now support the ACA challenge because the case “gives him the chance to atone for his error upholding Obamacare.” Yoo wrote: “What judge can resist the chance to reach the right legal result, fix mistakes from the past and act with popular support? It’s a Supreme Court trifecta.”

Over-confident Republicans naturally assume the public will be grateful if the Supreme Court rescues them from Obama’s healthcare system. But the first result is bound to be utter chaos and confusion and millions of people—mostly in red states—who discover they are the losers. If the GOP legal challenge succeeds, the High Court will rule that the federal exchanges—created for states that declined to create their own state exchanges—operate illegally because the ACA does not give them explicit authority to dispense the tax credits that subsidize health insurance.

A blizzard of low- and moderate-income buyers of insurance would be suddenly stripped of government assistance—around 5.2 million of them. But there is a cruel twist Republican leaders fail to acknowledge: their own red-state constituents will be the most victimized. Leading right-wing politicians have endorsed the very lawsuit that will punish the Southern and Western states if it prevails, while blue states and northern cities that are operating their own state exchanges may not suffer at all.

The lawsuit now before the Supreme Court, for example, has been formally joined by Senators Cornyn and Cruz of Texas, Hatch and Lee of Utah, Portman of Ohio, Rubio of Florida, Representative Darrell Issa of California and the state governments of Oklahoma, Alabama, Georgia, West Virginia, Nebraska, South Carolina and Kansas. If these politicians win, their states are the big losers.

But of course the citizens who will be screwed in the red states are mostly working poor or moderate-income families. Republicans are okay with that. They ostensibly believe that belt-tightening helps build character. The GOP may have a time with blowback from the insurance industry and other providers in the healthcare system. While it’s not widely understood, many billions in federal subsidies help people of limited means buy health insurance but they never actually see the dollars themselves. The money flows directly from the Treasury to the private enterprises. Insurance lobbyists are already on the case, explaining real life to clueless conservatives.

Up to this point, I have barely mentioned the logic of the conservative assault on Affordable Care. Because there isn’t much logic to it. It depends entirely on a narrow-minded reading of the original legislation—so ridiculously literal that only gnomes in a medieval castle could take it seriously. In a nutshell, the right-wing lawyers claim that the law describes how state-run exchanges will be able to dispense federal subsidies to people in need, but the law fails to say explicitly that federal exchanges have the same powers.

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Okay, the drafters could have repeated the requisite language to reassure fly-specking lawyers, but really there was never any doubt about the congressional intent. As the US Court of Appeals for the Fourth Circuit has ruled, the logic of the entire system over-rules any blurred language. The law says explicitly that the secretary of Health and Human Services has the authority to create federal exchanges when and where states don’t want to do it. In other times, any such ambiguity would have been quickly eliminated with a technical fix, routinely adopted by mutual consent.

But the new Republican Party refuses to go along with anything that resembles cooperation and might shine a good light on Democrats. What the right-wingers really hope to achieve is a total breakdown of the ACA’s complex architecture. Throw sticks in the spokes. Force the Obama administration to open the legislation for Republican tinkering. The Supreme Court appears to be pursuing a similar strategy In other words, right-wing senators want Supreme Court right-wingers to accomplish by edict what GOP legislators could not accomplish for themselves.

Barack Obama can win this fight by not giving in to the Supreme Court, even if he temporarily loses there. The president has to call out his opponents and tell the hard truth about their illegitimate abuse of power. People may listen if he genuinely fights for them.

People may recall the last time Americans wanted to impeach a Chief Justice was in the 1950s, when Earl Warren—a liberal Republican from California—championed Brown v. Board of Education in the long legal battle to defeat Jim Crow segregation. Chief Justice Roberts has been leading in the Court in the opposite direction. Instead of comforting the afflicted, he is comforting the comfortable.

Read Next: Thanks to the Roberts Court, corporations have more constitutional rights than actual peop

How the courts trap people who were convicted by bad forensics

Tuesday, November 18th, 2014

 

By Radley Balko November 17 at 8:00 AM

In a short opinion issued last week, a three-judge panel for the U.S. Court of Appeals for the Fifth Circuit unanimously upheld a federal district judge’s ruling against Louisiana prisoner James Koon, who in 1996 was convicted of killing an infant and sentenced to life in prison.

The medical examiner who testified against Koon was Steven Hayne, a controversial figure about whom I’ve written at length over the last eight or so years. The panel rejected Koon’s petition for a new trial based on what Koon claimed was newly discovered evidence that calls Hayne’s credibility into question.

The rejection itself was nothing new. Despite Hayne’s impossible workload (over about 20 years he performed on average 1,200 to 1,800 autopsies per year, by his own admission), his lack of board certification, and the fact that he has on multiple occasions given testimony that other medical examiners have said ranged from implausible to malpractice, to date no court has rejected Hayne as an expert witness. While some courts have overturned a handful of convictions that were based on his testimony, they’ve only done so in the most egregious instances. Where Hayne has given plausible testimony, or even implausible-but-not-completely-nutty testimony, the courts have generally refused to intervene.

But if Hayne isn’t a credible witness, he isn’t a credible witness. If he has shown that he’s willing to say outrageous things in a few cases, has lied about his certification, and has been shown to be sloppy and unprofessional in his work, the cases in which he gave plausible but debatable testimony (and was opposed by a more competent medical examiner) should be seen just as tainted as those in which his testimony was transparently ridiculous.

So far, the courts haven’t agreed. But a two-word phrase makes last week’s ruling different than all of the others.

The evidence shows the witness for Louisiana, Dr. Steven Hayne, a now-discredited Mississippi coroner, lied about his qualifications as an expert and thus gave unreliable testimony about the cause of death.

To my knowledge, this is the first time a court has acknowledged that Hayne has been broadly “discredited.” The acknowledgment is significant because of what the panel does next. Under federal law, in order to obtain a new trial based on newly discovered evidence, a convicted person must show that the evidence is either new or could not have been discovered at trial, that had the evidence been available at trial the jury would likely have convicted, and must file his petition based on the new evidence within a year of when the evidence “could have been discovered through the exercise of due diligence.”

The federal district court judge who first ruled on Koon’s petition determined that despite the evidence that Hayne has been discredited, Koon is not eligible for a new trial because the evidence about Hayne’s credibility problems became available several years prior to when Koon filed his claim: in July 2012. The Fifth Circuit panel agreed.

Koon’s claim is imprecise, but he states generally that Dr. Hayne was not properly certified or qualified to testify as an expert, and that he misrepresented certification in forensic pathology. Koon asserts he could not have known Dr. Hayne was unreliable until he received a report from the National Inmate Advocacy Program (NIAP) in September 2011.

The district court adopted the Magistrate Judge’s report and recommendation, which recommended that correspondence to Koon from the NIAP, its predecessor Review Case Research, and Koon’s trial counsel showed Koon had knowledge of Dr. Hayne’s unreliability and untruthfulness at least as early as June 2010. That adopted recommendation was not clearly erroneous. E.g., Wilson, 564 F.3d at 704.

For example, the news media also severely criticized Dr. Hayne between 2006 and 2008; he filed a defamation action in 2009 against the Innocence Project, based on its criticisms of him; and a Mississippi Supreme Court Justice criticized Dr. Hayne as unqualified in 2007. Edmonds v. State, 955 So. 2d 787, 802-03 (Miss. 2007) (Diaz, P.J., concurring). Koon’s assertion that he could not have learned of Edmonds from information in the Louisiana State Penitentiary law library is both implausible and immaterial in the light of the public information about Dr. Hayne that was available for several years prior to July 2011.

Koon discovered, or should have discovered, the factual predicate of his claim about Dr. Hayne more than a year before he filed the state habeas petition that would have tolled the limitation period. Because the limitation period expired before it was tolled, Koon’s petition is untimely.

Under a very precise reading of the federal law and relevant case law, this is all correct. It’s also incredibly unfair, and a stark illustration of just how ill-equipped the federal courts and federal law are to catch and correct flawed evidence disguised as expertise.

To be clear: I have no opinion about Koon’s guilt or innocence. I know nothing of the state’s case against him. But this ruling addresses only the matter of Hayne, and it finds that because Koon missed his deadline, it simply doesn’t matter that Hayne may not be a credible witness.

To explain why this is so unjust, some background is in order: Since the onset of DNA testing in the 1990s, we’ve been slowly learning that our criminal justice system frequently comes up short when it comes to keeping junk science and quack experts out of the courtroom. The landmark 2009 National Academy of Sciences report on forensics was clear on this point. From bite mark matching to hair and fiber analysis to “shaken baby syndrome,” the courts have done a poor job of demanding that experts be qualified and credible, theories be grounded in science, and statements of certainty be verified with statistical sampling before allowing such expertise to be heard by a jury.

And while the criminal justice system can’t seem to keep bad science out of its courtrooms during trial, once someone has been convicted, the same system then puts a premium on the “finality” of a guilty verdict. It’s a point Congress and past presidents have hammered home over the years by revising the federal criminal code to limit habeas appeals in federal court. In order to get relief from a federal court in post-conviction, a convicted person today not only needs overwhelming evidence of innocence, they must also show that this evidence is either new or was undiscoverable at the time of trial, and they must file their petition for within a year of the new evidence becoming available.

The problem with these laws with respect to bad scientific evidence is that science doesn’t operate on deadlines. Science is a process. Most forensic specialties aren’t actually sciences at all, but disciplines that were developed in police agencies and crime labs — not in the interest of pursuing knowledge, but in the interest of helping police solve crimes. Many fields of forensics, especially pattern-matching disciplines like fingerprinting, ballistics, and fiber matching, can’t calculate a statistical margin for error. That doesn’t mean they have no evidentiary value at all (although that’s true of some of these fields). It just means that they’ve never been subjected to scientific inquiry. Their underlying assumptions have never been tested. But these assumptions and the conclusions upon which the analysts base them are often presented to juries as science.  The practitioners in these fields  also often give testimony that expresses levels of certainty for which there is no statistical support. That is also a problem.

By contrast, DNA testing is steeped in science. DNA profiling was developed by scientists, with extensive scientific review. You’ll rarely if ever see two analysts disagree over a DNA profile the way you’ll often see, say, two bite mark experts or blood spatter analysts disagree over crime scene photos. Because we know how DNA markers are distributed over the human population, DNA analysis has a quantifiable margin for error. Barring tainted evidence or human manipulation, that margin is very, very small, though it’s still there, and it’s still acknowledged. A bad forensic analyst will often testify about his or her certainty about a match. A DNA analyst will testify about probabilities. Consequently, DNA evidence is one of the few ways the courts will let a wrongly convicted person get over the high barriers to a new trial or exoneration once a case is in post-conviction.

But DNA testing is also why we now know that many of those forensic specialties are flawed. It has shown that defendants were actually innocent in cases in which a bite mark expert or blood spatter expert or hair analysis expert said without equivocation that the defendant was guilty. Unfortunately, this has not been enough to get the federal courts to reconsider convictions in cases for which the primary evidence was from one of those same fields (or a disturbing number of cases, from the same expert), but for which DNA wasn’t a factor.

These forensics fields have largely avoided seeking out scientific validity for their claims because once the courts began accepting the analysts as experts, there wasn’t much incentive for them to do so. Again, purpose of forensics is to solve crimes. The end game is to testify in court and persuade a jury. Once you’ve accomplished that, you’ve won. Subjecting your methods and analysis to scientific scrutiny won’t get you any farther. It can really only hurt you.

Because these forensic fields haven’t sought out scientific validation, science has been slow to look into their claims. That began to change when we started to encounter the first DNA exonerations in the early 1990s. But full-on scientific scrutiny of forensics really didn’t get going until the last decade or so. (Here too, the process has been marred by politics and posturing.) And it’s worth emphasizing again that science is a process. It moves slowly. A study will get submitted for peer-review. It might then be published. Other studies will verify or contradict that study, or distinguish it in some way. There is no set point in time at which science will officially declare a theory to be proven or disproven. It’s about the process itself. It’s a gradual accumulation of knowledge.

Courts operate differently. Statutes of limitations toll. Procedural rules impose deadlines. The courts and the people who operate in them seem to feel that the integrity of the system demands the preservation of verdicts. Institutionally, the legal system and the system of scientific inquiry operate in fundamentally different ways. And we haven’t yet figured out how to reconcile the differences.

Let’s say someone who was convicted due to an expert’s diagnosis of “shaken baby syndrome” wants to file a post-conviction petition based onthe growing consensus that the theory is flawed. At what point does that year-long window to file the petition begin to start? Is it after the first critical study? The second? Is it once the scientific community has reached a consensus? What defines a “consensus?” How do you define the field of scientists among which a consensus must arise?

From the prospective of the wrongly convicted, you can see the trap, here. File too soon, and the court may conclude that you haven’t presented enough evidence that the forensic theory upon which you were convicted has been discredited. If you then try to file more petitions as more evidence comes out to bolster your argument, you risk the court concluding that this is an  issue you’ve already raised, you lost, and you’re therefore barred from raising it again.

Here’s a real-world example: Mississippi courts, prosecutors, and attorneys general continued to uphold and defend the credibility of the now notorious bite mark analyst Michael West well into the mid-2000s. This, despite the fact that West had been repeatedly exposed as a fraud going back to the mid-1990s. He had even been ostracized within the already controversial and scientifically suspect community of bite mark analysts. Mississippi Attorney General Jim Hood finally conceded only a couple of years ago that West wasn’t a credible witness. But while Hood’s office had by then stopped defending West’s credibility in court, the office continued to defend convictions won on West’s testimony. Hood’s staff did so by arguing that defendants who had already challenged West’s credibility at trial, on appeal, or in previous post-conviction petitions, and lost, were procedurally barred from raising that claim again. Thus, defendants are stuck: File too soon and you’ll lose on the merits and risk being barred from raising the claim when more evidence comes out. But if you wait for more evidence, you risk running afoul of the deadlines on newly discovered evidence.

So let’s get back to James Koon. Forensic pathology (the field practiced by medical examiners) is a particularly tricky area of forensics because it’s both objective and subjective. “There are four bullet holes in the victim’s heart” is an objective statement. You’ll rarely find two medical examiners arguing such a point. “The bullet’s trajectory suggests that the killer shot the victim while standing” is far more subjective. It may be true. But it’s confounded by variables, such as the body positions of the shooter and victim, the elevation of both, the angle at which the killer was holding the gun, and so on. How much stock the jury puts in a medical examiner’s testimony on such questions relies heavily on how credible the jury finds the medical examiner. This is particularly true if the defense has its own medical examiner with contradictory opinions. (Perversely, this is a system that rewards people who sound convincing to juries. A medical examiner who speaks in certainties will sometimes sound more persuasive to a jury than one who hedges his opinions and refuses to speak in absolutes, even though the latter is usually the more scientifically sound approach.)

In some cases, forensic experts have been clearly exposed as frauds, such as cases in which a crime lab technician was shown to have faked test results. Here, there’s a clear time for the clock to start running on that window to file a petition. In other cases, such as Hayne, the information has come out in a stream, so it’s far less clear.

The Fifth Circuit has now apparently decided that Dr. Steven Hayne is no longer a credible witness. But when did the court reach that conclusion? And how was James Koons supposed to know?

Consider the following:

1. Mississippi Attorney General Jim Hood still defends Steven Hayne as a credible witness.

2. To this day, Hayne still testifies as an expert witness in Mississippi’s courts. He has effectively been barred from testifying for the state in new cases by a state law requiring such experts to be board-certified in forensic pathology. But he can still testify in retrials of old cases for which he performed the autopsy. He’s still defended as credible in state briefs. And he now sometimes testifies for the defense and in civil cases. (Bizarrely, this has led to situations — including the recent publicized trial of Pebbelz Da Model — in which the same state that has been defending Hayne in court briefs attempts to discredit him by using the same attacks on his credibility that it dismisses in those briefs.)

3. It’s true that the Mississippi Supreme Court tossed Hayne’s testimony in the previously mentioned Tyler Edmonds case. One would think Hayne’s testimony in that case would have been enough to discredit him, and perhaps provide a point at which the click on new evidence could begin ticking. (Hayne preposterously claimed that he could tell by the bullet wounds in the victim that two people were holding the gun that fired those bullets — thus confirming the prosecution’s theory that a brother and sister simultaneously killed the sister’ husband in his sleep.) But in the same opinion, the court explicitly noted that its ruling applied only to that case, and that as far as the court was concerned, Hayne was still a credible witness.

4. In fact, just months after the Edmonds decision in 2007, a federal district court judge in the same Fifth Circuit where the appeals court issued last week’s opinion made the same declaration.

The petitioner also claims that he has discovered new evidence that Dr. Hayne, who testified as an expert on behalf of the state at trial, should not have been allowed to testify as an expert in forensic pathology. The petitioner’s new evidence claim arises out of a recent state court decision, in which the state supreme court found that Dr. Hayne should not have been allowed to testify to a matter beyond his expertise-based on the facts in that case. The court did not however, conclude that Dr. Hayne was not an expert in the field of forensic pathology. Instead, the court found that the particular opinion offered by Dr. Hayne in the Edmonds case should not have been allowed without any scientific testing to support it. The petitioner refers to Justice Diaz’s concurring opinion in Edmonds-in which Justice Diaz stated his belief that Dr. Hayne should not have been qualified as an expert. This expressed belief by a single Mississippi Supreme Court Justice, however, was not the finding of the majority-and does not constitute ‘new evidence’ for purposes of § 2244(d)(1)(D). As such, the petitioner’s arguments in support of use of the factual predicate exception must fail.

5. In the 2009 case Brown v. Kelly, another federal district court judge from the Fifth Circuit considered the case against Hayne’s credibility, which by then had grown, and again found it lacking:

Petitioner argues that Dr. Haynes [sic] was not qualified to provide expert testimony for three reasons: 1) he was not qualified to serve as the State Medical Examiner because he was not certified in forensic pathology; 2) he testified that he performed between 25,000 and 30,000 autopsies during his 25–year career, which Petitioner claims is “highly unrealistic”; and 3) he provided “questionable” testimony in another case, reported in a recent magazine article. Petitioner claims that his attorney was ineffective for failing to investigate Dr. Haynes’ qualifications (or alleged lack thereof) as an expert and that if he had, he would have been prepared to object to his testimony at trial . . .

However, it seems clear to this court that based upon Dr.Haynes‘ qualifications, he was amply qualified to provide expert testimony in the field of forensic pathology. Moreover, Plaintiff’s arguments regarding Dr. Haynes lack merit. First, the fact that Dr. Haynes was not qualified to serve as the State Medical Examiner has no bearing on whether he was qualified to provide expert testimony. Second, Petitioner’s claim that the number of autopsies performed by Dr. Haynes is “highly unrealistic” is pure speculation. Finally, the fact that Dr. Haynesmay have been criticized in a magazine article does not establish that he was not qualified to render an expert opinion at Petitioner’s trial. In short, Petitioner has failed to establish that his attorney was ineffective in failing to investigate Dr.Haynes‘ qualifications or to object to his testimony and, therefore, this claim for habeas relief should be dismissed.

(Note here that the judge repeatedly and incorrectly refers to Hayne as “Haynes.”)

6. In the 2011 case Council v. Bingham, a federal district judge in the same Fifth District again ruled that the growing media coverage (including my own) of Hayne and mounting questions about his credibility still didn’t undermine his status as an expert witness.

Council claims she is innocent of the charge based on new evidence that Dr. Hayne is not licensed and is a forensic fraud and wrongfully testified in her case . . . She further states thatDr. Hayne testified that the victim was stabbed six times but never stated how the wounds were inflicted. Id. Council attaches to her petition an article by Radley Balko, “CSI: Mississippi, A case study in expert testimony gone horribly wrong,” criticizing Dr. Hayne and his qualifications . . .

The fact that Dr. Hayne may have been criticized in a magazine article does not establish that he is a “forensic fraud” or that he wrongfully testified in Council’s case.

In a footnote, the court adds:

According to the magazine article, Dr. Hayne is not board certified in forensic pathology. See Petition [1–3] at 30. At trial, Dr. Hayne testified that he is a physician practicing in the fields of anatomic, clinical, and forensic pathology. He did not claim to be board certified in forensic pathology . . .

The article also references the Mississippi Supreme Court’s decision in Edmonds v. State . . . where the court reversed and remanded defendant’s murder conviction, holding in part that Dr. Hayne’s testimony pertaining to the two-shooter theory was improperly admitted, as the State made no proffer of any scientific testing performed to support the theory. However, as Respondent points out, the court did not find that Dr. Hayne was not qualified to proffer expert opinions in forensic pathology. Respondent further notes that since the Edmonds decision, Mississippi appellate courts have consistently found Dr. Hayne qualified to testify as an expert.

Here, the ruling is correct: Appeals courts in Mississippi have consistently upheld Hayne’s status as an expert witness. The ruling lists two of them:

See Lima v. State, 7 So.3d 903, 907 (Miss. 2009) (holding that the trial court did not abuse its discretion when it accepted Dr. Hayne as an expert, despite defendant’s claim that Dr. Hayne was not qualified as an expert “because his work load was too heavy, he lacked reliability, his work lacked peer review, and he was not board-certified by the American Board of Pathology in forensic pathology”); Keys v. State, 33 So.3d 1143, 1150 (Miss. Ct. App. 2009) (finding that Dr. Hayne’s testimony as to the cause and manner of death of victim was permissible where the trial court accepted that Dr. Hayne was qualified as an expert in the area of forensic pathology without any objection or voir dire from defense counsel).

So it’s now 2011, and there’s still no reason for someone like Koon to believe that the courts have any problem with Hayne as a witness.

7. As I wrote in a post here at The Watch, just last January a separate panel from the very same U.S. Court of Appeals for the Fifth Circuit that denied Koon ruled in a separate case that the petitioner “[did] not show that Hayne’s testimony at trial was false or unreliable.” One federal judge, E. Grady Jolly, was actually on both panels.

8. As I mentioned in that same post, as well as in this report from a couple years ago, state officials in Mississippi have tried desperately to keep information about Hayne, his autopsies, and his arrangements with the state from becoming public. It seems unfair to then punish those he has helped convict because they couldn’t access that information sooner.

So as recently as last January, the same federal appeals court, including one of the same judges, found a petitioner’s claims about Hayne’s credibility to be without merit — and that decision is in addition to two other federal circuit court rulings and numerous court decisions from the Mississippi Court of Appeals and the Mississippi Supreme Court coming to the same conclusion since my first expose of Hayne in 2006 and the Tyler Edmonds ruling in 2007.

In fact, we’ve only really started to see court opinions expressing concern about Hayne’s general credibility in the the last couple of years. That has only happened in a handful of cases, and those opinions have been matched or exceeded by opinions still finding no problem with Hayne as a witness.

The Catch-22 for someone like Koon is compounded by the fact that Louisiana only offers post-conviction indigent defense services to those who have been sentenced to death. Since Koon was sentenced to life in prison, he hasn’t had an attorney since he lost his appeal. He filed his post-conviction petition himself. The court is saying here that, from his prison cell, an indigent defendant like Koon should not only have been keeping abreast on each revelation about Hayne’s credibility as it happened, he also should have known the precise moment when those revelations tipped the scales to make Hayne officially “discredited” in the eyes of the court — even though the court itself can’t or won’t say precisely when that occurred — and filed his petition within a year of that moment.

If you support the death penalty (I do not), there is an argument for imposing a deadline on claims based on newly discovered evidence in those cases. Hayne testified and helped convict people who turned out to have been innocent. But he has also helped convict a lot of people who were guilty. Without a deadline, when revelations come out about a prolific witness like Hayne, guilty death row inmates whom Hayne helped convict — but for whom there’s other ample evidence of guilt — could sit on the new revelations for years in order to buy themselves time.

But a deadline makes little sense when we’re talking about people serving long or life sentences. These people just want to get out. It’s hard to see how someone like Koon could game the system by waiting to file. At worst, he knew about the earlier revelations and held off because he wanted to wait until there was enough evidence to persuade a federal court. But that isn’t gaming the system, it’s understanding the high bar in getting a court to overturn a conviction. More likely, he just wasn’t aware of all that had come out about Hayne. If the court does indeed believe that Hayne is now discredited, then Koon deserves a new trial. Perhaps a different, more credible medical examiner would look at the photos and slides from Hayne’s autopsy and come to the same conclusion, and Koon would still be convicted. Perhaps, as has been the case in the past, Hayne’s autopsy report would prove to be too vague and lacking in detail for credible forensic pathologist to draw any conclusions. If that’s the case, then it would be the state’s mistake for entrusting the autopsy to Hayne, and Koon should be freed.

This is in part a failure of the courts, in part a failure of the federal law (and Congress for passing it), and in part a failure of the elected and public officials who have used and defended Hayne over the years. Regardless of who’s to blame, Koon was convicted due to testimony from an expert the court now admits isn’t credible. For the same court to nevertheless uphold his conviction because he missed a deadline is to keep him in prison on a technicality. It’s a cynical outcome that suggests the criminal justice system values process more than justice.

 

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book “Rise of the Warrior Cop: The Militarization of America’s Police Forces.”

Guest column: Sixth Circuit Court’s punt on gay marriage is a Failure of justice

Tuesday, November 18th, 2014

 

By Guest writer 
on November 18, 2014 at 8:00 AM, updated November 18, 2014


By Douglas Meeks
Douglas Meeks is a Lansing lawyer who married Republican strategist Greg McNeilly.

Court after Court has been nearly unanimous: the U.S. Constitution bars discrimination in the form of bans on same-sex marriage. 32 of 50 states currently recognize marriage equality. So many Federal Circuit Courts have agreed that the U.S. Supreme Court said there was no reason for them to engage.

Proponents of banning same-sex marriage have been losing and running out of time.
Enter the Sixth Circuit (which represents Kentucky, Michigan, Ohio and Tennessee). All eyes were on the Sixth Circuit Court of Appeals. Like a championship football game, it is the last quarter and all eyes are the quarterback (Sixth Circuit), as they step up to the line of scrimmage. And… they punt!

It was quite obvious at the onset the Sixth Circuit majority wanted no part of making a decision that would legalize same-sex marriage.

Like a game of hot potato, the Sixth Circuit Court punted as to who should make the decision on whether same-sex couples should have the right to marry. The United States Supreme Court? A majority of voters in each separate state?

In lieu of interrupting the Constitution, the Sixth Circuit wondered aloud in its decision that perhaps gays need to work harder, wait longer—get out there and change the minds and hearts of their citizenry.

Acknowledging discrimination occurs, the Sixth Circuit proceeded to contemplate – like a college philosophy class – on the interrelation between historical marriage, modern inequality and the virtues of a democracy versus a republic. Meanwhile, failing to address the issue and punting back to its respective states.

Sadly, this is no game.

The Court’s failure impacts real people. Families who on an everyday basis are living their lives, raising children, paying bills and engaged to improve their community. They are regular Americans who are denied the freedom to marry who they love, protect their families, and be treated equally by their government who doles out benefits to marriages of those it has chosen as “winners.”

Michigan is now once again in the minority of states who refuse to allow its LGBT families to be recognized by law. While waiting for the highest Court to resolve this injustice or the democratic process, LGBT families continue to be saddled with inequality of benefits, second-class stigma and in too many cases, a lack of protection for their children and families.

The delay of justice one minute continues to harm the LGBT community for a lifetime. Gays and Lesbians are no different from the rest of the public, we all want to live life to its fullest, we all will die, and we all don’t know how many more days we will be on this earth.

The Sixth Circuit thinks we should just wait more time, wait for the Supreme Court, and wait for the democratic process to work itself out. Thankfully this judicial panel did not sit in review of Brown v Board of Education. Time is precious, and not infinite. Why should the LGBT Community’s life, liberty and happiness be deprived one more day?

The Sixth Circuit argues that the LGBT community should change the hearts and minds of Michigan Citizens through the democratic process, and continue to wait for the majority to recognize the injustices. This is somewhat akin to asking a bully to recognize they’re being a bully. It is as if the Sixth Circuit Court of Appeals forgot that we are a republic and not a democracy ruled by the majority. While forgetting that, they forgot their constitutional responsibility to exercise checks and balances to ensure that a majority does not discriminate against a minority.

As of today I have been married 230 days, not a day goes by that I don’t look down and see the ring on my finger and smile. I am lucky to have found love and marry my best friend. I was able to do it in the State of Michigan, the state I call home, with the people that I love and who love me.

Sadly, this last punt has been emotionally hard and the uncertainty unnerving. Many of our friends are contemplating leaving this State of Michigan for a State that recognizes same sex marriage, protects their families and ensures their employability. I only can say, stay! Fight! Get involved! There will be another fight, and with that fight — the triumph of love.

Do you have a guest column on a statwide topic to share? Email Director of Community Engagement Jen Eyer at jeyer@mlive.com

PROBABLE CAUSE DEFINED

Tuesday, November 18th, 2014

PROBABLE CAUSE

COM. V. JONES, 217 S.W.3D 190 (KY., 2006) -

“[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”17 Thus, in order to determine if probable cause has been shown, the “principal components” a reviewing court must examine are “the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.”18 Thus, as evidenced by the use of the adverb “immediately” to modify the adjective “apparent,” probable cause must be met at the time the officer touches the item in question and post-touching conduct cannot be used retroactively to find probable cause.19 Although an appellate court must defer to the findings of fact made by a trial court, “as a general matter determinations of reasonable suspicion and probable cause should be reviewed [de novo] on appeal.”20 Since the trial court made no real findings of fact in this case, our review is completely de novo.” “…this case is remanded to the trial court with instructions to suppress the evidence obtained during Teagle’s warrantless search of Jones..”

FEDERAL GRAND JURY INDICTS CEO OF COAL COMPANY IN DEATH OF MINERS – ARTICLE ALLEGES HE “BOUGHT” W.VA. SUPREME COURT JUSTICE

Tuesday, November 18th, 2014

It was an extraordinary moment last week in Charleston, W.Va., when a federal grand jury handed down a four-count criminal indictment against former coal company CEO Don Blankenship.

Extraordinary because it’s often difficult for prosecutors to directly tie those at the top of the corporate ladder to misdeeds below.

And, as Kentuckians know too well, the coal industry in Appalachia is rarely held accountable for its wrongs. If you doubt that, check out NPR’s recent reporting by Howard Berkes on the industry’s massive backlog of unpaid fines for mine-safety violations.

Justice is being served in the preventable disaster that killed 29 coal miners at Massey Energy’s Upper Big Branch mine in West Virginia in 2010, thanks to the determined efforts of U.S. Attorney Booth Goodwin and his assistant Steven Ruby.

Blankenship was charged with conspiring to willfully violate explosion-prevention rules for proper ventilation and dust control, conspiring to conceal safety violations and thwart safety enforcement, and lying to the investing public and the Securities and Exchange Commission about the company’s safety practices and record.

Unfortunately, U.S. District Judge Irene Berger threatens to mar this shining moment for the justice system with a sweeping gag order.

Berger, who has sentenced three former Massey managers and a lower-ranking employee to prison for their parts in violating mine safety standards, placed a gag not only on lawyers in the case but also on the families of the victims, none of whom is on trial. Her order forbids them from speaking or releasing documents to the media.

She even ordered that filings in the case be excluded from the computerized system that makes court documents available to the public and media, meaning the public would be unable to follow each side’s arguments as the case develops. The Charleston Gazette reports that Berger’s order says only “docket entries,” brief descriptions of court filings, are to be publicly available.

The judge’s stated concern is that potential jurors will be biased by pre-trial publicity. But seating an impartial jury can be accomplished without trampling the First Amendment rights of individuals to speak and the media to report the news.

Transparency is especially critical to public trust in the prosecution of Blankenship because of his history of influencing the courts.

Blankenship in 2004 spent $2.5 million on electing a judge to the West Virginia Supreme Court who then cast deciding votes in Blankenship’s favor in a potentially expensive lawsuit, a ruling the U.S. Supreme Court eventually overturned.

Berger should revoke the gag order.

U.S. Sen. Jay Rockefeller, D-W.Va., was correct when he said that as Blankenship goes on trial he “will be treated far fairer and with more dignity than he ever treated the miners he employed.”

The judge can protect Blankenship’s right to a fair trial while also protecting the public’s right to know what is happening at every step of the process.

Read more here: http://www.kentucky.com/2014/11/18/3544782_coal-deaths-finally-tied-to-ceo.html?rh=1#storylink=cpy

 

Ron Formisano: Electoral catharsis achieved what?

Monday, November 17th, 2014

 

BY RON FORMISANO

November 17, 2014

Ron Formisano, professor of history at the University of Kentucky, is author of The Tea Party: A Brief History.

 

Well, let us hope the catharsis has some salutary effects. Maybe some Republican-voting Kentuckians have purged their hatred of President Barack Obama and now can enjoy — what exactly?

Obama will be president for two more years and the Congressional makers of gridlock in Washington are stronger than before. The eastern coal industry is in decline no matter what Obama does.

The president, we are told repeatedly, is “deeply unpopular” in Kentucky. And why is that? Archie Bunker knows: “He’s a Muslim, was not born here, and wants to help ‘poor people,’ and you know what that means.”

Edith: “But Archie, he’s half white.”

Archie: “Stifle it Edith.”

For younger readers, Archie and Edith were characters in the popular 1970s sit-com All in the Family that satirized white Americans’ prejudices, as well as the holier-than-thou moralism of Archie’s liberal son-in-law.

If Faux News had been around back then, Archie, ensconced in his armchair, would have been glued to the TV all day and perhaps comatose by nightfall. But let us count the ways Kentuckians should hate the president.

In 2009, as Kentucky’s economy tanked with the rest of the country, the federal government’s stimulus bill sent some $3 billion into the state for roads, law enforcement, schools, energy assistance and Medicaid: $900 million to Medicaid erasing a $232 million deficit. Apart from that, Kentucky receives $1.40 in tax money for every $1 it pays.

As of September, 521,000 people had enrolled in Kynect, Kentucky’s version of the Affordable Care Act. Poor people who have seldom seen a doctor now have health insurance.

But some still hate “Obamacare” and Obama, and believe the false charges about high premiums and other distortions.

Sen. Mitch McConnell wants to kill the ACA but said Kynect’s website was okay with him: but the website is Obamacare.

Kentuckians, he counts on our ignorance.

Poverty in Kentucky is pervasive and more white than black. Compared to previous Democratic presidents, Obama’s budgets have allocated significantly more assistance to low-income families for food, housing, education, and health care.

These benefits to Kentucky are outweighed of course by the mythical “war on coal.” To blame Obama for all the decline in the coal industry that has occurred on McConnell’s 30-year watch makes as much sense as blaming him for Hurricane Sandy.

Hatred of America’s first black president just partly ruled the mid-term election, a creation also of the five activist, reactionary Supreme Court justices whose delusional decisions that “money is speech” unleashed a $4 billion tsunami, much of it “dark money” from undisclosed sources.

Hundreds of millions went for attack ads. Negative campaigning, studies have shown, turns off many voters who stay home. So the embarrassing turnout of 37 percent was the lowest since 1942 when the U.S. was in a world war.

Anti-Democrats spent $200 million just trashing Obama. The Supreme Court’s reactionary majority got just the kind of election they want.

Negative ads discourage voters, while the voter ID and other laws passed by many Republican state legislatures prevent people from voting, targeting groups that vote mostly Democratic. Republicans’ claims that such laws prevent fraud are false since such cases are extremely rare and a pretty stupid way to try to cheat (easier just to rig the voting machines as Bush supporters did in Ohio in 2004).

Republican Sen. Rand Paul deserves credit for bucking his party on voter ID and other laws designed to suppress voting. But Republican efforts to suppress voting are ramping up again after their recent victories.

Whether Republican voters’ hatred of Obama dissipates or not — perhaps not among the minority who suspect he is a disloyal Muslim or the anti-Christ — the plutocrats and their allies will continue to demonize him.

Ron Formisanois the author of The Tea Party: A brief History. His forthcoming book is about inequality in the United States.

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Read more here: http://www.kentucky.com/2014/11/17/3542897_ron-formisano-electoral-catharsis.html?rh=1#storylink=cpy

SUPREME COURT DECISION MAY NEUTRALIZE THE HOBBY LOBBY CASE

Monday, November 17th, 2014

Quoting Hobby Lobby, Federal Appeals Court Hands Down Big Victory For Birth Control

BY IAN MILLHISER POSTED ON 

Quoting Hobby Lobby, Federal Appeals Court Hands Down Big Victory For Birth Control

A federal appeals court in Washington, DC handed down a decision on Friday that could neutralize some of the impact of the Supreme Court’s decision in Burwell v. Hobby Lobbyif it is upheld on appeal. Hobby Lobby held that employers with religious objections to birth control have broad immunity from federal rules requiring them to include birth control in their employer-provided health plan. Judge Nina Pillard’s decision in Priests For Life v. Department of Health and Human Services, however, indicates that there are limits to an employer’s ability to deny birth control coverage to their employees.

To explain, Hobby Lobby exempted employers with religious objections to birth control from a rule requiring contraceptive coverage to be included in employer-provided health plans. At the same time, however, the Court suggested that it might be possible for the government to accommodate religious objectors while still ensuring that birth control was widely available to women in the workplace. Prior to Hobby Lobby, the government accommodated non-profit employers by allowing them to exempt themselves from the birth control rules so long as they filled out a form notifying the government and their insurance administrator of their objection. In most cases, the insurer would then contract separately with the religious objector’s employees to ensure that they received contraceptive coverage. After Hobby Lobby, the government extended this accommodation to for-profit businesses and allowed religious objectors to invoke the accommodation through an alternative means if they objected to the form the government provided.

Judge Pillard’s opinion holds that this accommodation is enough to satisfy the government’s obligation to religious objectors, and it relies, in part, on Justice Samuel Alito’s opinion in Hobby Lobby to achieve this result. Hobby Lobby described the very same accommodation at issue in Priests For Life as “an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Moreover, as Pillard writes in her opinion, “the Supreme Court stressed that [the accommodation] alleviates the burden on the plaintiffs of having to provide contraceptive coverage and ‘serves HHS’s stated interests equally well.’”

Elsewhere in her opinion, Pillard lays out another flaw in the argument claiming that this accommodation does not go far enough to protect employers with religious objections to birth control. The Religious Freedom Restoration Act, which is the federal law governing religious liberty claims, applies when the federal government “substantially burden[s] a person’s exercise of religion.” Yet, as Pillard explains, the burden in Priests For Life could not be any more insignificant. “All Plaintiffs must do to opt out,” she explains, “is express what they believe and seek what they want via a letter or two page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state.” Indeed, Judge Pillard writes, “[t]he accommodation requires as little as it can from the objectors while still serving the government’s compelling interests.”

So, on the surface, Pillard’s opinion appears likely to survive review by the Supreme Court — if such review is even necessary at all. She relies on the language and reasoning of Hobby Lobby itself to justify her opinion, and she upholds a federal rule that imposes an extraordinarily mild obligation on employers. They must simply fill out a one page form or mail off a very short letter.

There are three reasons, however, why the fate of her decision is less certain. The first is that Pillard was a member of a particularly liberal panel when she decided this case — the other two judges who joined her opinion were appointed by Presidents Clinton and Obama. Pillard herself may be the closest thing the federal judiciary has to another feminist icon like Justice Ruth Bader Ginsburg. As an attorney, Pillard litigated two major women’s rights cases before the Supreme Court, and as a law professor she authored apre-Obamacare article arguing that “[t]he lack of a national requirement that insurance plans cover women’s contraceptives is emblematic of a much broader failure to make contraceptive access a priority to reduce the extremely high numbers of unintended pregnancies in the United States.” The five conservative justices, to say the least, do not share Pillard’s commitment to women’s equality and reproductive freedom.

Moreover, while Pillard is correct that federal religious liberty law only applies in cases where someone’s religious exercise is substantially burdened, Justice Alito’s opinion inHobby Lobby comes very close to reading this requirement out of the law. According to Alito, the Hobby Lobby plaintiffs’ “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”

Finally, despite the language in Hobby Lobby suggesting that the accommodation at issue in Priests For Life is acceptable, the Supreme Court called this language into doubt just days after Hobby Lobby in a case called Wheaton College v. Burwell. Dissenting in Wheaton College, Justice Sonia Sotomayor even implied that the Court’s majority was deceptive inHobby Lobby. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”