Thursday, April 30, 2015

S.Ct. hears 2 'hot button' cases

The U.S. Supreme Court just completed oral argument on two of its most controversial cases: One of these involved Oklahoma's new execution-drug protocol. The other involved legal gay marriage.  Expect 5-4 (or at best 6-3) decisions in both cases.  Based on his prior decisions, I predict the swing-vote, Justice Kennedy will vote with the Court's liberals (Sotomayor, Kagan, Ginsburg and Breyer) against Okla. and for gay marriage.  Chief Justice Roberts may surprise observers by also voting with the liberals.  Stay tuned for the decision which will be releases some time in late May or June.

Court upholds law on political campaign fundraising.

The U.S. Supreme Court recently upheld limits on political campaign money fundraising.  The Court distinguished prior cases such as Citizens United on the basis that this law involved judicial candidate fundraising.  According to (see link):
"What clearly made the difference, in this break from a string of First Amendment rulings protecting big money in politics, was that this was about judicial elections and the majority was worried that asking directly for money by a would-be judge was a serious threat to judicial integrity.   By assigning the main opinion to himself, as the nation’s highest-ranking judge, Chief Justice John G. Roberts, Jr., gave the ruling something of the stature of a national judicial policy declaration.
At issue in the case of Williams-Yulee v. Florida Bar was a state ethical rule that no candidate for a state judicial office may personally ask anyone for a campaign contribution — whether the person contacted was a lawyer, a friend, or even a family member.  That, the Chief Justice wrote, is sufficiently related to a state’s interest in impartial courts that it is permissible under the First Amendment."
  This makes sense to me although it is a limitation on First Amendment rights.  Remember, no right is absolute.

A surprisingly valuable source: Al Jazeera America-AMENDED

I have re-read the editorial and see the point of 44's comment. Let me amend the post to recommend only the NEWS section, but not the OPINION section.
"Al Jazeera America" has a suspicious sound to it, but it's news coverage is surprisingly good and relatively balanced.  I detect some left-leaning, at least in the editorials but I also detect a lot of insight that is provided by at least a partially 'outside,' non-Red v. Blue source.   On the other hand, it is partially funded by the ruling family of Qatar. Check it out.  See their news section. Thanks to Vince Kessler for suggesting I check out this source.

5 Top Criminal Law Myths in the U.S.

Excellent article on Findlaw.  Sometimes people's misinformation can get them in trouble.

Book Recommendation: Foner's "The Story of American Freedom"

As American's we are always watchful for infringements on our freedom.  Many are also interested in the concept itself.  This is why I strongly recommend, Eric Foner's book The Story of American Freedom. Although he is not without critics, and may lean a little to the Left,  Foner is one of America's most highly respected scholars of American history.  He was won just about every award for American history that there is. I stress his qualifications because too many people rely on history written by ideologues and think-tank employees and grantees.  That's no the way to get an accurate, balanced coverage.   No writer is above biases, but we can at least avoid the most obviously biased by checking the author's background.   If you only read the writings of ideologues, you will become one.

Basically, the  traces the various uses and abuses of the term over the course of American history up to the late 1990's.  Every politician and cause likes to wrap itself in the mantle of freedom.
Rather than re-invent the wheel and present my own review, I offer this excellent review from the Wall Street Journal.

More on Tulsa County Sheriff's Reserve Officer scandal

The more we dig into many of these very questionable law enforcement shooting cases, the worse it gets as revelations of misfeasance, malfeasance, incompetence and political patronage and corruption emerge.  Here's the latest on the 73-year old reserve officer who has been charged with second-degree manslaughter.  See also post below.  It's time for the Sheriff to resign,  In many of these incidents, it appears that lack of agency transparency is a factor that might have been a factor.  We need to be pushing for more transparency in law enforcement agencies.  Unfortunately, these revelations often cause us to lose sight of the majority of officers who are honest, decent, competent and law-abiding.

Monday, April 27, 2015

Feds criticize conditions at W. Texas Prison

"A prison in West Texas that holds mostly immigrant inmates and has been the scene of multiple riots was understaffed and failed to address persistent security problems, a federal report released Thursday said.
The Justice Department's Inspector General report criticized operations at the Reeves County Detention Center in Pecos, which came under heavy scrutiny beginning in late 2008 following the death of an inmate and two riots that caused an estimated $1 million in damage."

Police duty to those in custody, problems in Baltimore with PD

Once police take a person into full custody, they become responsible for protecting the suspect and seeing that needed medical care is provided. This is another area, like excessive use of force, that has spawned accusations of racism and police misconduct.  Demonstrations in Baltimore over the severe in-custody injuries of a black man have resulted in some arrests and violence. The suspect suffered severe spinal cord injury while in police custody.  He was transported in a police van to the station, not to the hospital. It is alleged that he was not secured and was alone in the back of the van. The department admitted he should have gotten medical help much sooner.  This is just one case is a history that has poisoned the relationship between the PD and many in Baltimore. 

According to the NYT;
"Last year, The Baltimore Sun reported that taxpayers had paid $5.7 million since 2011 in judgments or settlements in 102 lawsuits alleging police misconduct. A. Dwight Pettit, a lawyer who specializes in police misconduct and represents Tyrone West’s family in a wrongful-death suit against the city, said he had “20 open cases right now,” and was flooded with requests for representation.
Mr. Gray was not the first black man in Baltimore to emerge from a police van with a spinal cord injury. Jeffrey Alston, who became paralyzed from the neck down after a van ride, settled for $6 million in 2004. The following year, Dondi Johnson, also paralyzed after a van ride, won a jury award of $7.4 million, though it was reduced on appeal."

Acquittal in case of alleged sexual abuse of wife with Alzheimer's

The background for this case is in a post below.  According to the NY Times:
On Wednesday, a jury in Iowa found 78-year old  Henry Rayhons not guilty of charges that he sexually abused his wife, an Alzheimer’s patient, by having sex with her in a nursing home,  The sex came after staff members told him she was cognitively unable to give consent. However, there is more to this verdict than meets the eye.  See the link.

Thursday, April 23, 2015

Fourth Amendment Victory re extending traffic stop

In Rodriquez v. U.S., the U.S. Supreme Court held that officers violated the Fourth Amendment when they extended a traffic stop to wait for a drug-sniffing dog. The lower courts concluded that there was no reasonable suspicion or probable cause to extend the stop.  If either of those had been present, the extension would have been lawful  The Supreme Court did not deal with that issue. For more detail, see the Courts syllabus for the opinion at the link (“Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield  gainst unreasonable seizures”)

Thomas, Kennedy and Alito dissented. This is an issue that the Court had dodged for too long.  However, the finally came up with the correct decision.


DEA Director resigns after agency misconduct reports

It seems that the scandals involving federal law enforcement just keep on going.  The Secret Service and  FBI (see below) have now been joined by the DEA.  Charges include allegations of "sex parties" with prostitutes.

FBI forensic examiners overstated matches

According to the Washington Past, "The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.
The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison, the groups said under an agreement with the government to release results after the review of the first 200 convictions."

Police duty to render immediate aid to suspects hurt by police

The NY Times reported: "
He did not fire a shot. He is black, not white.

But Clarence W. Habersham Jr., the first officer to arrive on the scene after the fatal police shooting of an unarmed black man named Walter L. Scott, is drawing intense scrutiny both for the questions surrounding his response to the shooting and for what his role has illuminated about the pressures and expectations black officers face in largely white police departments.

Critics of Officer Habersham, 37, including black leaders and lawyers, have called for him to be prosecuted for what they say was his failure to provide adequate aid to Mr. Scott, 50, and for appearing to go along with what many viewers of a video of the shooting believe was an attempt by Michael T. Slager, the white officer who fatally shot Mr. Scott in the back, to plant a Taser by his body."

You also may remember an earlier shooting when an officer ran up to a fatally wounded suspect and told told him, in effect, it was his fault because he ran.

What both of these officers seem to have neglected is their legal duty to render immediate anyone who is hurt by any officers.  The legal duties do

Little data on police shootings available

According to this source the recent incidents involving police shooting unarmed suspects has "raised a question about policing that not even the Justice Department can answer: How often do officers across the country fire their weapons?
Under current federal laws, there is nothing requiring any of the 18,000 police departments and other law enforcement agencies across the country to report to the public or to the Justice Department anything about shootings involving officers."

Tuesday, April 21, 2015

Psychological Factor in Police Shooting

"The Justice Department recently analyzed eight years of shootings by Philadelphia police officers. Its report [see post below] contained two sobering statistics: Fifteen percent of those shot were unarmed; and in half of these cases, an officer reportedly misidentified a “nonthreatening object (e.g., a cellphone) or movement (e.g., tugging at the waistband)” as a weapon.
Many factors presumably contribute to such shootings, ranging from carelessness to unconscious bias to explicit racism, all of which have received considerable attention of late, and deservedly so.
But there is a lesser-known psychological phenomenon that might also explain some of these shootings. It’s called “affective realism”: the tendency of your feelings to influence what you see — not what you think you see, but the actual content of your perceptual experience. . . The brain is a predictive organ. A majority of your brain activity consists of predictions about the world — thousands of them at a time — based on your past experience. These predictions are not deliberate prognostications like “the Red Sox will win the World Series,” but unconscious anticipations of every sight, sound and other sensation you might encounter in every instant. These neural “guesses” largely shape what you see, hear and otherwise perceive.
In every moment, your brain consults its vast stores of knowledge and asks, “The last time I was in a similar situation, what sensations did I encounter and how did I act?” If you’re in a produce section, your brain is already predicting that an apple is nearby. If you are in a part of town with a high crime rate, your brain may well predict a weapon. Only after the fact does your brain check the world to see if its prediction was right."
The authors of the report note: "
Let us reiterate: We are not claiming that affective realism is the preferred explanation for police shootings that involve the misidentification of weapons. Nor are we claiming that racial bias has had nothing to do with such shootings. Indeed, affective realism may be one pernicious way in which racial bias expresses itself.
What we do know is that the brain is wired for prediction, and you predict most of the sights, sounds and other sensations in your life. You are, in large measure, the architect of your own experience."

New Report on shootings by police in Philadelphia

The report covers eight years.  It appears to be very comprehensive. See the 9-page "Executive Summary" at the beginning of the report.

Suicide by Cop?

Woman killed by police leaves note suggesting "suicide by cop."

Chicago paying out millions for police misconduct

Chicago is paying out millions to compensate people for police killings and misconduct according to the New York Times.
"  The City Council here agreed on Wednesday to pay $5 million to the family of a black teenager who was fatally shot by a Chicago police officer last fall, as federal and state prosecutors acknowledged that they were conducting a criminal investigation into the shooting.
The council’s decision came swiftly and with no debate, even before a suit had been filed in the case by the family of Laquan McDonald, 17, who the police say was wielding a three-inch knife when an officer shot him 16 times . . " That's not all.
Separately, the City Council this week began considering a $5.5 million reparations package for scores of victims of abuse and torture by the police here in the 1970s and ’80s under the watch of a notorious police commander, Jon Burge. Mayor Rahm Emanuel announced his support this week for the long-sought reparations, which would include a memorial and a formal apology for the mostly black South Siders who have described being shocked with cattle prods, beaten with phone books and suffocated with plastic bags to compel confessions.
The cases involving Mr. Burge and a group of officers under his command had haunted Chicago and its Police Department for years.
Since Mr. Burge was fired from the department in 1993, the city has paid out some $85 million in settlements and other costs."
When are the taxpayers and voters going to get fed up and say "enough is enough"?  It may be that corruption is so rampant and long-standing that people just take it for granted. Sad!

Saturday, April 18, 2015

More on the reserve deputy charged in killing suspect

The 73 year-old Reserve Sheriff's Deputy who has been charged with manslaughter  in the death of  a suspect (see post below) may have been in that position as a form of political patronage from the Sheriff.  There are also suggestions that his training records were falsified.  It is estimated that there are as many as 400,000 reserve police officers in the U.S.  This incident should trigger a re-evaluation of reserve officers.
Recall that in 2007 a BART officer was convicted in a similar case where the officer said he thought he was drawing his Taser while actually firing his handgun

Book on Boston Marathon Bombers

As you probably know, the surviving Tsarnaev brother was convicted of murder and other offenses arising out of the Boston Marathon bombing.  What appears to be the first book out on the brothers has now appeared.

Two Jailers Indicted

Two jailers in Harris County were indicted for ignoring a mentally ill inmate for weeks.

Dementia, consent to sex, and Rape

A former Iowa state legislator is accused of raping his wife.  The issue is whether, because of dementia, she was capable of consent.  Given the increasing number of persons with dementia or Alzheimer's,this is a significant issue.

Wednesday, April 08, 2015

Sesquicentennial of Reconstruction starting

The sesquicentennial of the Civil War ends this month.  However, the sesquicentennial of "Reconstruction" should not be ignored. If brought us 3 earth-shaking, freedom-enhancing constitutional amendments, 13th, 14th and 15th. All 3, but especially the 14th, when their promise was finally realized, changed the nature of federalism and strengthened the foundations of liberty in America.  Unfortunately, that is not what many remember. According to renowned historian Eric Foner:
"Reconstruction refers to the period, generally dated from 1865 to 1877, during which the nation’s laws and Constitution were rewritten to guarantee the basic rights of the former slaves, and biracial governments came to power throughout the defeated Confederacy. For decades, these years were widely seen as the nadir in the saga of American democracy. According to this view, Radical Republicans in Congress, bent on punishing defeated Confederates, established corrupt Southern governments presided over by carpetbaggers (unscrupulous Northerners who ventured south to reap the spoils of office), scalawags (Southern whites who supported the new regimes) and freed African-Americans, unfit to exercise democratic rights. The heroes of the story were the self-styled Redeemers, who restored white supremacy to the South.              
This portrait, which received scholarly expression in the early-20th-century works of William A. Dunning and his students at Columbia University, was popularized by the 1915 film “Birth of A Nation” and by Claude Bowers’s 1929 best-selling history, “The Tragic Era.” It provided an intellectual foundation for the system of segregation and black disenfranchisement that followed Reconstruction. Any effort to restore the rights of Southern blacks, it implied, would lead to a repeat of the alleged horrors of Reconstruction.
HISTORIANS have long since rejected this lurid account, although it retains a stubborn hold on the popular imagination. Today, scholars believe that if the era was “tragic,” it was not because Reconstruction was attempted but because it failed."

Officer charged with murder of suspect

A S.C. police officer has been charged with murder of a suspect.  The video looks very incriminating, but there is obviously more to the story.  Remember, even police officers are entitled to the presumption of innocence.

Saturday, April 04, 2015

RFRA & 1st Amend and Business Discrim against LGBT's--Business Loses Most Cases

The issue is whether religious-based objections by businesses to serving LGBT customers can overcome laws prohibiting such discrimination?  Do RFRA’s and/or the First Amendment trump such laws?  (It may be helpful to read the first post below first.) 
First, if there is no applicable law banning business discrimination against LGBT’s, there is no issue.  There is nothing for Freedom of religion to overcome. Only the government is bound by the First Amendment.   A few states have such laws (that is treated below).  There is no federal statute on the matter. The 5th and 14th Amendments requiring equal protection of the law only apply to governments. They do not apply to private businesses.  
Next, let’s go over First Amendment “free exercise of religion” rights.  The U.S. Constitution takes precedence over any state or federal law.  This is the bottom line.  Based in the case law, the basic principles are as follows. According the Supreme Court’s decision in Hobby Lobby, businesses and corporations have First Amendment freedom of religion rights, just like individuals.  They have this right against both state and federal governments.

Under the First Amendment, (According to Smith v. Employment Div.) if it is a neutral law of general applicability (not limited to any particular religion or specific religious belief), and does not implicate any other constitutional right (e.g. right of privacy), the Court does not require the government to meet the very difficult test of strict scrutiny (narrowly tailored to serve a compelling government interest).  This test is used in some situations, but not when the law is a general, neutral one.  A law banning LGBT discrimination by any business would be neutral law of general applicability (it applies to all businesses and is not aimed at a particular religion or religious belief). In this type of case, the government merely needs to show that the law is neutral and general and within the power of the states.  The states could, if they wanted, provide a religious exemption, but the First Amendment does not require that they do so. States have a general power to prohibit various types of discrimination.  Such a state law probably does not violate freedom of religion.  Under the Smith test, the business would not have a First Amendment right to discriminate.  Here we are talking about a business decision based on religious grounds.  We are not talking about discrimination in personal matters such as dating, marriage, etc.  These decisions are covered by the constitutional rights to privacy and liberty which would trump anti-discrimination laws, just like they trump laws requiring discrimination

 States have power to regulate commerce, as does the federal government when that commerce has an impact on interstate commerce.  Federal government power to enforce equal protection under the 5thand Fourteenth Amendments cannot trump individual or private business  rights.  The federal government can only enforce equal protection against state and federal  governments. States can enforce their own equal protection laws against individuals and private businesses, but those laws must meet U.S. Constitutional standards. 

Could a federal law, under Congress’ power to regulate interstate commerce banning business discrimination against LGBT’s survive a First Amendment challenge?  The federal government can regulate individual conduct under the Commerce Power)  Maybe they could, but that opens up a whole new can of worms.  Let’s move on the RFRA’s. 

The federal and  most, if not all state RFRA’s require that government laws and acts that substantially infringe on religious practices must be justified by government by showing that it is narrowly tailored to meet a compelling government interest (strict scrutiny).  The federal and state governments can statutorily bind themselves to a rule which, in effect, provides greater protection than the First Amendment.  The federal RFRA applies only to the federal government.  A state law applies only in that state.   In the absence of a state RFRA, the state and federal governments must meet only the lenient test of the Smith case.  If there is a state RFRA the issue would then be whether the anti-discrimination statute can meet the  state statutorily mandated strict scrutiny test.  This test gives the business owner more, but not absolute protection. Arguably, preventing discrimination on the basis of sexual orientation by businesses is a compelling governmental interest.  If the statute is carefully written to be neutral and general, serves a compelling interest and is narrowly tailored (to minimize damaged to religious rights) it could overcome the RFRA.  Again, the business loses.

You might ask then, why did the business win in the Hobby Lobby decision? Remember, that was a decision under the federal RFRA only.  The feds lost because the provision in the Obamacare statute was not narrowly tailored.  The government could use other alternatives that would not place a substantial burden on religious belief. Had the statute been more carefully drafter (narrowly tailored) Hobby Lobby would have lost.

Bottom line, religious-based discrimination in business against LGBT’s will not be protected by the First Amendment.  A carefully drafter state anti-discrimination statute would pass most state RFRA’s.  The business is going to lose most of these cases.

RFRA v. LGBT Rights--cont.

This debate gets more confusing all the time.  The debate ignores a number of important differences between constitutions and statues, and state v. federal laws ,etc. See this article helps sort things out.  States need to decide on whether they want laws that ban or limit discrimination against LGBT persons. Then the issue becomes whether that state law violates First Amendment freedom of religion.  I hope to get to that issue in a later post.  For now, however, in part, the article states:
"What has completely changed are the politics around the issue, the symbolism of what voting for one of these laws means," Sanders said.
In other words, it’s how some conservatives want Indiana’s law to work that fosters fear among civil rights advocates for how it might.
Still, constitutional law professors say both sides are misinterpreting the point of these laws. The courts have not approved exemptions to discriminate against gays under religious freedom laws, and likely would not because the government has a compelling interest in protecting civil rights.
The two sides are essentially yelling past one another about a non-issue when they should be working on enacting protections based on sexual orientation in Indiana, said Robin Fretwell Wilson, professor and director of the family law and policy program at the University of Illinois College of Law.
"If there’s a license to discriminate in Indiana, it’s the fact there’s an absence of a statewide law that makes a promise to the LGBT community," she said. "RFRA is about minoritarian religion against government, by and large."

Thursday, April 02, 2015

Conflict-of-Rights: Religious Freedom v. Non-Discrimination

The conflict between Religious Freedom Restoration acts and principles of non-discrimination against LGBT individuals is heating up.  It appears that pressure by large corporations (e.g. Walmart) will quash or get reforms to at least some of the state RFRA's.   Two important American values are in conflict here--religious freedom and non-discrimination.  Two groups are asserting conflicting rights.  This is a very complicated and thorny conflict-of-rights area.  If possible, the courts should stay out of it and let the legislative branch, which hopefully reflects public feelings, decide. One compromise would be to exempt public accommodations equality laws from the RFRFA. However, the Supreme has already decided one issue under the RFRA in the Hobby Lobby case.
Another issue not mentioned in the prior post on this issue is the fact that RFRA rights are not absolute.  Government can infringe on religious rights if it shows a compelling interest.  This is high burden to meet, but can be done. Stay tuned.

Educators convicted in test score falsifications

11 former educators and administrators were convicted for falsifying student text exam results.  A prior post noted similar convictions for educators in El Paso, TX.  Anyone who doesn't think public education in the country is in serious trouble, has their head in the sand. Additionally, although the two are often treated as a pair, common core and related standards on the one hand and high-stakes testing on the other, are separate issues.