Right Juris

You can read through the indictment here. Judge Kent apparently has been a naughty boy. Apparently the current charges stem from accusations of sexual harassment. However, it does not appear that this is is first run in with controversy. Among other charges he has:

- had 85 cases reassigned away from him because they cases were being handled by his best friend Richard Melancon and there was allegations that Kent was involved in favortism on his behalf.

- he is notoriously playing the part of the bully, according to Prof. Lubet.

- You can also read more about his sexual harrassment charges at the Houston Chronicle.

So, the intriguing question here is, if Kent is acquitted, would it be permissible for Congress to still impeach him based on the facts of the case? Of course it is permitted in the legal sense of the term, since impeachment is a political process which is textually committed to the legislative branch of the federal government. However, should Congress proceed with such action based upon an acquittal?

The answer is they certainly could, based upon whatever evidence is available. The important step here is to remember what standard of evidence is required. In a criminal trial, you must convict based upon guilty beyond a reasonable doubt. Not so with a Senate trial. Just interesting food for thought. We’ll see where this case goes.

As a young man who was not legally able to drink, I can remember many a drunken night arguing the virtues of lowering the established drinking age of 21. The classic arguments were, “If I can fight and die for my country, why can’t I drink?” or “I can vote for the president, but I can’t have a beer?” Finally the old “In Germany you can buy beer at 16, why not here?” All these classic arguments are very appealing to those in the 16-20 age bracket. As I’ve grown older, I’ve found the old adage “If you are young enough to enjoy a drink, you are not old enough to have one” to be perfect apt. However, not some folks at the Amethyst Initiative have discovered some novel, and I think perfectly valid, arguments as to why we should lower the drinking age back to 18.

Here are some of the more interesting ideas the put forward:

A culture of dangerous, clandestine “binge-drinking”—often conducted off-campus—has developed.

Alcohol education that mandates abstinence as the only legal option has not resulted in significant constructive behavioral change among our students.

Adults under 21 are deemed capable of voting, signing contracts, serving on juries and enlisting in the military, but are told they are not mature enough to have a beer.

By choosing to use fake IDs, students make ethical compromises that erode respect for the law.

Just from personal experience, I found the following to be true: If I could not go to a bar and have a drink because I was underage, I usually ended up doing it out in the country, a friends basement, or some place “underground.” Invariably that meant that I would also be driving home drunk. I was very lucky and never injured anyone or myself, but I had several friends who were not so lucky. So, I wonder, if I was able to drink in a bar at the age of 18, and there was not stigma of “shame” I had to hide, would I have been more responsible and just called a cab as opposed to risking the drive myself? I think that on college campuses (campi???) this is even more compelling because bars are usually in close approximation to dorms, etc.

So, I guess I would be in favor of lowering the drinking age to 18. There seem to be many compelling reasons to do so, and very few negatives to not.

Technorati Tags: Drinking age

There is an interesting story out of California regarding a 53 year old mother who escaped from a Michigan prison 32 years ago. It seems when LeFevre was 19, she was given 5 1/2 years for heroin possession. However, instead of serving out her term, she decided to hop a fence (apparently it was minimal security) and start a new life. So, she ran to California and became a soccer mom. The amazing thing is that it appears she really did turn her life around. She became a mother and a regular member of society in California.

This is some-what of a tough case for me. On the one hand I say, you do the crime, you do the time. However, to complicate matters, it appears that the sentencing guidelines under which she received her jail sentence were later over-turned by the Michigan courts as being “improper” (not sure what that means). Also, 5 years seems harsh for a first time offender who’s crime was using heroin. If we were to lock up every heroin user out there, jails would be stuffed. So, a part of me wonders if we should just close this case and let her get on with her life. Of course, I take a rehabilitation view of the prison system anyway. We are supposed to be rehabbing these folks so they can live a normal life (except dangerous criminals, we want to separate them from the rest of society). It appears to me that this woman rehabbed herself, she was able to make her life productive, so why bother putting her back in jail and prosecuting her again.

On the other hand, we don’t want to encourage people to break out of prison, and what kind of example would we be setting if we just let her walk? This is a good law school exam question, there really doesn’t seem to be a clear cut answer to me. Oh well, good luck Ms. LeFevre.

Technorati Tags: Susan LeFevre

Apparently, Los Angeles will now require big box stores such as the Home Depot to provide shelters, which must include bathrooms, drinking water, tables to sit at and trash cans to illegal aliens day workers. You can read more about these requirements here.

My question is, what gives any city the right to appropriate land and property from a private company or individual so that another group of people can illegally (or legally now I suppose) loiter on their property? Not only must they allow these “day workers” to loiter on their property, but they have to encourage it by providing bathrooms and water? Am I the only one outraged by this?

I can smell a large lawsuit coming towards the City of Los Angeles. The government cannot turn a private corporation into a welfare agency, especially when that welfare is primarily benefiting illegal aliens day workers. Perhaps this is just an elaborate set up, hoping to lure day workers to a comfortable waiting area, where ICE authorities can conveniently round them up. Yeah, right.

Meet Allen West, who is running as Republican in the Florida’s 22nd Congressional District. Allen West is a very interesting candidate, and is surrounded with some controversy. West was stationed in Iraq as a Lt. Col. in the US Army. While stationed there, he was in charge of a suspected terrorist who was thought to have information regarding further attacks on American forces. While in his custody, some soldiers under his command thought it might be a good idea to start beating the crap out of the detainee in order to get him to talk.

Then, allegedly, West got in on the action too. When the detainee insisted that he was not a terrorist, Col. West pulled out his gun, and said you are going to talk to me, or I’m going to kill you. The detainee was still not cooperative, so Col. West drew his gun, pointed it and fired in the air. Soon, the detainee gave up everything he knew. He named the conspirators, gave times and dates of the assassination plan of a high ranking military figure, and even described how attacks would be made.

Of course, such actions (while maybe effective) led to the eventual discharge of Col. West. West was forced to resign from the military after nearly 20 years of service. He was threatened with jail time and a dishonorable discharge. However, news of his actions soon got out. He received thousands of letters from military personnel and American citizens. Even the Secretary of the Army, along with 95 members of Congress wrote a letter in support of Col. West. In fact, Col. West has the high honor of being named one of the worst people in the world by Keith Olberman. That should say enough right there.

Were Allen’s actions extreme? Yes, probably. Should they have led to his discharge? I believe not. The army had actionable intelligence regarding an assassination plot against a high ranking member. They pick up someone who seems to have knowledge of the plot. In my mind, this is your typical ticking time-bomb scenario. While Allen’s actions were extreme, they were effective. Sometimes there just is not time to play good cop bad cop, you just have to play bad cop.

Col. West is now running for Congress in the 22nd District of Florida. This is a swing district and pundits think that West has a good chance of winning. Here is what Allen (who is black) said to Obama in the wake of comments made by Obama regarding using the Race Card.

“My advice to Senator Obama is to run as a Man and Leader, and the American people will evaluate you as such, not as a victim. This is a Presidential race, based solely on a capacity to lead the United States of America. It is not about skin tone…however, perhaps we should come to expect these immature statements.

It also seems rather humorous that the Presidential candidate who was supposed to be such a “uniter” and transcend race is the one talking about it the most. If Senator Obama was confident in his abilities and character, he would not need to create a crutch for failure. Senator Obama has just tipped his hand, any criticism of him and his policies will be directly attributed to racism. I congratulate Senator Obama for taking race relations in America back some 30 years.”

Very candid words from someone who I think is an American hero.

Here is a link to his webpage: http://www.allenwestforcongress.com/

There was an interesting case out of the 9th Circuit last week which involved the the Navajo Nation and religious accommodation. Here is just a portion of the opinion that I found interesting:

In this case, American Indians ask us to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. [Footnote: It appears that some of the Plaintiffs would challenge any means of making artificial snow, even if no recycled wastewater were used.] The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities. We are called upon to decide whether this government-approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds.

Plaintiff Indian tribes and their members consider the San Francisco Peaks in Northern Arizona to be sacred in their religion. They contend that the use of recycled wastewater to make artificial snow for skiing on the Snowbowl, a ski area that covers approximately one percent of the San Francisco Peaks, will spiritually contaminate the entire mountain and devalue their religious exercises. The district court found the Plaintiffs’ beliefs to be sincere; there is no basis to challenge that finding. The district court also found, however, that there are no plants, springs, natural resources, shrines with religious significance, or religious ceremonies that would be physically affected by the use of such artificial snow. No plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified. The Plaintiffs continue to have virtually unlimited access to the mountain, including the ski area, for religious and cultural purposes. On the mountain, they continue to pray, conduct their religious ceremonies, and collect plants for religious use.

Thus, the sole effect of the artificial snow is on the Plaintiffs’ subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden” — a term of art chosen by Congress to be defined by reference to Supreme Court precedent — on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion.

Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further, giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone.

Lets leave behind the disturbing fact that artificial snow is partly made up of human feces (gives a new meaning to the phrase “wipe-out” on the slopes). I say bravo to the 9th Circuit for actually getting one right, especially on religious accomodation. I think the real beef the Navajos had here is the droves of recreational skiiers desecrating their mountain. They knew that they would get no where with that argument, so they came up with this attempted end-around. While I would be sympathetic to any real injury, essentially what they are claiming is that seeing a mountain covered in snow from reclaimed water is some how distiguishable from seeing a mountain covered by snow made from fresh water. If there were all that were required for a substainial burden to exist, we would all be in trouble. Any perceived slight would be viewed as a burden and our economy would collapse.

Technorati Tags: Exercise of Religion, Navajo

Our cousins up north (Canada) have this quaint little Torquemada inspired group called the “Human Rights Commission”. This groups main mission is to stomp on the free speech rights of Canadians. The constantly attempt to stop publications they deem to be offensive, particularly anything that Islam might find offensive. The author Mark Steyn, who is author of “America Alone” (#1 seller in America and Canada) also faced off against these Orwellian thugs. He fought hard against them and had the charges dropped based on a technicality, but really because they were getting so much bad press that they could not proceed against him.

Ezra Levant, a political editor is one of the recent victims of these kangaroo courts. He re-published several cartoons that Islam deemed to be offensive. So, the anti-free speech “courts” brought charges against him. The real question is whether this is a win or not. I suppose in the technical sense it is. However, the commission sent over $500,000 in pursuit of Levant and he spent over $100,000 of his own money defending himself. I’m really impressed with Levant’s response to his “acquittal.” On his blog, he makes the following statement:

In fact, it rather creeps me out that a whole squad of teat-sucking bureaucrats spent 900 days inspecting me and the Western Standard. I positively want to offend them. In fact, that’s pretty much the only test of my freedom: can I do exactly what Gundara says I shouldn’t? I’m not interested in publishing recipes or sports scores. I’m interested in bothering the hell out of government.

Right on! That is exactly the point. Authors should not have to work under the “chilling effect” of being sued by their own government simply because the government doesn’t agree with what is being published. I think the scariest part of all this is that the action in both the Steyn and Levant cases were brought by offended Muslims themselves, and then picked up by the HRC. Could you imagine CAIR being able to bring suits against every book, movie or cartoon that they deemed offensive. The author of the content would then have to spend time and money defending themselves. Publishers are going to be less likely to want to publish books that might offend Muslims simply because they do not want to spend time and money defending themselves from these types of commissions. Fortunately for us in the States, we have a very strong 1st Amendment which probably would prevent these types of commissions. However, every time I hear of statutes designed to prohibit “hate speech” etc. I cringe.

Technorati Tags: Mark Steyn, Ezra Levant, Canada, Human Rights Commission

Keison Wilkins, a Pro Se defendant in a Montgomery County courthouse was desperate. He knew the jury wasn’t buying his story, the judge seemed disinterested and the prosecution had presented a sound case. What is the next logical thing to do? Fake a heart attack of course.

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As Jim Drubert of the court said, “It was a very, very unusual occurrence, level one human drama.” Yeah, drama, I mean why not fake a heart attack when your case is going down hill. Read more about the story here. The best part about this video is the guy on the right never even flinches, even after Wilkins falls over. By the way, Wilkins ploy didn’t seem to work, he is now serving a 42-year prison sentence.

The Volokh Conspiracy has a great piece on Justice Roberts legal reasoning methodology. Justice Roberts, during his confirmation hearing was told the following story:

First umpire: “Some are balls and some are strikes, and I call them as they are.”

Second umpire: “Some are balls and some are strikes, and I call them as I see ‘em.”

Third umpire: “Some are balls and some are strikes, but they ain’t nothin’ ‘til I call ‘em.”

Now, from the modern liberal point of view, it is clear that the preferred judicial interpretation is the third one. The law is as how they see it being. Nothing exists prior to them, and only when they say “be” does law come forth. This is the only possible way you can reach decisions like Roe v. Wade. When you have to use a “penumbra” of various amendments to find a hidden right to privacy that is not to be found in the Constitution at all, only by subscribing to the third umpire can you reach such a legal conclusion.

However, Justice Roberts had this to say about the analogy:

Well, I think I agree with your point about the danger of analogies in some situations. It’s not the last, because they are balls and strikes regardless, and if I call them one and they’re the other, that doesn’t change what they are, it just means that I got it wrong. I guess I liked the one in the middle, because I do think there are right answers. I know that it’s fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations and, because of that, it should affect how we approach certain other issues. That’s not the view of the law that I subscribe to.

I think when you folks legislate, you do have something in mind in particular and you it into words and you expect judges not to put in their own preferences, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute. I think, when the framers framed the Constitution, it was the same thing. And the judges were not to put in their own personal views about what the Constitution should say, but they’re just supposed to interpret it and apply the meaning that is in the Constitution. And I think there is meaning there and I think there is meaning in your legislation. And the job of a good judge is to do as good a job as possible to get the right answer.

Again, I know there are those theorists who think that’s futile, or because it’s hard in particular cases, we should just throw up our hands and not try. In any case — and I don’t subscribe to that — I believe that there are right answers and judges, if they work hard enough, are likely to come up with them.

How simple and beautiful such reasoning is. Imagine a judge actually believing that he is a neutral arbitrator that is trying to find the will of the people (as expressed through their elected representatives). My liberal friends are always trying to convince me that the Constitution is a “living” document. They claim this is the only way that it can react to changes in society that our founders could not have comprehended (thus why the 2nd Amendment is not a personal right because they could not have foreseen automatic weaponry, etc.)

My response to that, and Justice Roberts as well I think, is that the founders did not have to write a Constitution that would respond to every changing eventuality. They created a system of Universal Truths, a system where the will of the People was paramount. Thus, why include the 9th and 10th amendments at all. There should be great deference given to our legislatures, because out legislatures are us. They were entrusted with the authority to respond to societal and technological changes that may come our way. You do not have to find make-believe rights in the Constitution, nor must you say it is a living document. It is not necessary, because the document itself has provided for all circumstances given the authority of our legislation and the will of the people.

Of course, the will of the people also led to slavery and Jim Crowism. The great thing about aberrations in society morality is that our Constitution has enough flexibility and enough protections for minority rights to protect our obvious rights like the right to vote and the right to not be considered property of other people. The problem with Plessy and other bad legal decisions is that they were founded on faulty legal reasoning, akin to Umpire #3. Had those opinions been closer to Umpire #2, and actually had read the Constitution they had plenty of authority (both legal and moral) to find the requisite rights to protect the people from the clearly immoral legislation.

Technorati Tags: Legal Reasonaing, Justice Roberts

A Florida judge has cleared the way for the family of Melinda Duckett to go ahead with their wrongful death lawsuit against CNN and Nancy Grace. Read about the case below, read the contents of the suicide note and see photos and a video.

Melinda Duckett

The family of Melinda Ducket are pursuing a lawsuit against CNN and former Georgia prosecutor and current show host Nancy Grace. Their lawsuit stems from a September 7, 2006 telephone interview Grace conducted with Ducket, the mother of a missing toddler. Melinda Ducket committed suicide after the interview and before it was aired on CNN. CNN went ahead and aired the interview with a notation on the bottom of the screen that stated: “Since show taping, body of Melinda Duckett found at grandparents’ home.”

The story of Duckett’s ill-fated odyssey into the cross-hairs of Nancy Grace’s dogged interrogation began with her reporting that her two-year-old son, Trenton Duckett, had gone missing. He went missing in August 2006 and Duckett did the pre-taped interview with Grace as part of the family’s attempt to publicize the case. Grace was harsh and accusing in her questioning of Duckett. She pounded the table, she asked her repeatedly why she hadn’t taken a lie detector test, she accused her of not telling the truth, she accused her of not helping with the investigation and more. Duckett was hapless and no match for Grace.

On September 8, 2006, she shot herself in her grandparent’s home with her grandfather’s shotgun. She left a suicide note, but no word on what had happened to Trenton (read note below). If Melinda knew anything about what had happened to her son, she intentionally left the world without telling anyone. He’s still missing.

Melinda remains the primary suspect in Trenton’s disappearance. While she was being investigated, it was discovered that she had been making amateur porn out of her home and selling it on the internet. Nude photos of her were on the web. There was one video of her straddling a cradle with the sound of a baby crying in the background. Its also been alleged there was a film of her giving oral sex while bottle feeding Trenton. Investigators were concerned that since she was conducting this business on her own, out of her home, someone could have found her from the internet. There’s some suspicion that she handed the toddler off to someone or that he was taken by someone who had connected with her over the internet.

Duckett’s family claims that Nancy Grace’s intense questioning led to Melinda’s extreme emotional distress and suicide. They claim that the death of Duckett has made the search for Trenton virtually impossible. Joshua Duckett, Trenton’s father, has continued his search for his son, but has had a few minor brushes with the law himself.

This latest ruling is in response to CNN petitioning a federal judge to dismiss the case on the grounds that it would jeopardize the future of journalists covering missing person cases.

Photos and Video