More Than Enough Rope

SCOTUS Day 2: The Boys (and Girl) in Black are Back!

2007-10-02T19:36:00.000-07:00

Here are the transcripts of today's oral arguments:

Gall v. United States

and

Kimbrough v. United States

I'm Baaa-aack! And so is SCOTUS

2007-09-30T21:02:00.000-07:00

It's been a wild ride with the new job. I love it. I love every minute of it... It's a dream job for someone with ADD. I can bounce from task-to-task and put out fires and when I need distraction from the paper-working, I can usually find some physical labor that needs to be done. It's a good fit for me. And, I do quite a bit of work that relates to immigration, which is an issue near to my heart and my home.

In the near future, I'll have quite a bit to say about VAWA and the U-Visa... And the things that are being done to gut them... Grr.

But, for now, SCOTUS is starting a new term, and I'm anxious to hear what's going to happen. The court is pretty evenly divided, making Justice Kennedy's swing-vote even more critical. I can't say I was overly impressed with either Roberts or Alito and their contributions to last term's decisions. Not that I expected to be. I just hope that Bush doesn't have the opportunity to appoint another justice.

On the upcoming docket are three death-penalty cases (well, two so far, and one predicted...)
as well as a case restricting gun-rights, sentencing disparities in crack versus cocaine cases, child-pornography and the say of federal courts on how military courts try individuals overseas on charges of terrorism.

So, with a passel of high-value cases coming up, an evenly split court and Justice Kennedy providing the swing-vote, this term should be an interesting one...

Oral arguments start tomorrow with Washington State Grange v. Washington State Republican Party and Washington v. Washington State Republican Party (consolidated) and New York City Board of Education v. Tom F. (NOTE: Yeah, I was late getting a post up yesterday with the links to the transcripts of the oral arguments for the first day. What can I say? Customs and Border Enforcement thought I was interesting enough to question yesterday when I was crossing back from Mexico...Apparently the best way to avoid claims of racial profiling is to question the *least* likely people. Middle-aged Semitic women crossing on foot wearing the ID badge of a humanitarian group and carrying nothing but a 3-ring-binder apparently fit the bill...)

Tuesday will kick off with Gall v. United States, which considers sentencing guidelines and what constitutes abuse of discretion, and Kimbrough v. United States, which considers the disparity in sentencing for offenses involving crack cocaine and those involving powder cocaine.

Stay tuned!

Slow Time

2007-08-15T08:46:00.000-07:00

Slow for the blog.
Not for me.
I know I've missed commenting on quite a few things that have happened lately, including (baruch Hashem) a stay of execution, and sadly, a couple of executions carried out... Not to mention word that Michael Vick has been offered a plea deal (a rather sweet one...) that would give him less than a year in prison. Personally, I hope he takes it to trial. The world should hear about the absolute depravity that these people engage in.
Anyway. Here's part of the reason I've been so quiet:
I'm starting a new job, in an area that is very close to my heart. Not doing death penalty work, but working within an organization that combats domestic violence. Work that will give me a good mix of on-the-line work with women and children, and developing policy.
So, anyone who reads my rantings (yeah, both of you...) will please forgive me while I get my act back together and re-adjust priorities to accommodate everything I want to do.
I'm sure I'll be back to ranting and raving soon.

Dottie

Irony Supplement

2007-07-20T08:29:00.000-07:00

I hope that there are still people out there who appreciate irony...

While dog-fighting is a vile, cruel sport, and I whole-heartedly believe that those who are involved in it should be subject to harsh penalties, the irony of one particular statement was impossible to miss.

Dose of Irony #1:

Senator Robert Byrd, D-WV, apparently told his colleagues in open session that while he's seen one execution, he wouldn't mind seeing another "if it involves this cruel, sadistic, cannibalistic business of training innocent, vulnerable creatures to kill"

Um. Uh.

Wow. That one damn near left me speechless.

Dose of Irony #2:

One of the allegations was that at least one dog was killed by being doused with water and electrocuted.

It's cruel to do this to a dog... But an acceptable means of executing a human being?

Ish. I need a cup of day-old black coffee to wash the taste of this out of my mouth.

Darrell Grayson Execution Set for July 26- ACT NOW!

2007-07-17T21:21:00.000-07:00

Darrell Grayson is scheduled to die on July 26, 2007. I've blogged about his case previously, but time is running short.

This excerpt comes directly from an e-mail sent by Abe Bonowitz from Citizens United to Abolish the Death Penalty:

Alabama has refused to make its lethal injection protocol public. The 11 states that looked at lethal injection at least gave the matter pause and consideration. Alabama is doing everything possible to keep everything secret.
Why this secrecy? Why not at least stop and say-let’s review like the other 11 did?
Judge Watkins had set a tentative date for a 3 day trial on this for June 26th and then denied this due to pressure by the State, citing laches. Judge Watkins had been aware of this prior to setting tentative date.
Darrell Grayson had an all white jury and a divorce attorney for his initial trial.
Attorney failed to investigate citing insufficient funds from State.
Attorney told Darrell Grayson to throw himself on the mercy of the court, ie. confess although he had been in a black out the night of the crime with no recollection of the event.
A witness who had been with Darrell Grayson and Victor Kennedy, ( already executed for the murder), and Rodney Grayson that night drinking and drugging gave a sworn affidavit that Darrell Grayson was passed out cold and did not leave with Victor Kennedy or Rodney Grayson.
On the night of Victor Kennedy’s execution he sent word to Darrell B. Grayson via the
chaplain asking him for forgiveness. Victor Kennedy had steadfastly refused to answer Darrel B. Grayson’s questions about the events.
Darrell B. Grayson represented by the Innocence Project has been denied DNA testing of evidence, which could clear him because it would contradict his false confession of culpability.
In denying testing the State states that Darrell B. Grayson has not claimed innocence. As stated before, Darrell B. Grayson has no recollections of that night!

For Darrell Grayson's statement, go to Project Hope, Abolish the Death Penalty

If this execution offends you, please write to Alabama's Governor Bob Riley.

State Capitol
600 Dexter Ave.
Montgomery, AL 36130-2751

This is the governor's website

This is the public e-mail

The number for the switchboard is 334-242-7100

The fax number is 334-353-0004

If you believe that this execution is a miscarriage of justice, act to make a difference.

'Roid Rage? Try Again.

2007-07-17T11:38:00.000-07:00

Well, so much for the much touted "'Roid Rage" theory of the case.

Murdering pro-wrestler Chris Benoit had only the hormone testosterone present in his blood. Along with that, medical examiners found xanax, hydrocodone and hydromorphone (which is also a by-product of the breakdown of hydrocodone.)

All were at therapeutic levels.

What was interesting was the presence of Xanax in his son's body. The investigators supposed in the press conference that this indicated that the child was sedated before he was suffocated.

To me, this as much as anything else indicates that this wasn't a murder caused by the so-called uncontrollable rage resulting from steroid abuse. Drugging your victim is calculated and deliberate--not an enraged act.

Nancy Benoit's body apparently also showed the presence of hydrocodone and Xanax, and her blood alcohol content was measured at .18. Whether this indicated alcohol consumption or was caused by the action of bacteria as decomposition progressed wasn't clear.

If nothing else was clear from the toxicology results released just a few minutes ago, Benoit's acts weren't the result of steroid induced rage.

Troy Anthony Davis Receives Reprieve!

2007-07-16T18:43:00.000-07:00

Baruch H-shem!
Troy Davis got a reprieve, of up to 90 days, from the Georgia Board of Pardons and Paroles!
Somebody is finally listening.
Here's the speech given by Rep. John Lewis this morning.
I think he expressed very well many of the things that those of us aware of the case were feeling...

"Good morning, Chairperson Hunt and members of the State Board of Pardons and Paroles.

"It is a privilege to address you today, and I want to thank you for hearing me. I will not speak long, because what I have to say is very simple. I do not know Troy Anthony Davis. I do not know if he is guilty of the charges of which he has been convicted. But I do know that nobody should be put to death based on the evidence we now have in this case.

"Evidence that is dramatically different from what the jury heard. Evidence that I understand no court has ever considered, for technical reasons that have nothing to do with the truth.

"We sometimes hear that a guilty person has gone free because of some legal technicality, and we understandably feel frustrated when that happens. Now we have the opposite situation. A man who may well be innocent may die tomorrow — all because of those technicalities. This is much more than frustrating; it is tragic. It is unjust. And at a time when we are trying to convince the whole world that our way is best, it does not speak well of us. I will say only a little about the facts of the case, because you have other witnesses that know them better than I.

"But here is what I understand to be true. I understand that there is no physical evidence. No murder weapon. No fingerprints. No DNA.

"Just the testimony of a few frightened and confused people who were taken completely by surprise when a tragedy suddenly erupted — without warning — for just a few seconds — in the middle of the night. And now, the case against Mr. Davis, that rested on that testimony, is a shambles. I understand that there were nine key witnesses, seven of whom have recanted their testimony. The eighth witness has left the state and refuses to talk about the case. And the ninth cannot recant without confessing that he committed the murder. Indeed, some of the other recanting witnesses have now implicated him.

"You must surely know the evidence better than I. And you know the law better than I. But I know, with what we have learned since the original jury heard this case, that a reasonable jury today should have doubts — grave doubts — since we now know so much more than the original jury. I am sure the members of the original jury are fine people. And I am sure they tried to do the best they could with the tools they were given. But nobody ever gave them the tools to do the job right. Those tools were offered to the courts years later, but they said it was too late to use them.

"So now the tools are in your hands. Hands that are not bound by technicalities. And it is not too late to use the tools you have been given. But I am here now, because I could not stay away.

"If executing Troy Davis on the evidence we now have is the best our justice system can do, then that system is not worthy of the word justice. People of good faith can and do disagree about the death penalty. But all of us must certainly agree that before we carry out the ultimate penalty, we must be sure. The only thing I am sure of is that nobody can even come close to being sure that Troy Davis committed this crime. I am, frankly, shocked to think that we could execute anyone under these circumstances. And I ask you not to let that happen.

"Before I sit down, let me say a few words about a man who cannot be here today. I speak, of course, of the victim of this terrible crime, Officer Mark MacPhail. And I hope you will think of him too as you make your decision. Officer MacPhail's death was a senseless tragedy, and I am sure his loved ones still feel the pain of his loss. I pray for them and for Officer MacPhail today. And I ask you to do the same. For it is a terrible thing to be a victim of a violent crime.

"I know, because I am one. I was beaten senseless by a Coca-Cola crate when I arrived at the Greyhound bus station in Montgomery, Alabama as a Freedom Rider in 1961. I could easily have died. I was clubbed nearly to death a few years later on Bloody Sunday at the Edmund Pettis Bridge, and for awhile I looked death in the face, sure that I was about to see God. Indeed, of all the people in this room, I suspect that I am the only one who has any real idea of what Officer MacPhail felt in the last moments of his life.

"And I also think I know what he would say if he could speak to us today. He would tell us not to compound one tragedy with another. He would tell us not to make another man's family feel the pain that his family felt. He would tell us that his killer may still be at large. And he would tell us that, as an officer of the law, he wants our legal system to do what is right. That winning cases does not matter. That only justice matters. And that he does not want his legacy to be the death of an innocent man. As a fellow public servant, I believe I know what you should do. And as a man of faith, I am sure I know what God wants you to do. Do justice. Commute the sentence of Troy Anthony Davis. Thank you very much."

Andrew Speaker Sued in Canada

2007-07-13T07:46:00.000-07:00

"I am not some trust-fund baby, and there is nothing to go after," Andrew Speaker said.

Oh, but how wrong he is.

There are quite a few things worth going after, here. Not the least of which is holding this pompous, self-absorbed twit of a personal injury lawyer accountable for the harm he caused. He should be familiar with the concept of gross negligence. Now he's about to receive the advanced course.

Another thing worth going after is an apology. The people he exposed to what he thought was a uniformly-deadly strain of TB deserve at least this.

And, any money he happens to have is probably appropriate, too.

Troy Anthony Davis Execution Set for Next Week

2007-07-13T01:16:00.000-07:00

The execution of Troy Anthony Davis for the murder of Georgia policeman Mark Allen McPhail has been set to occur between 7/17 and 7/24. The execution warrant can be seen here.
In spite of claims that he committed two shootings in fairly rapid succession, Davis had no gunshot residue on his hands. The murder weapon was never recovered. There was no DNA, of course. Nothing links Davis to this crime other than the questionable testimony of 9 individuals. Seven of these people have recanted their testimony. And, of the remaining two witnesses, one is the man that many suspect actually committed the murder, and the other has only ever claimed that she saw the color of the shooter's clothes.
But, it's not likely that a court is going to hear about the evidence that was unavailable up until after Davis had exhausted his appeal in state courts.
Anyway, here's a link to additional information about Davis and the case against him from Amnesty International. And another from the National Coalition to Abolish the Death Penalty.
Raul Ruiz received a stay, baruch H-shem, perhaps Davis will as well.

The Details May Be Muddled, But One Thing is Quite Clear...

2007-07-04T00:38:00.000-07:00

This guy's stupid.

Not just garden-variety stupid, but
all-that-and-a-
bag-of-chips-stupid.

Not that stupidity in a criminal isn't something to be appreciated.

Robert / Raymond (depending on your news source: Fox says it's "Robert" and News 10 in Tampa Bay says it's Raymond--take your pick) Gomez, age 42 / 52, a registered sex offender (on this they agree...) had the brilliant idea to answer the door to his trailer (Space 30) at 4803 Hillsborough Ave, butt nekkid. For the cops. With a 15-year-old girl in his bed.

What would YOU do if you were a cop confronted with a nervous, nekkid sex-offender? You'd thank your lucky
stars and call it "Probable Cause." At least these guys did.

Allegedly, she was aware that he was a sex offender, and initially gave her age to police as 18. They smiled and nodded their way out the door (Well gawrsh! Nothin' seems amiss here, folks! Have a lovely day! Toodle-Ooo!) to run her particulars through the system and make sure she wasn't actually 18.

His particulars they'd seen enough of. Eeew.

For the record, and for the fact-checkers at Fox: The guy's name is Raymond Gomez. He's in the Florida Sex Offender Registry, and he's 52. His nominations for man-of-the-year were received in 2003 for "Lewd or lascivious molestation, victim under 12 years, offender 18 or older" F.S. 800.04(5)(b) and "Lewd / lascivious with a child under 16 years." F.S. 800.04. He was convicted in Hillsborough, Florida. Trust me, it wasn't hard to find.

Photo Courtesy of FDLE

Where it Comes to the Death Penalty, States Don't Have to Play Fair...

2007-07-03T19:19:00.001-07:00

Darrell Grayson sits on death row, most likely having committed heinous acts against an innocent elderly woman. But as long as the opportunity to examine ALL the evidence is being denied by the state of Alabama, no one will ever be certain.

No one can contest that Anna Laura Orr, age 86, and tiny at 5' 3" and 117 pounds, was brutally murdered in June of 1980. She was tied up, beaten, raped and a pillowcase placed over her head and taped in place. The persons responsible for the crime should be held accountable. But, whether Darrell Grayson, who had no prior criminal record, should be one of those, needs to be established once and for all.

There's an easy way to do this. There was a considerable amount of blood and semen found at the crime scene. A DNA test of that material would swiftly determine whether Grayson's confession and testimony were false and he was passed out, drunk, at another location when the murder occurred, or whether he's a brutal, vile bastard deserving of life imprisonment. (what...you thought I was going to say death?)

Although bloodstains were found on Grayson's shirt and were typed (Type O, consistent with the victim, the co-defendant, and about 45% of the U.S. population) there has been no DNA confirmation, even though, as the state pointed out when criticizing Grayson for not requesting it sooner, it had been available since 1986.

There were "negroid" hairs found at the scene, consistent with both Grayson and his co-defendant, and inconsistent with the victim, but also consistent with slightly less than 12 percent of the U.S. population in 1980, and with more than a million people in Alabama in that year, according to the U.S. Census.

The blood, urine and semen found at the scene were also impossible for the technology of the day to type.

There were no identifiable fingerprints recovered. The ballistics examiner testified that the police had not given him a gun that matched the bullets recovered from the crime scene.
While the victims rings were found in Grayson's wallet, and a hair consistent with hers, and inconsistent with Grayson's was recovered from his sock, it's also true that he had worked for her in the past, and had other opportunities to acquire them.

Grayson admitted to the murder in several inconsistent statements. He also admitted to having consumed several gallons of wine with his co-defendant, and having planned to burglarize the victim's house, as he knew where she kept her money.

While confessions tend to be regarded as damning evidence, let's not forget the case of the Central Park Jogger. Her alleged attackers confessed, too. All five of them. Those confessions were used to lock up five innocent men until DNA showed that they were innocent of the crime, and a single serial rapist had been the true perpetrator. Thank G-d that Trisha Meili lived. Thank G-d they weren't executed. Their innocence wasn't discovered until 2003, when the "Central Park Five" had served between 7 and 11 years in prison.

The key is in the DNA.

The courts have denied Grayson's request to have DNA testing done since he filed a Section 1983 action requesting it in 2002.

Most recently, in his appeal to the 11th Circuit, he was denied the opportunity to have the biological evidence DNA tested.

Grayson asserted Brady v. Maryland, which requires the prosecution to turn over to the defense potentially exculpatory evidence. The interpretation that the 11th Circuit's panel gave this is that Brady should apply only to trial, and the blood and hair evidence were both given at the trial phase. To me, it seems rather sneaky and underhanded to assert that even though the state has potentially exculpatory evidence, since someone has already been tried (obviously without the exculpatory evidence being considered--in this case because the technology to consider it hadn't become available yet) they have no obligation to hand it over if there's a question of actual innocence. Does this mean that a wrongful conviction is more valuable because of its finality than the actual innocence of someone about to be executed?

The 11th Circuit wrote: "Grayson has cited absolutely no authority for the proposition that Brady’s constitutional rule – i.e., the state’s disclosure obligation – extends beyond a defendant’s conviction." Grayson v. King, 460 F. 3d 1328, 1340-41 (11th Cir. 2006)

Uh, that would be because it's a simple matter that most of us understand that putting an innocent person to death, regardless of the timing of the disclosure of the evidence is, quite simply, wrong.

Grayson also asserts a footnote in Imbler v. Pachtman, 424 U.S. 409, 427 n.25, 96 S.Ct. 984, 993 n.25 (1976) that states that that “after a conviction the prosecutor . . . is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction.” How then, can it be reasonable for the prosecution to deliberately avoid knowing whether evidence in their possession is exculpatory?

Grayson argues Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989 (1987), a case in which it was decided that a defendant who had been denied records during his trial was entitled to these records after the final decision, to ensure that the defendant had received a fair trial. The 11th Circuit distinguished the cases on the grounds that "Ritchie concerned the pretrial obligation to disclose to the trial court for review known, existing evidence to ensure that the defendant received a fair trial. The time for fair trial arguments has long since passed in this case. Nothing in Ritchie suggests that a defendant has a due process right, twenty years after receiving an indisputably fair trial at which the evidence in question was presented, to seek access to and further testing on evidence that was available at trial." Grayson, 460 F. 3d 1328 at 1344.

While it is correct that the time for "fair trial arguments has passed," as the 11th Circuit asserts, how is it possible for the time for the introduction of actual-innocence evidence to have passed? How is a trial that took place before the current technology existed better than using the readily-available technology that can prevent innocent men from being executed? Unless it's just that prosecutors want to preserve their conviction rates, and police their clearance rates, at any cost. I understand the rationale behind the need for closure and finality in cases, and why there must be a firm end for appeals, but I fail to see the societal value of a case like this one ending in the death of a man who may be innocent.

The 11th Circuit attempts to support its argument with the 4th Circuit Court's findings in Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002). By the 11th Circuit's own statements, "Harvey received a fair trial and was given the opportunity to test the DNA evidence at trial using the best technology available at the time." Grayson has never had this opportunity, and the technology was not available at the time he was tried in 1982.

Unless it's just really late and I'm not reading straight, the 4th Circuit court reversed the Harvey decision prior to the issuance of the 11th Circuit's decision in Grayson. Hmm.

The 11th Circuit cites the Ohio Adult Parole Authority v. Woodward, 523 U.S. 272, 118 S. Ct. 1244 (1998) in which then-Chief Justice Rehnquist wrote: that an “individual’s interest in release or commutation is indistinguishable from the initial resistance to being confined, and that interest has already been extinguished by the conviction and sentence.” Id. at 280, 118 S. Ct. at 1249 (quotation marks and citations omitted). While the individual's interest in release or commutation of his sentence is extinguished by conviction and sentencing, there is a tremendous difference between "confinement" and "execution" and I believe the interest in remaining alive trumps the interest in remaining unconfined. Those confined can be released. Those dead...Well, not so much.

In the Ohio Adult Parole Authority case, id, Justice O'Connor wrote in her concurrence (with which 3 other justices joined) that “it is incorrect . . . to say that a prisoner has been deprived of all interest in his life before his execution”; rather, “some minimal procedural safeguards apply to clemency proceedings.” Id. at 289, 118 S. Ct. at 1253-54.

DNA testing that would confirm or deny that the biological material at the scene belonged to Grayson strikes me as a minimal procedural safeguard to ensure that an innocent man isn't put to death. According to my count on the Death Penalty Information Center's "Innocence Cases" lists, since 1993 when Kirk Bloodsworth was found to be innocent of the rape and murder of a young girl, 13 more of the 74 death row inmates exonerated since then have been exonerated by DNA testing. That, for you math majors out there, is nearly 20%. How many more are there who, like Grayson, can't get DNA testing?

The 11th Circuit considers the test laid out in Mathews v. Eldridge, and grudgingly admits that perhaps Grayson does have a residual liberty interest in avoiding execution (the first element of Mathews). But, they state that "the second Mathews factor – “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards” – weighs heavily against Grayson’s claim ... As to the procedures used, Grayson already received a fair trial, a direct appeal, and both state and federal habeas proceedings and appeals. His liberty interest in his life was already litigated
extensively for twenty years." All the statements that the 11th Circuit makes are true. However, denying Grayson the opportunity to show his innocence by denying him the opportunity for DNA testing (an additional procedural safeguard, no?) has a high potential to result in deprivation of his interest in remaining alive. Whether or not this has been litigated within an inch of it's life for 20 years, the State of Alabama has been refusing to consider newly available evidence for the past 5.

The third element of Mathews v. Eldridge probably goes in the state's favor--they have evidenced a strong interest in making this case "final." So, we'll give them that. But, since Grayson has a pretty powerful liberty interest--staying alive is about as fundamental a right as a human has-- and since a pretty straightforward, inexpensive, simple "additional procedural safeguard" would effectively protect it, I think the scale is tipped in Grayson's favor.

And why aren't we testing all those on the nation's death rows who had biological evidence used against them in the pre-DNA days? Are we afraid of being wrong? I suppose, the states that deny testing can continue to enjoy the fact that dead men (whose DNA goes with them to the grave) tell no tales.

The 11th Circuit winds up its decision by asserting that Grayson has "enjoyed extensive judicial process" in the 20 years since his conviction. Grayson, 460 F. 3d 1328 at 53.

An extensive, and yet, incomplete and unfair judicial process.

Where's the justice in that?

Andrew Speaker Found to Have Less-Dangerous Form of TB

2007-07-03T13:33:00.000-07:00

Well, it's good news for the people who were exposed to Andrew Speaker. He's been found to have the less dangerous Multi-Drug Resistant Tuberculosis (MDR TB). Dangerous, yes, but not as almost-inevitably-fatal as the Extremely Drug Resistant TB that he was thought to have. And, the CDC is now saying that he was likely not contagious when he was traveling.

That's great. Glad to know it. Everyone that he exposed can breathe a sigh of relief.

Too bad Andrew Speaker didn't know this for certain when he decided to fly TO Europe for his wedding, against the advice of his physicians, and to RETURN to the U.S. not only against medical advice, but to enter illegally. His awareness of the illegality of his entrance was shown by the circuitous manner in which he re-entered. Any argument he may have that he wasn't aware of the seriousness of the disease is kind of shot to hell by his statement that he was afraid he would die in Italy. So all the lucky folks with him on the plane should have the opportunity to die as well?

And some idiot ignored direct orders and let him in at the Canadian border. The result of that bit of criminal stupidity was that the border guard took early retirement.

And no one has seen fit to arrest Speaker or charge him with any one of the variety of criminal charges that he so richly deserves. He was briefly placed in federal quarantine, but I think I'd like to see him in a different variety of federal "quarantine."

While I can understand the level of fear that must have existed for him after receiving a diagnosis of this kind, I don't think that it excuses or even justifies the decisions he made.
Personal responsibility and the greater good were irrelevant to him. He had no problem, apparently, with potentially sacrificing the lives of all of those who came in contact with him when he chose to fly by commercial airline--recirculated air, close quarters--a great way to ensure that if he WAS contagious, the maximum number of people would be exposed.

He willingly endangered thousands of people to save his own skin.

What a nice guy.

Now, where are the legal consequences? This merits more than a slap on the wrist. Even if the disease he *thought* he was exposing his fellow fliers to has fortunately turned out to be a milder, treatable form, should we ignore his malicious, reckless and generally reprehensible behavior?

I feel sorry for him. He's got an awful disease. So do the people who are charged with knowingly exposing their sexual partners to HIV. They're rightfully prosecuted, as Mr. Speaker should be.

For some small measure of cold comfort, he faces criminal charges in Czechoslovakia, filed by the Czech state run airline CSA. Let's hope that the U.S. doesn't give the guy a free pass. Of course, if they were able to extradite him, he could face 3 years in prison in Czechoslovakia...

There are all kinds of appropriate charges, depending on who gets jurisdiction (the feds, presumably, but I'm sure that there's at least one state with the option of charging him as well...) Reckless endangerment, some species of attempted homicide... Something.

Lord knows there should be some good civil suits coming his way, as well.

I'm glad that there's a chance for the antibiotics to work, and that Speaker has some new options.

That should make him less of a risk to those who have to deal with him in prison.

Execution set for Troy Davis

2007-07-03T09:32:00.000-07:00

Our justice system is badly broken, and yet we keep grinding the poor and the damaged through the mill of capital punishment.

Oh, if you hadn't guessed, I'm opposed to the death penalty.

Troy Anthony Davis has a date with the death chamber on July 13. SCOTUS just denied review of his case a few days ago, ending his final appeal.

Davis was convicted of repeatedly shooting police officer Mark Allen McPhail when McPhail responded to a call outside a Greyhound Bus terminal in Savannah, Georgia. McPhail was dead before he had a chance to draw his weapon.

Nine eye witnesses initially identified Davis as the shooter. Six of them have recanted their original statements, consistently asserting that they were threatened by police that they would be charged as accomplices, or simply badgered endlessly. One of the non-recanting witnesses is the man who has been identified repeatedly by these same eye-witnesses as the actual shooter. Another witness had only the color of the shooters' clothes to offer. I haven't heard much about the third.

There was no physical evidence to link Davis to the shooting. He had no gunshot residue on his hands, and the weapon was never recovered.

The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) has effectively cut off Davis' appeals. The AEDPA was intended to cut down on the volume of death penalty appeals, called "interminable" by its proponents.

Gotta love guys like Orrin Hatch (R-Utah) who so obviously miss the point of appeals. The National Coalition to Abolish the Death Penalty (NCADP) quotes him as saying ""At long last . . . we are about to curb these endless, frivolous appeals of death sentences."

Frivolous appeals of death sentences? I would think that was an oxymoron...
Arguing that prison pillows aren't soft enough = frivolous.
Inmates not getting enough television hours = frivolous.
Don't kill me because I was denied due process / had ineffective assistance of counsel / discovered new evidence = Intrinsically NOT frivolous.
Maybe I'm just thinkin' that measure-twice-cut-once is a good rule of thumb to apply to executions. It's really hard to undo your mistakes.

Just my way of thinking.

I hope and pray that Hatch is never tagged to replace any member of the Supreme Court (some of us were holding our breath during the nomination process...) or to serve as the U.S. Attorney General--something that has been mentioned in the recent past.

Prosecutors successfully argued that the new evidence that Davis presented could not be considered because it wasn't presented while his appeal was still being considered by the state courts. A federal judge in Savannah agreed, determining that Davis did not offer the evidence during the period it would have been permitted under the AEDPA.

Basically, even though there's now a considerable amount of exculpatory evidence, Davis is S.O.L. According to his lawyers, five out of the six recanting witnesses did not do so until after Davis' state appeals had already been exhausted, and that they lacked funding to locate these key witnesses any sooner than they did.

According the the NCADP, Georgia is the sole state that refuses to guarantee death row inmates representation at crucial phases of the appeal. Davis was more or less set adrift to muddle his way through seeking appellate relief in Georgia's courts. The legal aid service that represented him during this time lost federal funding, and Georgia doesn't find it necessary to appoint or pay for a defense attorney to represent inmates like Davis.

So, even though there's evidence that arguably gives more than reasonable doubt for Davis' innocence, he'll take the long walk to the state's death chamber. Expeditious executions apparently are more important than the possible innocence of the man about to be killed.

Happy Independence Day.

Marineau v. Guiles Denied SCOTUS Review...

2007-07-02T13:31:00.000-07:00

Darn.

What a missed opportunity. This was a chance for a few steps BACK from the decision in Bong Hits 4 Jesus.

Here's the story: Zachary Guiles, a 13-year old middle-schooler regularly wore a t-shirt to school with President Bush portrayed as a cocaine snorting, martini-swilling chicken hawk and touting his "Word Domination Tour."

The middle school had a fairly reasonably (if overbroad) clause in its dress code that specifically prohibited wearing clothing that depicted alcohol or drugs. A classmate and her mother complained about the shirt (can't find the substance of their complaint--I suspect it wasn't outrage over the depiction of a martini glass or the lines of cocaine that triggered their ire...)

Guiles was told to cover the references to alcohol and drugs, which he did, bless his bloomin' little heart, by covering them with duct-tape. And then he got the last word in by writing "Censored" in black marker on one of the strips of tape.

Okay, maybe it's just the mother in me, but isn't ANYONE else overjoyed that a 13 year-old is
politically aware? Unlike many kids (some of my exceedingly close acquaintance, no names will be used to protect the ignorant...) he has an INTEREST! He's AWARE!

Fer cryin' out loud, I'm glad when some of the kiddos I know recognize that this country is headed by a president, and even take a tentative guess that the guy's name is Bush.

But, anyway. The school's dress code simply banned any depiction of drugs or alcohol. There were no exceptions for "anti" drug and alcohol messages, or, as in this case, political commentary. I doubt that anyone would have wanted to ban this shirt if it had depicted drugs or alcohol in our society's preferred light--"Just Say No." Anti-Drug posters feature depictions of drugs, but I doubt many of the anti-drug folks would argue that they were inappropriate for display in schools. The message is one they agree with, so it's acceptable.

And, the shirt certainly wasn't pro-drug... It was equating the t-shirt creator's issues with Bush with his previous substance use. Thinkin' that with that take on the President, it probably wasn't intended to show drugs as being a positive thing. ("Hey kids, snort coke so you can be cool like George W. Bush!")

And, on top of that, since when has the political aspect of our national drug control policies died? Last I checked, that was still a live debate: Medical marijuana, legalization, decriminalization, etc.

The bottom line is whether this kid would have been told to change his shirt if someone hadn't found the jabs at President Bush offensive.

Since I'm an old fashioned kinda grrl, I would advocate school uniforms rather than dress codes which are left open to misuse, as I believe this one was.

The rules that accompany uniforms can be very simple --"This is what we wear here, and you may not alter it in any way. You are however, free to be politically conscious, argue that marijuana should be legal or that drug use should carry the death penalty, and insult or praise the president as you see fit. Feel free to do this in the classroom. Debate, discuss, dissent... but if you trim a sixteenth of an inch off the hem of that skirt, kiddo, you're going to be in big trouble!"

ACLU Files Suit in Federal Court to Overturn "Bush Lied" T-Shirt Laws

2007-06-29T15:37:00.000-07:00

So, a while back, some guy in my state, Dan Frazier, decided to put a twist on the "Bush Lied, People Died" message by adding the names of troops killed in Iraq as the background to the caption "Bush Lied, They Died" t-shirt. (I guess he did a bumper sticker first, and no one objected...) Not surprisingly, the families of the men and women named on the shirt found it offensive. They did what reasonable people do and they objected vociferously.

Their response probably SHOULD have been a civil suit.The names of the soldiers are the property of the estate, yadda, yadda...

And then, at least one aggrieved parent, Judy Vincent, did something a little misguided, but, really understandable. She lobbied for legislation to make using the name or likeness of a deceased soldier, without permission and subject to a number of exceptions, a misdemeanor. *sigh*

And then, Oklahoma legislators did something REALLY dumb. And not at all understandable (except when taken in the context of politicians wanting to be re-elected...). They passed the damn law. *SIGH* So did Louisiana, Arizona (just about a year ago...) and Texas.

So, it's now a criminal offense. A misdemeanor, but a CRIMINAL offense nonetheless.

The ACLU filed suit (today, I think...) asserting that these laws are a violation of the First Amendment.

This case should get interesting pretty quickly... There are quite a few issues that will come into play...

Rep. Jonathan Paton, R-Tucson, who backed the measure, believes that because Frazier is selling his shirts for a profit means it is not constitutionally protected political speech.

Really? Hmm. What if he GAVE the shirts away. Would the speech be MORE political if you removed the tacky profit motive?

Paton goes on to compare this to the use of an entertainer's name and likeness in a commercial enterprise.

I'm thinkin' that his comparison of this use of names--the sheer number of names is what Frazier is using to make his point--to the use of Britney Spears name (his choice of bubblegum pop-singers, not mine) to sell merchandise is a little bit silly.

No one is buying this shirt because Pat Tillman's name, or anyone else's is on there somewhere. They're buying it for the impact made by the names, not the names themselves. Whereas, if someone buys a Britney shirt, it's specifically because it's Britney (unless that hypothetical individual has suddenly found themselves covered in fresh, warm vomit in the middle of nowhere, and the only t-shirt the gas station has for sale is one with Brit's mug plastered on it, and after lengthy consideration they decide Britney is slightly more bearable than puke... But, I digress.)

The monetary issue is what the people defending this bill seem to be trying to get it to turn on... That and the fact that a good number of people find this exploitative, cheap and dirty. But the bill in Arizona makes the profit the determining factor for banning the use of the names. (I'm lazy. I didn't go dig up the laws for every state. You've got Google. Use it.) Then it excepts books, plays, news reports, film, etc.

Wait. Authors write for free? Stupid me. Here I thought folks wrote books and articles and sought out publishers at least in part to pay the bills. I forgot. Authors do it solely for the sake of their noble art. (and they also sup on dew and poop vanilla ice cream...)

Plays are written and produced by people who are desperately hoping that their work doesn't ever make it anywhere near Broadway?

Profit motive aside: The names are public domain, they're not singling individuals out in order to profit from their fame, the names themselves have little or no monetary value, there's no defamation, it's not advertising, it's political speech and the restriction is entirely content based... In my humble opinion, I think these laws are going to go down in flames. At least, I sincerely hope they are. Out of respect for the men and women who died fighting for others' freedom, perhaps we should think twice about crippling free speech in their names...

London Car Bombing Attempt Foiled

2007-06-29T13:09:00.000-07:00

Apparently it was just confirmed by London police that the two car-bombs in London were part of a single plot.

Per Fox News, they were to be detonated by cellular phone, and both were similarly constructed. CNN is saying that the bombs were "potentially viable" and constructed with gas canisters and fuel (the first contained approximately 50 gallons of gasoline or similar fuel in canisters, don't know the details on the second yet, but they're saying very similarly constructed) and contained nails. For those who are fortunate enough not to know why nails would be included in a bomb, they're intended as projectiles. Think: pointy bits of metal hurtling through the air and their effect on human flesh and bone...

Of course, the assumption (not yet articulated, but certainly evident through the 9/11, "chatter" and similar comments and references) is that this is going to be attributed to someone carrying out their interpretation of jihad. Okay, so the odds are in favor of that... Well. Never mind. Neil Cavuto and his guest Michael-Something just pinned the tail on an Al Quaeda-offshoot.

Interesting how Cavuto and another guest (sorry...I snap out of a bar-study-induced trance when statements catch my attention, I don't always catch guest names...) brought in a poll that said that 40% of British Muslims responded positively to the idea of living under Sharia (Those are my words, the phrasing given by Cavuto's guest was "wanted to live under Sharia" I haven't read the study--they didn't give a citation that I caught, so not sure of where it's from or how the question was phrased. Maybe it's verbatim. Maybe it's not.) And another 40% condemned the 9/11 attacks on America. I'm not sure how the first bit of info--a desire to live under Sharia--necessarily ties in to supporting terrorism. Lies, damned lies, and statistics...

Wonder if this has anything to do with Brown-replacing-Blair? Or whether it's going to be Salman Rushdie's knighthood taking the blame? Or something entirely different (someone's pissed that young Will and his girlfriend have reconciled?)

Suppose we'll see over the next few days...

Nogales Border Tunnel Largest Ever Found

2007-06-29T08:32:00.001-07:00

Nogales is pretty close to my neck of the woods, so this caught my attention.

Or, maybe it caught my attention since I've lost count of the number of border tunnels that have been discovered in recent years. And the fact that the headlines always seem to trumpet things like "longest," "largest," or "most sophisticated."

For comparison purposes:

Contending for the "Most Sophisticated Illegal Subterranean U.S. Entrance"...

Contestant Number 1:
"A 5-foot-tall passageway with electric and ventilation systems and security cameras leading from a Mexicali residence to a house just across the border in Calexico." This tunnel also had a "tile floor, wooden walls, light sockets, numerous tubes and a generator. There were paintbrushes, buckets, ladders and at least two makeshift altars adorned with crosses, flowers and portraits of saints." (San Diego Union Tribune, 3/1/2005.)

Contestant Number 2:
"At least 60 feet below U.S. soil, authorities found a tunnel floor lined with cement, lights that ran down one of the hard soil walls and air piped down from the surface, he said. An adult could stand in the 5-foot-high shaft." This tunnel ran from a spot near the Tijuana, MX airport to a San Diego warehouse about 2400 feet away. The tunnel also featured "A 6-by-10-foot cement shaft equipped with a pulley [that] dropped about 75 feet to the tunnel. According to the BBC article which lists this as one of the longest, it also has groundwater pumping. (SF Gate, 1/26/2006)

Contestant #3:
"The tunnel is about 110 meters long running from British Columbia, Canada, into Washington State, according to a press release from U.S. Immigration and Customs Enforcement (ICE). A Quonset hut hid the entrance on the Canadian side, and the American entrance was beneath the floor of a house in Lynden, Washington." Features of this tunnel included reinforcement with iron rebar and 2 x 6 wood supports, and it stretched about 360 feet long at a depth of between three and ten feet. (U.S. Department of State's Bureau of International Information Programs, 7/21/2005)

And, finally, Contestant #4:
These guys ran a drive-through operation... "Beneath the slot was a "sophisticated tunnel" with lights, plastic sheeting and bracing materials to keep it from caving in, Bauman said. "It looks like they would crawl through the tunnel with a bundle of marijuana, go to the very end where they could open this concrete slot, slide the bundle through, and the person in the vehicle would pick it up through a hole in the vehicle," Bauman said." Maybe not as nice as the tile and ventilation that some of the others have featured, but sliding bales of marijuana up through a slot into a waiting truck is fairly clever... (Channel 10, San Diego, CA, 4/24/2003)

For "Longest Underground Illegal Gateway to the U.S."

Contestant #1:
Also contending for "Most Sophisticated..." "The tunnel runs 720m (2,400ft) between two industrial warehouses straddling the border. Officials discovered about two tons of marijuana while exploring the tunnel." (BBC News, 1/27/2006) 2400 feet is nearly 1/2 mile (a mile is 5280 feet, half a mile is, of course, 2640 feet.)

Contestant #2:
Unsubstantiated: 3600 feet, 5 feet tall, 3.5 feet wide, running from Tijuana, MX to Otay Mesa, CA. I'm suspicious about this report, as many of the features sound exactly like a certain 2400 foot tunnel, including 4000 pounds of marijuana and discovery on a Wednesday night. Hmm. Here's the link. See for yourselves. (Diggers Realm, 2006)

And now... The Nogales Tunnel.

The "LARGEST EVER FOUND" per Court TV's report this morning...doesn't look like it would even make the finals, at least based on my brief and humble review of news articles on border tunnels...

There's a press conference on this tunnel coming up this morning (it was called "significant" by the nearest metropolitan papers' joint website (The Arizona Star and the Tucson Citizen's AZStarnet) but the local reports are saying that it's only about 300 feet long, and no one out here has claimed "LARGEST EVER FOUND"

I guess we'll see. Maybe they meant the largest ever found in Nogales?

SCOTUS Will Hear Gitmo Detention Cases

2007-06-29T08:03:00.000-07:00

SCOTUS Reconsiders Guantanamo Bay Detainee Petitions for Federal Review

In April SCOTUS declined to hear petitions by Guantanamo Bay inmates for federal court review of their indefinite detentions. Today, however, without explanation, they overturned their earlier decision, consolidated the cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196), granted review of the issue and set an hour for the oral arguments.

Wow.

Four justices must vote to hear a case when it is first presented.
Five justices have to agree when a petition is presented again.
In this case, three justices voted to hear the case at its first presentation, with Kennedy and Stevens not finding the case sufficiently ripe as the detainees had not yet sought legal relief through the D.C. Circuit Court. The D.C. Circuit has the power, under the Detainee Treatment Act, to grant a limited review of the military decision to continue to detain "enemy combatants."

What happened since April isn't clear (and I'm too lazy to go do the digging that might result in finding out...) What we know is that something recaptured the attention of at least two justices (presumably Kennedy and Stevens). And, on top of that, under SCOTUS's rules, for a rehearing to be granted requires a change in "intervening circumstances of a substantial or controlling effect" or counsel's showing of "substantial grounds not previously presented."

School Case Opinions Released

2007-06-28T10:09:00.000-07:00

PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DISTRICT NO. 1 et al.

I haven't had the time to read it yet...It looks dense and chewy. But, here's a link to the full text of the opinion, brought to you by the great guys over at Cornell University School of Law.

Roberts wrote the opinion, Kennedy and Thomas wrote concurring opinions and Stevens and Breyer gave dissents.

SCOTUS: Executing the Delusional is Cruel and Unusual....

2007-06-28T07:36:00.001-07:00

SCOTUS rules in Panetti v. Quarterman:

Another 5:4 decision with the justices divided along the expected lines.
Breyer, Souter, Stevens and Ginsburg concurred with Kennedy to say that it is a violation of the 8th Amendment to execute someone who is so delusional that, while they understand that they're being executed and for what, they have a delusional belief as to why. The 5th Circuit Court, said the majority, had used too restrictive a standard of mental competency in upholding a death sentence for a man whose delusions are said to keep him from understanding why he would be executed.

I think the biggest question here is how this case got this far...

Panetti, for those unfamiliar with the story, murdered his in-laws. He shaved his head, donned camouflage and armed himself with a deer rifle and a sawed-off shotgun then shot Joe and Amanda Alvarado at close range in their home. His recently estranged wife, and their daughter were present at the murder, and he held them briefly hostage at the boarding house where he was living.

Prior to this, Panetti had had a long and colorful mental health history. He'd been hospitalized at least a dozen times in the decade leading up to the offense for a true fruit-salad of disorders: schizophrenia, schizoaffective disorder, bipolar disorder, depression, psychosis, auditory hallucinations, and delusions of persecution and grandiosity. The evidence strongly suggests that he was non-compliant with his medications.

And, when the question of his competence to stand trial was raised and he was examined by Dr. E. Lee Simes, he was clearly, uh, lacking.

According to Dr. Simes report, he did not know who the President was, had some "looseness and tangentiality in his thought processes"; admitted to both auditory and visual hallucinations, which included seeing Jesus in his jail cell; "related chronic delusions marked by religiosity"; appeared to have “an odd fragmentation of his personality in describing himself as several different people;” and suffered from “obvious mental difficulties.” And, still, Dr. Simes concluded that in the great State of Texas, he was competent to stand trial.

A competency hearing was held, in which Panetti's attorney stated that his client would become delusional and unresponsive to questions when he was under stress, and that he'd never been able to have a meaningful and rational conversation with his client about the legal issues in the case. Another forensic psychiatrist, Dr. Richard Coons, who had also evaluated Panetti, was brought in to testify, and he shared his finding that Panetti suffered from schizophrenia, and related some of Panetti's ramblings. His description of the defendant's mental state was eloquent: [Mr. Panetti’s mind] “saddles up and rides off in all directions.” Coons said definitively that Panetti was not malingering, as his mental health records were consistent dating back to the 1980's.

A jury somehow found the actively hallucinating, delusional Panetti competent to stand trial.

And then, the court found that he was competent to represent himself over the objections of his attorneys. He proceeded to issue over 200 subpoenas to persons including John F. Kennedy, the Pope and Jesus. (Although, as he told the court, he released Kennedy and the Pope, although Jesus was there with him, and hadn't needed to be subpoenaed...)

Panetti's take on the possibility of receiving the death penalty, straight from the trial transcript:
"The death penalty doesn’t scare me, sure but not much. Be killed, power line, when I was a kid. I’ve got my Injun beliefs as a shaman. I sent the buffalo horn to my sister. Adjustment, Jesus wrote. I was born in the North woods in a reservation hospital and my granddad was a justice of the peace and he sobered up the doctor and the doctor was half sobered and they delivered me and my mom had a bad sickness in her milk and they wondered why I wasn’t dead, and a lot of beatings I took from the kids that show me had prejudice, which I don’t have any prejudice, and they said this about me in the newspapers in the beginning, but I don’t love Injuns and Mexicano, and Mexicano know, but I suffered a lot of reverse prejudice from Colored people, which is rare, darn rare, but I was named “He who doesn’t cry” because I didn’t cry when I should have, and I must admit, though, in Gillespie County Jail when I was in my little suicide box where there was an old boy committed suicide, I went through about a week o pretty much scuba diver’s tears; although, I don’t scuba."

Fish. Barrel. Shotgun. Inevitable result.

Panetti continued to be actively mentally ill the entire time he was on death row, maintaining the fixed religious delusions that had haunted him since the 80's.

Attempts to appeal Panetti's conviction on grounds that he was not fit to stand trial or serve as his own defense counsel lasted more than ten years. By 2003, his lawyers had exhausted all appeal options and February 5, 2004 was set as the date of execution.

The current phase of Panetti's legal proceedings began with a 2004 motion asserting that Ford v. Wainwright prohibits Panetti's execution.

In Ford v. Wainright, the majority held that the Eighth Amendment barred execution of the insane. In addition, the opinion stated, "any procedure that precludes the prisoner or his counsel from presenting material relevant to his sanity or bars consideration of that material by the fact finder is necessarily inadequate."

In short, Panetti understood that the state intended to put him to death, and he understood that the reason given by the state was his murder of his in-laws. However, he maintained the belief that his in-laws were killed by "Sarge" and that he was put on death row to "preach the Gospel to saveother inmates," and that “the forces of evil, demons, devils” have been conspiring for years to kill him and put an end to his preaching of the word of G-d.

He was interviewed by a number of mental health professionals attempting to determine whether he was competent to be executed. Two psychiatrists, apparently ignoring his unblemished record of semi-coherent, religion-based answers and refusing to tell Panetti whether or not they believed in Jesus, decided that he was being deliberately uncooperative, and while he didn't understand why he was going to be executed by the state, he was CAPABLE of understanding.

Another forensic psychiatrist, Dr. Mary Anderson, believed that Panetti’s refusal to cooperate with the evaluation was the result of deliberate, conscious choice rather than the product of mental illness. She refused to conclude that Mr. Panetti suffered from schizophrenia, because she did not think that his mental illness was relevant to the competency determination.
(How convenient! A psychiatrist who'll also make legal determinations about the relevance of evidence so the judge doesn't have to...)

The Fifth Circuit Court of Appeals ruled that to satisfy the 8th Amendment all that was necessary was for the defendant to be aware of the reason that the state was giving for his execution. How they tortured their logic around Ford v. Wainright to arrive at this conclusion is beyond me... Powell, in his concurrence wrote ""If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied ... I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it."

Perhaps we need to institute a reading-comprehension test as a prerequisite to sitting on the federal appellate bench... This is what the 5th Circuit wrote: ""Justice Powell did not state that a prisoner must 'rationally understand' the reason for his execution, only that he must be 'aware' of it."

Um... Did they miss the parts that read: "perceives the connection between his crime and his punishment"and "why they are to suffer it?" Hmmm. Maybe I'm hallucinating. Seeing things...

Bong Hits 4 Jesus!

2007-06-27T22:00:00.000-07:00

SCOTUS Says No to Bong Hits 4 Jesus... Content-Based Restriction on School Speech Upheld

What were they thinking?

"It was reasonable for (the principal) to conclude that the banner promoted illegal drug use-- and that failing to act would send a powerful message to the students in her charge," Chief Justice John Roberts wrote for the majority.

Yeah. The powerful message that if you're a student, and anywhere near your school when your classmates happen to be around, the First Amendment doesn't apply to YOU.

From Scalia and Thomas I expect this kind of garbage--Scalia is a moralizer, parading around in the costume of a strict constructionist. Thomas almost invariably follows Scalia since Rehnquist died. From Roberts and Alito it doesn't especially surprise me. But KENNEDY? BREYER? From them I expect at LEAST a stab at legal reasoning, something more than creating a special exception to the First Amendment if the topic happens to be our society's favorite bugaboo--drugs.

I think Stevens said it beautifully: "This case began with a silly nonsensical banner, [and] ends with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, so long as someone could perceive that speech to contain a latent pro-drug message."

Guess they'd better cancel Speech and Debate, since anyone taking the pro-legalization stance can be punished if school administrators happen to disagree...

McDonalds Coffee Case

2007-06-27T20:01:00.000-07:00

Although this case hasn't been in the news lately, I did just run into a couple of misinformed rants (and, along with those, a couple of downright stupid and mean-spirited ones) on this blog.

So, here goes. My rant, more or less as posted in response on the other blog...

The woman burned by the McDonald's coffee, Stella Liebeck, has really received a bad rap... Would you expect 3rd degree burns from a cup of coffee? I wouldn't. Be honest. Neither would you.

My understanding from reading the case in Torts class (and, to be honest, again at the 'Lectric Law Library when I decided that a rant was in order...) is that she received 3rd degree, full-thickness burns over her groin. Not first--pain, redness and swelling. Not second--pain, redness, blistering. But THIRD: This type of burn destroys the outer layer of skin (epidermis) and the entire layer beneath (or dermis). Typically this type of burn will not heal on its own. Tissue is destroyed, blood supply to that tissue is destroyed and the damage is very severe. If you're not sure I'm being accurate, or that this type of burn can be caused by a liquid, here's a simple explanation from the University of Michigan.

Expert testimony was that this type of burn was likely to occur in 2-7 seconds when the liquid was 180 degrees--the coolest that the coffee in this case was when it was served. The victim was 79 years old. She was hospitalized for 8 days, had to undergo debridement (the removal of dead tissue--excruciatingly painful...) and skin grafts. These were very serious burns.

Also, for the record, she wasn't the driver of the car, she was the passenger. Her son was driving, and he had *stopped* the car to allow his mother to put cream or sugar in her coffee. The coffee spilled over her lap.

McDonalds made the choice to keep their coffee at 185, because it kept costs down. They could sell lower quality coffee, and hotter coffee resulted in fewer refills. In light of the danger of keeping their coffee between 180 and 190 degrees, they had considered redesigning their cups to make them less likely to tip, putting warnings on the cups and keeping their coffee at a lower temperature. All of these were deemed more expensive than simply settling workers comp and injury claims.

And, for comparison, for those of you who are contemplating your morning Starbucks, their coffee, like nearly every cup of coffee you're likely to purchase, is served at approximately 140 degrees.

McDonalds corporation was aware of approximately 700 other similar injuries (yes, including other 3rd degree burns...) and decided it was cheaper not to change their practices.

Now, exactly where does Ms. Liebeck start to look like an idiot? Apparently I've missed that part...

Ms. Liebeck EXTREMELY reasonably offered to settle for the cost of her medical bills--roughly $20,000-- to avoid litigation. McDonalds offered her $800. Wow. Anyone been to the hospital lately? That wouldn't even cover the ambulance ride. At least not the last time that I was transported by ambulance ($1200, mostly covered by my medical insurance). The ER bill was close to twice that. And my issues were far LESS complicated than third-degree burns over the genitalia.

Oh yeah, she also asked for mediation as an alternative to litigation. McDonald's refused.
Even the trial judge commented on the extreme callousness of McDonald's corporation.

While she originally received a verdict from the jury of the value of two days worth of McDonalds coffee sales--not total revenue--COFFEE sales, the verdict was reduced to under $600,000.

Now, lay the hell off of Stella Liebeck and go after the GENUINELY frivolous suits!

Like the @-hole who attempted to sue over his allegedly missing pants to the tune of $56 million... But, I'll save that for another time.

Man Shoots Rock-Throwing Third Grader

2007-06-27T15:18:00.000-07:00

Arkansas Man Irritated by Rock Throwing Kids Shoots, Kills Boy, 9
SCOTUS Expected to Rule Tomorrow on Constitutionality of Executions of the Mentally Ill

Jonathan Watts, 50, shot and killed Demotric Moore, 9, Monday, after the boy threw rocks at his house. Questions have already been raised regarding whether Watts' is mentally ill.

Fortunately for Mr. Watts, if he is mentally ill, SCOTUS will be probably be issuing a decision tomorrow as to whether it's a violation of the 8th Amendment to execute the mentally ill.
Then, of course, if it's unconstitutional to execute them, there'll have to be a definition of "mentally ill." Let's not forget that homosexuality was a mental illness until 1973...

Not that there's any guarantee that Mr. Watts would be a candidate for the death penalty in the first place, as this killing doesn't seem to have any of the features of a "good" death penalty case. There was no apparent premeditation, no particularly heinous aspects of the crime... The only factor (and I'm no expert in the death penalty) would be the age of the victim. But, there's also not a lot of consistency in how the death penalty is applied, and what makes an offense death-penalty eligible.

Since the change in the composition of the court, I'm not holding my breath that they're going to find that execution of the mentally ill violates the 8th Amendment.

It seems like Alito and Roberts have formed a pretty solid voting block, and Scalia and Thomas probably aren't going to stray very far from them. Souter, Breyer, Ginsburg and Stevens will probably stick together on the side of execution of the mentally ill being cruel and unusual. Kennedy's our last remaining swing vote now that Sandra Day O'Connor's gone.

I think we're going to be in trouble if anything should happen to Justice Stevens during the current administration...

Bobby Cutts Really NOT a Bad Guy...

2007-06-27T15:09:00.000-07:00

Even though he was married, and fathered three children with two different women outside that marriage. (And his wife is just NOW getting around to getting legally free of him?)

In spite of the fact that his 9 year-old daughter said he threatened her, hurt her physically, and made sexually inappropriate comments to her.

Even though he appears to have murdered the 26 year-old mother of his 2 year-old son, just before she was due to deliver a baby girl she'd already named "Chloe."

Even though he appears to have murdered little Chloe.

His stepmom thinks he's not bad...Just a little bit misunderstood.

"It's very hard to accept," said Barbara Cutts, 46, a nurse's aide. "A lot of people are looking at him like a bad person, but he's not, he really isn't."

Right.

Patrick Knight--No Joke

2007-06-27T13:40:00.000-07:00

Patrick Knight Dies by Lethal Injection Without Delivering Promised Joke

"Death has set me free. That's the biggest joke. I deserve this."

Knight then thanked God for his friends and voiced a plea for several fellow inmates he said were innocent.

"And the other joke is that I am not Patrick Bryan Knight and y'all can't stop this execution now," he added. "Go ahead. I'm finished."

Nine minutes later, Knight was pronounced dead. He was the 18th inmate executed this year in Texas's death chambers.

Prison spokeswoman Michelle Lyons immediately responded to dispell any idea that there could be any doubt as to Knight's identity. "We fingerprint them when they come over," she said.

Knight had received considerable press in the days leading up to his execution by stating that his last words would be to tell a joke, to relieve the stress and pressure felt by his fellow death-row residents. He received approximately 20 e-mails a day with joke suggestions.

I'm not sure how much a joke told while the teller was strapped to the gurney would have lightened things up on the Row anyway...