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You are a 35 year old man. One March day, you are a passenger in your family's SUV. Your pregnant wife is driving, and your 4-year-old son is in the back seat. You are driving to a Sunday dinner.
Suddenly, you're stopped by a New Jersey state trooper. Since you are the vehicle's registered owner, the officer runs your identification and discovers a bench warrant for an outstanding fine. But you have already paid the fine. In fact, you have a letter attesting to that fact, since you have been stopped on several previous occasions.
Nevertheless, you are handcuffed and arrested and taken to the county jail. Once there, you are subjected to an invasive strip and visual body-cavity search. You're told to wash with disgusting soap, and them turn around, lift your genitals, squat, etc.
Then, after six days in the county lockup, you are transferred to a Newark correctional facility, where you are subjected to another more intrusive search before being placed in the general prison population. Fortunately, you are freed the next day, when a magistrate confirms what you have been saying all along -- that you had already paid the damn fine.
So now your ordeal is over, and you are understandably pissed. You sue the state for the invasive and embarassing strip searches. Think you'll get justice?
The 5-4 divided court found two county prisons "struck a reasonable balance between inmate privacy and the needs of the (correctional) institution."
The conservative majority concluded a "reasonable suspicion" standard could be applied when conducting examinations of newly admitted prisoners.
That's refering to today's decision out of the United States Supreme Court. The majority was the usual suspects -- Alito, Roberts, Scalia, and Thomas -- with Kennedy swinging (as he is prone to do) to the right to complete the majority.
I swear, if these five stay on the court longer, this country is going to go back to the stone age.
I think Judge Stephen Reinhardt enjoyed himself writing this opinion, given the way he (subtly) sticks it to the Prop 8 supporters:
1. "[M]arriage is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name 'registered domestic partnership' does not."
2. "We are regularly given forms to complete that ask us whether we are 'single' or 'married.' Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, 'Will you marry me?', whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see 'Will you enter into a registered domestic partnership with me?'. Groucho Marx's one-liner, 'Marriage is a wonderful institution...but who wants to live in an institution?' would lack its punch if the word 'marriage' were replaced with the alternative phrase. So too with Shakespeare's 'A young man married a man that's marr'd,' Lincoln's 'Marriage is neither heaven nor hell, it is simply purgatory,' and Sinatra's 'A man doesn't know what happiness is until he's married. By then it's too late.'"
3. "Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie."
4. "In order to explain how rescinding access to the designation of 'marriage' is rationally related to the State's interest in responsible procreation, Proponents would have had to argue that opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of 'marriage.' We are aware of no basis on which this argument would even be conceivably plausible."
5. "There is a limited sense in which the extension of the designation 'marriage' to same-sex partnerships might alter the content of the lessons that schools choose to teach. Schools teach about the world as it is; when the world changes, lessons change. A shift in the State's marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discovery of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical facts of the world around them. But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particular governor on the ground that students would learn about his holding office."
Well, that law firm, located near Buffalo, represents banks and mortgage servicers when they attempt to foreclose on homeowners and evict them from their homes. It is the biggest law firm of its type in the State of New York.
The firm has been denounced by consumers and consumer advocates for participating in "robo-signing" and allegedly improper foreclosures, with critics saying it helped speed up foreclosures to benefit its lender clients by allegedly authorizing the "assignment" or transfer of mortgages from one lender to another when critics say it lacked authority to do so. It's been vilified by advocates, other attorneys, politicians and even judges for submitting sloppy and allegedly fraudulent paperwork that is riddled with legal errors, including faulty affidavits and notarizations.
You would think that a law firm facing such allegations (and a $2 million fine to boot) would clean up its act. But no. About a month ago, the law firm had an office Halloween party. And the employees of the the law firm dressed up as -- wait for it -- people being foreclosed on. Here are a couple of pictures:
As you can see, the law firm employees showed an appalling lack of compassion toward the homeowners — invariably poor and down on their luck — that the Baum firm had brought foreclosure proceedings against.
In response to this obvious callousness, the two major lenders for home ownership, Fannie Mae and Freddie Mac (themselves not exactly enjoying a wave of public support) decided to “evict” the law firm of Steven J. Baum from its referral list. That's right, Baum people -- no more business for you!
And the results are so so sad. From the Buffalo News:
This month, Fannie Mae and Freddie Mac, the mortgage- finance companies operating under U.S. conservatorship, dropped Steven J. Baum PC from their lists of law firms eligible to handle foreclosures. Servicers including Bank of America Corp. and Ally Financial Inc. also stopped using the firm, which last month agreed to pay the U.S. $2 million and change its practices to resolve a probe of faulty foreclosure filings.
“Disrupting the livelihoods of so many dedicated and hardworking people is extremely painful, but the loss of so much business left us no choice but to file these notices,” Steven J. Baum, who owns the firm, said in the statement.
Payback is a bitch, huh?
To the 67 people employed by the Baum firm... don't let the door hit your ass on the way out.
And Kudos to New York Times columnist Joe Nocera for his work on putting a spotlight on these guys.
You've all heard about the klutzy woman who sued McDonald's because her coffee was hot when she spilt it on herself? And how she won?
That story is used repeatedly to show that lawyers are bad people who create frivilous and stupid lawsuits.
A couple of years ago, I discussed the "McDonald's coffee" case, exposing it for what it actually was: a very serious lawsuit about a very serious injury. Not that it changed the tide. It didn't.
Hot Coffee, a superb new HBO documentary directed by Susan Saladoff, points out that this politically potent narrative consists of half-truths and outright falsehoods. Liebeck’s suit and the jury’s decision were in fact far from unreasonable, and the misleading narrative about the case has helped corporate interests and their political allies make it more difficult for corporations to be held accountable in court.
Saladoff’s film lays out the real story in lucid detail, and no matter how many times the suit was used in Jay Leno monologues there was nothing funny about it. Liebeck was not careless, but spilled the coffee when she, as a passenger in a parked car, took the lid off the cup. The spill did not cause a trivial injury, but severe burns that required multiple operations and skin grafts to treat. McDonald’s, which served its coffee at 180 degrees, had received more than 700 complaints from customers, constituting a clear warning, but it nonetheless required its franchises to serve it at that temperature without warning customers.
Nor was Liebeck greedy or especially litigious. Her initial complaint requested only about $20,000 to cover her medical bills and other related expenses, and she took McDonald’s to court only after the corporation offered a paltry $800 settlement. The headline-generating $2.7 million Liebeck was awarded in punitive damages (selected because it approximated two days worth of the revenues McDonald’s makes by selling coffee) was reduced on appeal to less than $500,000. (The case was later settled for an undisclosed amount.) The Liebeck suit was a thoughtful attempt to seek appropriate redress for a serious harm, not about a clumsy woman trying to wring millions from an innocent corporation.
SAN FRANCISCO—A federal judge has upheld a gay judge's ruling to strike down California's same-sex marriage ban.
Chief U.S. District Judge James Ware said Tuesday that former Chief Judge Vaughn Walker did not have to divulge whether he wanted to marry his own gay partner before he declared last year that voter-approved marriage ban was unconstitutional.
Lawyers for backers of the ban argued at a hearing Monday that Judge Walker should have recused himself or disclosed his relationship because he and his partner stood to personally benefit from the verdict.
Lawyers for two gay couples called the effort to disqualify Judge Walker frivolous, offensive and unfortunate.
Judge Walker publicly revealed after he retired in February that he is in a 10-year relationship with a man.
Prop 8 was a California ballot initiative that banned same sex marriages in California. Well-funded by out-of state bigots (like the Mormons), it narrowly passed in 2008.
But then Prop 8 was challenged in state court for being unconstitutional. But the California courts upheld Prop 8.
After the California Supreme Court upheld the voter initiative, another suit, Perry v. Schwarzenegger, was filed in a Federal District Court in San Francisco. On August 4, 2010, U.S. District Chief Judge Vaughn R. Walker overturned Proposition 8 as being unconstitutional. He also stayed his own ruling; the voter initiative was to remain in effect pending appeal.
The case is kicking around the Ninth Circuit Court of Appeals. The particular issue is standing. You see, the State of California refused to support Prop 8, so the people who are defending it are citizens groups. And there is a question as to whether citizen groups have standing to defend a proposition.
In the meantime, however, another suit was filed to attack Perry v. Schwarzenegger collaterally. Specifically, on April 25, supporters of Proposition 8 filed a motion in district court to vacate Walker's decision in Perry. Walker, who is now retired, has admitted that he is gay. Prop 8 supporters argue that Walker should have recused himself or disclosed his relationship status, and that unless he "disavowed any interest in marrying his partner", he had "a direct personal interest in the outcome of the case".
The hearing on that motion was yesterday; a decision is expected today.
As a preview, let me say this:
The Prop 8 supporters have a very weak argument. First of all, black judges can hear cases involving discrimination; women judges can hear cases that may have an impactg on womens' rights. This has always been the case. The Prop 8 supporters are weilding an argument that, if it succeeds, would change the face of the law forever. You simply can't ASSUME that a judge is impartial simply because he is a member of a group that MIGHT be affected by the outcome of a case. Even the folks at Fox grasp this:
The other reason why the Prop 8 supporters are likely to lose today is because Judge Walker wrote a 138 page opinion. And guess what it doesn't say? It doesn't say:
I am siding with the anti-prop 8 people because I am gay.
That's right. He actually gave 138 pages of reasons why Prop 8 was unconstitutional.
And the Prop 8 people lost because they were TERRIBLE in court. Look at page 11 of the opinion. It reads:
At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that "the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was "not the legally relevant question," id, but when pressed for an answer, counsel replied: "Your honor, my answer is: I don't know. I don't know." Id at 23. Despite this response, proponents in their trial brief promised to "demonstrate that redefining marriage to encompass same-sex relationships" would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn's testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that"responsible procreation is really at the heart of society's interest in regulating marriage." Tr 3038:7-8. When asked to identify the evidence at trial that supported this contention,proponents' counsel replied, "you don't have to have evidence of this point." Tr 3037:25-3040:4.
Now look at page 38 of Judge Walker's opinion. Here Judge Walker is noting the paucity of the evidence supporting Prop 8. Keep in mind that side is called the "Proponents" (as in, the Proponents of Prop 8). Judge Walker wrote:
Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court. Proponents informed the court on the first day of trial, January 11, 2010, that they werewithdrawing [here the judge lists four witnesses]. Doc #398 at 3. Proponents' counsel stated in court on Friday, January 15, 2010, that their witnesses United States District Court because they "were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever." Tr 1094:21-23. The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated.
This is why the Prop 8 team was routed at trial. It wasn't Judge Walker's evil gay bias. It was because the proponents of Prop * failed -- miserably -- in court.
So I expect today's decision to be a slam-dunk win for the anti Prop 8 (pro- same sex marriage) crowd).
UPDATE: The transcript from yesterday's hearing on the motion to vacate indicates that the Prop 8 lawyers (once again) didn't have very good arguments and were taken to town by the presideing judge (Judge Ware). An example:
Judge Ware: What is fact you rely upon that judge walker was in a relationship for purposes of marriage?
Charles Cooper (attorney for the Prop. 8ers): The fact that he has publicly announced that he is and has been in a relationship with another person? [laughter]
Judge: So if you are in a ten year relationship with another person, that is for purposes of marriage? You would concede that you could be in a long term relationship without being in it for purposes of marriage?
Cooper: Yes.
Judge: What distinguishes it?
Cooper: Very fact that two individuals are in kind of relationship Walker has…
Judge: What distinguishes between two?
Cooper: There are platonic friendships that do not lead to marriage. [laughter]
Judge: What do you mean, ‘platonic'?
Cooper: Non-intimate, non-sexual. Clear understanding of media reports…
Judge: You are saying that length of relationship alone converts to marriage relationship?
Cooper: Yes. Bespeaks commitment. All of these have been used interchangeably. The plaintiffs take pains to say they are in long term relationships.
Judge: The plaintiff’s relief was not to stay in a long-term relationship. Nothing threatened their long term relationship. Neither they nor Walker were threatened. The plaintiffs sought to change relationship. What fact would you cite to the court to show that Walker sought to change his relationship?
Cooper: [Stumbles…] There are several points I would make that a reasonable person with knowledge that Judge walker would be expected to have an interest in marrying his long time partner. Judge Walker similarly situated for purpose of marriage just as plaintiffs.
Another excerpt:
Judge Ware: You keep saying that Walker has an interest in getting married. Is that what you are saying?
Cooper: If he has an interest in marriage, …
Judge: You repeated it again. I hear me. I recognize my voice. I’m not sure you hear yours.
Cooper: Let’s back up. The ten year relationship means he was bound to disclose. Also, he must disclose that he is similarly situated to plaintiffs.
Judge: You’ve raised the disclosure question many times. You seem to say that judge is required to disclose. In a case where race is involved, sometimes disclosure not made because race is obvious. We are bound by our past, which is largely irrelevant.
If a female judge has suffered rape or sexual assault and is hearing a case on rape or sexual assault, must she disclose?
Cooper: That’s a tough question. I don’t see how her direct interest would be affected.
Judge: That’s not the question. Would a reasonable person object?
Cooper: It is closer call whether or not reasonable person in possession of all facts whether judge’s impartiality disclosed.
Judge: You would have me rule that judges disclose intimate details of their past such as being abused as child and should not be presumed capable of fulfilling their duty.
Cooper: A judge would have to disclose if the parties think its’ relevant. It’s a broad standard, and includes information that the judge might believe himself would not rise to meritorious recusal. The cases are quite clear. The judge’s responsibility quite broad.
Judge: In this case, Judge Walker need not to have disclosed orientation.
Cooper: That is true. We have made that clear from beginning when first news reports surfaced.
Once upon a time, you heard a song on the radio, you liked it, and you went to the brick-and-mortar store and bought it. You bought it on vinyl, or cassette, or on CD.
And you owned it.
Those days are all but gone now, and the music industry is trying to adapt to the new technology.
And as it turns out, you may not own the music that you think you own.
Surprised? You shouldn't be.
There is a difference between owning a CD which contains music (on the one hand), and having the right to play a song - i.e., licensing (on the other hand).
As music consumers, we're used to the first thing. That's because, in the days of yore, a record company would have to actually manufacture the medium (the record, cassette, CD) that contained the song. You knew you owned something because you could physically touch the medium -- the CD, cassette, etc.
But now that songs can be distributed virtually, the concept of ownership must also move to a virtual one -- i.e., licensing.
This is what the music industry wants you to think of it as. That is, the music industry will tell you that you don't own Katy Perry's "Firework"; you merely have a license to listen to it whenever you want.
And that's fine. Most people don't care about whether a song is owned or licensed, so long as they, as consumers, have control over when it can be heard.
Capitol Records and others have brought a lawsuit in Federal Court in Manhattan against MP3tunes.com, a subscription Internet music “locker” service that raises issues about the legality of unlicensed “cloud-computing” music services. MP3tunes claims not to be liable for copyright infringement because it offers storage by customers of the customers’ own music collections on a remote system it operates. BMI holds that the public performing right has long applied to on-demand, interactive streaming. MP3tunes and their amici (“friends of the court”) make several legal arguments that could create loopholes in the copyright law relating to the public performing right.
MP3tunes claims that it is offering only passive equipment and should not be liable for any of the activities of its customers that occur when they use its service and that the customers are the ones that upload the music, thereby committing the “volitional acts” that MP3tunes claims that the law requires for direct infringement. It claims customers push the “play button” and therefore the customers are the volitional actors when it comes to transmissions of the performances.
What does all that mean?
Well, it involves the newest innovation in computing: cloud computing. For those unfamiliar, "cloud computing" means this: Your files are stored at Place A, but you use them at Place B. We're used to having files (programs, apps, etc.) stored on the device in front of us (the computer, the smartphione, etc.), but because of the Internet, they don't HAVE to be in front of us. And that's where cloud computing comes in. I have all my music at home, on my computer. I also have them on my iPod. But there exists the capability for me to listen to those songs whereever I am, by streaming them over the Internet. It's similar to Internet radio, except that I select the tunes, which come from my music collection.
BMI is taking the position that music streaming over the Internet -- even music from my music collection that I pick -- constitutes a "public performance".
It's a ludicrous position and one that will be tough to win. But if it does, it means that cloud music -- the ability to store your music at home, but stream it to your car or work or whereever you are -- will die before it even takes off.
A trial was scheduled for June 14, 2011. Defendants requested a short continuance because “one of their counsel, Bryan Erman, along with his wife, is expecting their first child due on July 3.”
Plaintiffs’ counsel objected — strenuously. This took Judge Eric Melgren (D. Kansas) by surprise.
Judge Melgren granted the continuance — and took the opportunity to benchslap the lawyers who refused to consent….
Check out the order here. Ouch. Here’s the conclusion:
Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role. Counsel are encouraged to order their priorities similarly.
Defendants’ Motion is GRANTED. The Ermans are CONGRATULATED.
The video has received more than 1.5 million views since it went viral on YouTube last week. The woman in the video, Cathy Cruz Marrero, doesn't think the video is very funny. She claims she could have gotten seriously hurt and that the security guards should have helped instead of laugh.
"I'm just like dumbfounded. And all I kept saying was, 'I fell. I fell. I fell in the fountain. I fell in the fountain.'"
First of all, the security guards were laughing after the fact. They were watching a replay.
And more importantly, honey, you got out of the fountain fine... on your own. Within seconds. How, exactly, could the security guards have helped you (assuming that they saw you plunge in real time as it happened)?
The United States Court of Appeals for the Fifth Circuit, one of the most right-wing courts in the country, sanctioned a former high school cheerleader because she brought a lawsuit claiming that she shouldn’t be required to cheer for her alleged rapist:
The former cheerleader and her family are appealing the ruling by the Fifth U.S. Circuit Court of Appeals in New Orleans, which includes an order to pay the school district’s legal fees on the grounds their suit was far-fetched and frivolous. [...]
H.S., then 16, attended a party in her hometown of Silsbee, Texas, in October 2008. She said she was dragged into a room, thrown onto the floor by several youths and raped by Rakheem Bolton, a star on the school’s football and basketball teams.
Bolton and a teammate were arrested two days later, but were allowed to return to school after a county grand jury declined to indict them. They were later indicted on sexual assault charges, but in the interim came the February 2009 incident on the basketball court.
H.S. joined in leading cheers for the Silsbee High team. But when Bolton went to the foul line, and the cheers included his name, she stepped back, folded her arms and sat down.
The cheerleading coach removed her from the squad for the rest of the year. And she sued.
I've read the opinion (PDF), trying to make sense of the Fifth Circuit's reasoning. Now, some of it I agree with. For example, I don't think H.S. had what could be called a "property interest" in her cheerleading position. I mean, I see why her lawyer put that claim in there; it's just not a very good one.
But I was curious about the First Amendment argument. H.S. asserted that her decision not to cheer was protected free speech, and so the school's decision to bump her from the squad was punishment for exercising free speech.
The lower court held that H.S.'s symbolic speech was not particularized enough to be considered protected speech. In other words, by sitting down and not cheering, most objective observers would not know what she was "saying", and therefore that speech isn't protected by the First Amendment.
The Fifth Circuit apparently didn't go along with the lower court on that, choosing to breeze by it. However, the Fifth Circuit went on to write these bizarre paragraphs:
Even assuming arguendo that H.S.’s speech was sufficiently particularized to warrant First Amendment protection, student speech is not protected when that speech would “substantially interfere with the work of the school.” Tinker, 393 U.S. at 509. “The question whether the First Amendment requires a school to tolerate particular student speech . . . is different from the question whether [it] requires a school affirmatively to promote particular speech.” Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,270 (1988).
In her capacity as cheerleader, H.S. served as a mouthpiece through which SISD could disseminate speech - namely, support for its athletic teams. Insofar as the First Amendment does not require schools to promote particular student speech, SISD had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit. Moreover, this act constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily. Accordingly, we affirm the district court’s dismissal of Appellants’ First Amendment claim against SISD, Bain, Lokey, and McInnis.
[Emphasis mine]. Now that's just messed up. I don't think cheerleading constitutes the "work of the school" and even if it does, losing one cheerleader for part of the time does not constitute "substantial interference" with that work.
in other words, pity the school, whose First Amendment rights were taken away by the dumb cheerleader who refused to do her job. That's what the Fifth Circuit is saying.
I can understand a legal argument for denying the cheerleader "H.S." her day in court. It goes something like this: one, you have no right to be on a cheer leading squad; it is purely voluntary and by doing so you agree to abide by the rules of the team insofar as they are non-discriminatory. Two, one of the rules of the team, I imagine, is to cheer for the players. Three, if you cannot abide by that rule, you have the option to quit; as no one can physically force you to cheer, or you can be removed from the team. Four, you do not have the right as a member of the team to advance your own views on behalf of the team.
But I don't think the lawsuit was so frivolous that the cheerleader failed to present an arguable claim. She shouldn't be burdened with the school district's court costs.
"Many of us who understand the law are scratching our heads this morning, laughing so we don't cry... I would like to see Oklahoma politicians explain if this means that the courts can no longer consider the Ten Commandments. Isn't that a precept of another culture and another nation? The result of this is that judges aren't going to know when and how they can look at sources of American law that were international law in origin."
-- Rick Tepker, the first member of the University of Oklahoma School of Law faculty to try a case before the U.S. Supreme Court, on the referendum passed by Oklahoma citizens which bars state judges from -- I am not making this up -- considering Islamic or international law when making a ruling.
Which is kind of like passing a law which says that FEMA can't set up death camps to indoctrinate your kidnapped children into socialism.
It's very disconcerting what these right wingers actually believe. They think liberal judges might come along and apply Sharia law? Seriously? As Digby once said: "Somebody's got to stop all those liberal judges from imposing ultra-conservative Sharia Law and stoning gays and women who stray from God's path. Oh wait...what are we talking about again?"
I've written in the past -- here and here and here -- about the execution of Cameron Todd Willingham in the state of Texas, a state which has a disturbing record of getting it wrong when it comes to death penalty cases.
For those unfamiliar with the story, Cameron Todd Willingham was executed by the state of Texas on February 17, 2004 after having been found guilty by a jury at trial back in 1992. The trial stemmed from a 1991 fire in the Willingham household in which Willingham's three daughters died.
The case came into national prominence after Willingham's execution when Texas governor Rick Perry tried to bury it. A state commission on arson was about to conclude that Texas forensic "experts" (who were nothing but glorified firefighters) were dead wrong when they concluded that the fire was intentionally set. Perry basically replaced the commission, rather than have that report released. And that's who most people came to know about Willingham in the first place.
Last night, PBS' Frontline did a nice expose on the Willingham case and execution, interviewing some of the key players. It was bone-chilling.
I was reminded of the documentary The Thin Blue Line, which focussed on another man -- Randall Dale Adams -- who was facing execution in Texas. Basically, the police decided they had their man early on, and built a largely circumstantial case around it, using very thin evidence. As a result of the film, Randall Adams was freed and pardoned.
The scary thing about The Thin Blue Line was the interviews with Texas law enforcement. One of them said, "When we interviewed Adams at the police stations, he kept saying he was innocent. It was like, he was almost OVER-emphasizing he was innocent". As it turned out, Adams WAS innocent, which probably explains why he was so emphatic. But at the time, oddly, the fact that he "over"emphasized his innocence was looked upon as proof of guilt.
There was a lot of that in last night's Frontline documentary about Willingham. How he (supposedly) didn't show enough remorse for the death of his children, etc. The fact that he occasionally abused his wife. That's what made people think he was guilty.
But was there evidence that Willingham actually set the fire that killed his three children? Not according to the best experts in the country. Did he have a motive? No.
Anyway, if it re-airs, I suggest you take a gander. This type of thing happens all the time in this country, especially in Texas.
Danny Lampley was jailed by Chancery Court Judge Littlejohn in Tupelo for failing to recite the pledge of allegiance in open court earlier this week. Danny was one of the local lawyers who represented the plaintiff in the Pontotoc school prayer case years ago, working with the ACLU and People for the American Way.
The order incarcerating him provides:
BE IT REMEMBERED, this date, the Court having ordered all present in the courtroom to stand and recite the Pledge of Allegience, and having found that Danny Lampley, Attorney at Law, failed and refused to do so, finds said Danny Lampley to be in criminal contempt of court.
The order states that for this, Danny Lampley “is hereby ordered to be incaraerated in that Lee County jail.” The order continues:
IT IS FURTHER ORDED, ADJUDGED, AND DECREED, that Danny Lampley shall purge himself of said criminal contempt by complying with the order of this Court by standing and reciting the Pledge of Allegiance in open court.
For what it is worth, the judge is clearly wrong here. The Constitution protects freedom of speech, which means (in part) that the government (here, the court) cannot order you to give an oath or pledge. That is forced speech.
A federal district court in Massachusetts has ruled that the portion of the Defense of Marriage Act of 1996 -- specifically, the part that defines "marriage" as between a man and a woman only -- as unconstitutional. The ruling came in two opinions, Gill v. Office of Personnel Management, and Massachusetts v. HHS.
The state had argued the law denied benefits such as Medicaid to gay married couples in Massachusetts, where same-sex unions have been legal since 2004.
Judge Joseph L. Tauro agreed that DOMA forces the state to discriminate against its own citizens and ruled that the federal Defense of Marriage law violates the Constitutional right of married same-sex couples to equal protection under the Fifth Amendment.
He also struck down DOMA on Tenth Amendment grounds, stating that marriage is the province of the states, not the federal government. This is a bit of a "pie-in-your-eye" to conservatives: the Tenth Amendment is basically an anti-federalism "states' rights" amendment. Judge Tauro basically took it and said "States' rights? You got it. States get to decide who gets 'married'; not the federal government."
It will probably be appealed. Yes, it's the Obama Administration, but the Justice Department is independent of politics.
The New York Timescoverage relies heavily on the viewpoints of Professor Balkin who thinks the decision will be overturned (his expanded critique of the decision is here). Unfortunately, Balkin's argument boils down to (1) most people in this country aren't ready for same-sex marriage and (2) if you strike down DOMA as being discriminative, then you have to change all kinds of federal programs (Social Security benefits, etc.). Those are nice arguments, but they are not legal arguments. The bottom line is as the opinion states, i.e., it is discriminatory (violating the Fifth Amendment) and it treds upon areas of law traditionally left to states (violating the Tenth Amendment).
On the latter point, Balkin argues that the federal government has always been enmeshed in family matters:
But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government's taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.
This overstates things. There is nothing in the modern welfare state, nor the tax code, which "defines families". Families and marriages are NOT defined in the tax code -- I know, I've looked. The definition of marriage (up until DOMA) has always been left to the states, and the states have always differed (for example, with the age of consent to marry). Balkin is failing to draw a distinction between federal laws which are deal with marriage (tax breaks for married couples, etc.) and laws which define the scope of what is "marriage" in the first place.
Balkin makes another point:
Moreover, while insisting that marriage is a distinctly state prerogative, Judge Tauro argues that the federal constitution makes it irrational for the federal government to discriminate between same and opposite sex couples. But if so then it follows that it would also be irrational for a state government to discriminate, because the test under the Fifth Amendment equal protection component and the Fourteenth Amendment's Equal Protection Clause (which applies to the states) is the same. Thus Judge Tauro is saying that marriage is none of the federal government's business, except, of course, when a federal court thinks otherwise. He is, in essence, laying the groundwork for an equal protection challenge to state marriage laws in virtually every state. This is not a result that is particularly respectful of state prerogatives!
Indeed, Balkin is correct when he says that Judge Tauro is laying the groundwork for the claim that states cannot discriminate between same-sex and opposite-sex marriages. I readily concede that if only because my reading of the Constitution mandates marriage equality.
But this does not mean that Tauro is at odds with himself. In this matter, Balkin is being deliberately misleading. On a statutory level, in the realm of the definition of marriage, the Tenth Amendment mandates that states have the prerogative. But each state's statue much comply with the protections of the federal Constitution. DOMA is not an amendment to the Constitution; it's a federal statute. Therefore, as between DOMA and state law, state law has the prerogative -- this is what the case was about, and what the opinion holds (i.e., it is not at odds with itself). But as between the federal constitutional protections and state law, the federal constitution has the prerogative.
This is the first step in what will be a long-drawn out legal process....
A woman sues Google because she used Google Maps to walk to her destination and got hit by a car. Apparently, Google Maps didn't warn her that cars might be, you know, on the roads.
Rosenberg, a Los Angeles California native, is suing Google because Google Maps issued directions that told her to walk down a rural highway. She started walking down the highway--which had no sidewalk or pedestrian paths--and was struck by a car. She is suing Google for her medical expenses ($100,000), as well as punitive damages. She is also suing the driver who struck her, Patrick Harwood of Park City, Utah.
On January 19, 2010, Rosenberg was apparently trying to get from 96 Daly Street, Park City, Utah, to 1710 Prospector Avenue, Park City, Utah. She looked up the walking directions using Google Maps on her Blackberry. Google Maps suggested a route that included a half-mile walk down "Deer Valley Drive," which is also known as "Utah State Route 224."
There's not much more to say--she started walking down the middle of a highway, and a car hit her. Who wouldn't have seen that one coming?
AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law. According to Chief Justice John Roberts, his job is just to “call balls and strikes.” According to Justice Antonin Scalia, conservative jurists merely carry out the “original meaning” of the framers. These are appealing but wholly disingenuous descriptions of what judges — liberal or conservative — actually do.
To see why this is so, we need only look to the text of the Constitution. It defines our most fundamental rights and protections in open-ended terms: “freedom of speech,” for example, and “equal protection of the laws,” “due process of law,” “unreasonable searches and seizures,” “free exercise” of religion and “cruel and unusual punishment.” These terms are not self-defining; they did not have clear meanings even to the people who drafted them. The framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations.
Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.
That alone is worth the price of admission. Anytime anyone argues that conservative judges simply "apply the Constitution" and that liberal judges are "activists", they are simply to ignorant and misinformed to listen to. Republicans and conservatives don’t care about the law, the Constitution, or “conservative” principles or “strict constructionism” or any of he other bullshit that rolls so effortlessly off their lips. They care about what they want right now, and if they don’t get their way, you are an activist judge. Period.
Price goes on to discuss HOW the Constitution should be interpreted, and closes:
Faithfully applying our Constitution’s 18th- and 19th-century text to 21st-century problems requires not only careful attention to the text, fidelity to the framers’ goals and respect for precedent, but also an awareness of the practical realities of the present. Only with such awareness can judges, in a constantly changing society, hope to keep faith with our highest law.
This does not mean judges are free to make up the law as they go along. But it does mean that constitutional law is not a mechanical exercise of just “applying the law.” Before there can be a serious national dialogue about our Constitution, our laws and the proper role of our judges, that myth must be exposed.
Interesting opinion today from the Florida Supreme Court's Judicial Ethics Advisory Committee, which was asked this question in a recent case:
“Whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.”
In other words, can Judge Smith, a judge in the local Springfield civil court, be a Facebook friend of an attorney who practices in Springfield, and occcasionally appears in a case before Judge Smith?
The Florida Supreme Court's Committe said "no". Doing so would violate certain canons of judicial ethics, particularly the one that states that judges should avoid having connections that make it look like theycould have favoritism.
A judge ruled today that the flute riff from Men At Work's "Down Under" is plagerized from the tune set to an Australian nursery rhyme called "Kookaburra" (also known by its first line: "Kookaburra sits in the old gum tree").
Let's take a quick look at some of the new laws which take effect today in North Carolina.
The big one is, of course, no texting while driving. Now, don't think you can be cute about this. But no, it applies to emailing, too. In fact it applies to any time you "manually enter multiple letters or text in the device as a means of communicating with another person" while driving. You can do it while parking, though. Exceptions are carved out for GPS devices. And you can still use voice activation.
Kids are being protected better, as of today. There is a criminal law on the books, as of today, for cyberbullying a minor, or using a minor to cyberbully a parent. School buses have better protection: a new law allows for cameras on school buses to get at drivers who don't stop -- the penalty for failure to stop and killing a kid is increased as well. Sex offenders cannot drive school buses anymore (this was a problem?). And solicitation of a minor by computer now extends to mobile devices.
Other stuff:
New rules regarding preservation of DNA evidence that is used to convict criminals
It is illegal to "target picket" a single residence in a manner that would cause severe emotional stress to the occupant.
School board members are now held to the same standard as police, sheriffs, court clerks, etc. when it comes to failure to discharge their duties
Certain glass tubes which can serve as crack vials are now regulated.
Stonger penalities against deadbeat dads who defy court orders to pay child support.
Stronger penalities for removing or altering serial numbers on guns.
With some exceptions, it is now illegal to own a venomous snake, crocodile, or a boa constrictor (or other "restricting snakes").
And my personal favorite:
AN ACT to create the offense of LARCENY, DESTRUCTION, DEFACEMENT, OR VANDALISM OF PORTABLE TOILETS OR PUMPER TRUCKS.
SECTION 1. Article 16 of Chapter 14 of the General Statutes is amended by adding a new section to read:
"§ 14‑86.2. Larceny, destruction, defacement, or vandalism of portable toilets or pumper trucks.
Unless the conduct is covered under some other provision of law providing greater punishment, if any person steals, takes from its temporary location or from any person having the lawful custody thereof, or willfully destroys, defaces, or vandalizes a chemical or portable toilet as defined in G.S. 130A‑290 or a pumper truck that is operated by a septage management firm that is permitted by the Department of Environment and Natural Resources under G.S. 130A‑291.1, the person is guilty of a Class 1 misdemeanor."
SECTION 2. This act becomes effective December 1, 2009, and applies to offenses committed on or after that date.
In the General Assembly read three times and ratified this the 21st day of May, 2009.
RALEIGH, N.C. — Twenty murderers, rapists and robbers sentenced to life in North Carolina prisons in the 1970s will be released at the end of October as a result of recent court rulings.
Why?
Well, basically it comes down to this. These murderers, rapists, and robberts were sentenced to life in prison in the 1970s as a result of their crime.
In 1981, the NC sentencing guidelines were revised. Essentially, all sentences were cut in half. The new guildelines were applied retroactively.
One industrious lifer argued to the court that, back in the 1970s, the sentencing guidelines interpreted "life in prison" as meaning "80 years". Therefore, when the 1981 changes came along, that meant that their sentence was, effectively, 40 years.
Last week, the highest court of North Carolina agreed with this interpretation.
So, with some staturorily-recognized time off for good behavior, some "lifers" are now being set free, having served their sentence. More will be released in the decade to come.
Thank you, legal fluke.
[For what it is worth -- since 1994, when North Carolina eliminated parole, a life sentence in North Carolina has meant the convict will die behind bars. But only first-degree murder can carry a life sentence, and now, the shortest sentence someone convicted now of first-degree forcible rape can serve is 12 years.]
This story is starting to get national attention. Presumably, that's why Perry said what he said:
Gov. Rick Perry on Wednesday defended his actions in the execution of Cameron Todd Willingham, calling him a “monster” and a “bad man” who murdered his children.
Specifics? Sure...
“Willingham was a monster,” the governor said. “Here's a guy who murdered his three children, who tried to beat his wife into an abortion so he wouldn't have those kids. Person after person has stood up and testified to facts of this case that, quite frankly, you all are not covering.”
Willingham, he said, showed how bad he was on the day of his execution.
“This is a bad man. This is a guy who in the death chamber in his last breath spews an obscenity-laced triad (sic) against his wife,” Perry said.
This is utter bullshit.
First of all, the prosecutor claimed that he beat his wife to abort his kids; his wife denied that at trail (and she really ought to know). Did he beat his wife other times? Yes, the evidence suggests that. But is that a fact of the case? Emphatically, no. Neither does swearing to your wife while being put to death. (She insisted he was innocent, until he was found guilty, and then she changed her mind, and failed to assist him for over a decade as he exhausted his appeals). Frankly, if I were an innocent man sitting in death row, I might be inclined to cuss as well.
But here's the thing -- I don't care if Willingham was a bad husband. It is entirely irrelevant as to whether he commited arson to kill his children. There was (as I have blogged before) no eyewitness and the forensic evidence (we now know) indicated that the fire was not deliberately set.
This seems to be a thing with the Texas criminal justice system: if you are a bad man, you must have done everything that the prosecutor says you did. It's been around a long time -- go rent (if you can find it) The Thin Blue Line. An alarming number of people have been executed in Texas -- before their innocence is discovered.
Calling Willingham a "monstor" and a "bad man" is not evidence of guilt. Perry is grasping here, because he knows he screwed up and allowed an innocent man to die.
Q. I have a restraining order filed against me. Can I still "poke" that person on Facebook?
A: It depends on the terms of the restraining order, but the answer is probably "no".
A Hendersonville woman was arrested for virtually “poking” someone on the social networking site Facebook.
Shannon D. Jackson, 36, was arrested Friday, Sept. 25 for allegedly violating an order of protection.
According to the affidavit filed in Sumner County General Sessions Court, Jackson is accused of using the “poke” option on Facebook to contact a Hendersonville woman, thus violating the terms of the order of protection, which stipulates “no telephoning, contacting or otherwise communicating with the petitioner.”
Poking is a feature unique to Facebook that conveys no other message but informing a user they have been “poked” by another user.
Of course, this incident begs a question. Since you can only "poke" your friends, why wasn't this Shannon D. Jackson already blocked by the alleged victim?
As reported in the Wall Street Journal law blog, Justice Scalia has some interesting opinions when it comes to the quality of counsel that appears before him in the U.S. Supreme Court:
Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.
I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?
I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.
And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.
So.... from his perspective on the Supreme Court bench, Scalia thinks that, generally speaking, the quality of lawyers in today's bar is high.
But... according to Scalia, that's bad thing.
Say what?
Look, lawyers get a bad rap. Sometimes deservedly so. But to suggest that smart lawyers are wasting their time practicing law seems... well... dumb.
No, lawyers don't produce anything in society (neither do judges for that matter) but neither do, say, surgeons. Does that mean a smart and accomplished surgeon is wasting his time? That society would be better off if he had chosen a different vocation?
Being a good "smart" lawyer does not mean that one can become a good engineer and "invent the automobile" (which, last time I checked, was already invented). They are entirely different skill sets. I know lawyers -- brilliant lawyers -- who can't program a VCR.
Orly Taitz is an attorney and a doctor and she's the one filing all these lawsuits trying to prove that Obama was actually a Kenyan.
Having had one of her cases thrown out of federal court last week (with an admonishment from the judge that if she continues to waste the court's time, she'll be fined), now she's the object of conspiracy theories, apparently. My how the worm turns:
Please don't listen to vicious rumors
Attorney Orly Taitz responds to her critics
I am getting close to removing the Usurper, and there are more and more vicious rumors about me and my whole family. It is 5:30 in the morning and I had to cut on sleep yet again to take some time and debunk all those vicious rumors.
The Usurper is a Batman villian now, I think.
First, there was a rumor that there is a declaration by Larry Sinclair filed with court. Please, go on Pacer, it is a public record. There is nothing there, no such declaration. People need to understand that a person cannot just come from the street and file a declaration or an affidavit. It has to be filed by a party to the action. Either I, as an attorney for the plaintiffs, or the attorney for the defendants, assistant U.S. attorney, would file something. Neither I nor the U.S. attorney filed any such affidavit or declaration.
Dr. Orly Taitz learned that in law school. And I use the word "in" advisedly. You see, she received a law degree from William Howard Taft Law School. Which is a "distance learning" law school only. So she wasn't IN law school. Also, Taft isn't accredited by the ABA. No, I'm not kidding.
There was a rumor that there was some complaint filed with the CA bar and I was disbarred. None of it is true. Please go on the web site of CA bar and see that I am an attorney in good standing and never had any action against me.
There was a rumor that Philip Berg somehow became part of my case with judge Carter and filed a subpoena to ambassador of Kenya as part of this case. Again, Berg has nothing to do with this case. There is nothing in the case having to do with Berg.
Berg is another birther attorney who also gets his cases routinely thrown out of court. That's why it's easy to understand why so many people apparently think the two are working together.
Lastly, there was a vicious rumor that my husband is somehow connected with swine flu and swine flu vaccine. Again, ridiculous rumor.
My husband studied computer science and business. He never studied pharmacology, doesn't know pharmacology and wouldn't know the difference between a virus and an elephant.
One doesn't need to study phramacology to know the difference between a virus and an elephant.
He is a CEO of a company that produces a software, which is a tool used in research.
Whoa there, Einstein! You're going to fast. Now what is this "software" thing of which you speak?
It is used by many universities in the country. It is used in agriculture research, in chemical research, in any research that deals with molecules and computation of properties of molecules, that are being synthesised. There are millions and millions of molecules in the world. New ones are being synthesised every day, my husband has no clue what different companies are doing in their research. It is similar to any other software that is used as a tool.
So he makes software used for agricultural research and molecules. Actually, that does connect him with the swine flu -- just as much as Obama's grandparents being Kenyan connects Obama to Kenya.
There is an accounting software, quicken. A computer engineer, who invented this software didn't become your accountant, didn't enter the information in your tax returns. Microsoft Word or Word Perfect is used by many writers, but it didn't make Microsoft a poet or a comedian or a screen writer. Microsoft Word or Word Perfect is just a tool.
No, no. I'm sorry. I'm just not following you, Orly.
I hope I explained this point and wouldn't have to go to it again.
That makes two of us.
My husband is a good man, he is a devoted father and he is there for our three sons when I am travelling around the country raising support for Obama's illegitimacy issue, when I am in court fighting to make sure this country doesn't turn into another Communist Hell, as I experienced as a child, so we don't live under Dictator Obama with all his szars like another Himler or Herring or another Beria.
In other words, your husband behaves responsibly, while his kids' mommy is annoying the country on her Dingbat Tour.
By the way, I know there are many ways to spell "czars" -- or "tsars" -- but "szars" is a new one for me.
I hope people stop attacking my family and start attacking Obama and demand that he produce his vital records immediately or resign or be removed immediately. Judge Carter has written "Court encourages discovery before the scheduling conference (it is on October 5th)" I have submitted a proposed deposition schedule. Let's make sure Obama shows up for his deposition with his hospital birth certificate ready for examination.
Yeah. Don't hold your breath.
UPDATE: It gets funnier as the day goes on.
TPM posted a letter one of Orly's clients, telling her to stop representation. Orly now says the letter is a forgery. Yup, Obama birth certificate is a forgery; so is the letter from her ex-client.
I don't know if this letter came from her, since she is in Iraq now and the Office -max store from where it came, states that they don't send faxes for customers. The signature on her notarized letter from Kansas and this letter looks different. Regardless, whether it is her or not, there is no ground for accusations. She authorized me to proceed with the legal action. Motion for reconsideration is a routine procedure and attorney is not required to get an additional consent from the client. Any attorney will confirm that. That is particularly true in exigent circumstances like these.
Wrong, Orly. You can't do squat without the client's permission, especially when the client tells you to cease and desist.
It appears Connie was pressured by the military. It appear to be a concerted effort to quash all free speech, particularly any legal challenges to Obama's legitimacy, Attorney Hemenway in DC was threatened with sanctions of $10,000, I was threatened with sanctions. Connie Rhodes was threatened with high costs of litigation to be paid to the Department of Defense and Department of Justice. It is possible that this letter was written to avoid paying high litigation costs.
So the letter is from her now, and she was pressured?
The most important question is still on the table: why would the judge levy $10,000 in sanctions instead of instructing Obama to produce a real Hospital birth certificate with a name of the hospital name of the doctor and signatures , so we can locate this birthing file? Why go to such extend?
Because your case is bullshit?
The only answer is: that the administration is scared, they know they have nothing to show for except for the piece of JPG garbage that Obama posted on the Internet (no name of the hospital, no name of the doctor).
Yes, of course. And the judge is.. uh... in on it?
Well, all good that ends good. This threat of sanctions gives me an opportunity to demand rule 11 discovery and get all of Obama' records through the back door
Actually, he's now an ex-judge. That was the basis of his lawsuit, in fact:
It seems that our old friend Roy L. Pearson, Jr., he of the $65 million pants, has recovered sufficiently from losing that case to get on with losing another one. This one was a wrongful-termination lawsuit against the District of Columbia, his former boss (Chief Administrative Law Judge Tyrone Butler), and other alleged miscreants. A federal judge dismissed all of Pearson's claims on July 23.
As you may recall, Roy Pearson was the ALJ who pursued a legal crusade against his local dry cleaners for allegedly losing a pair of his pants and then refusing to honor their posted "Satisfaction Guaranteed" policy to his full and complete satisfaction.This would not have been newsworthy except that, by his calculation, he was entitled to $65 million in damages. To be fair, he did revise his figures later, and from then on always cited a much more reasonable figure of $54 million. See "Judge Drops Pants; Suit Still On," Lowering the Bar (June 6, 2007). His ultimate recovery in the case was easier to calculate: zero.
In the meantime, Pearson's term in office had expired and he was not reappointed. Lawsuit followed.
While the pants were not the focus of this lawsuit, they do appear in it, much as their ghostly form will continue to haunt Pearson for some time. Pearson alleged that by refusing to appoint him to another term, defendants had violated his rights to free speech, equal protection and due process of law (among other things). He had a long list of demands, including reinstatement and, of course, not less than $1 million in damages per defendant. Again, no, the court ruled.
Pearson's free-speech claims involved allegations that he was fired for trying to reform the Office of Administrative Hearings, where he worked. Pearson's initial term began on May 2, 2005, and by June 20 he had already drafted and circulated a 19-page memo full of complaints. (Like I always say, there's no better way to get settled in a new job than to circulate a memo extensively criticizing what everybody has been doing.) Within another month, he had taken his complaint to a supervising commission, and a week later, he wrote the mayor. In that letter he further endeared himself to the boss by telling the mayor that Chief Judge Butler had "deeply rooted character, judgment and ethical deficiencies," "corrupt ethics, demonstrably poor judgment and failed leadership," had led a "gangsta effort" to intimidate him and engaged in other "astoundingly inappropriate conduct." Pearson had been employed for about nine weeks at this point.
Remarkably, when Pearson asked to be appointed to a full ten-year term a few months later, Chief Judge Butler said he did not oppose the appointment. (He did suggest that Pearson might want to buff up his "teamwork" skills a bit.) On March 8, 2007, Butler confirmed the recommendation, and the next day, Pearson graciously sent a group email to his coworkers encouraging them to "compile a record" that would "make it difficult for CJ Butler to knife [them]."
He also compared his personal struggle to the civil rights movement, which was a nice touch.
The court's rejection of Pearson's claims was pretty straightforward, given those facts. Most comical was Pearson's argument that his First Amendment rights were violated because he had been fired partly for pursuing the pants case, which he insisted was a "public interest lawsuit." Well, I can vouch for the fact that there was public interest in his lawsuit, but that's not what he meant. As the court put it, "[t]he mere fact that plaintiff characterizes his status as that of a private attorney general" does not change the fact that he was pursuing "a personal vendetta against a dry cleaners over a pair of pants." Sadly, the failure of Judge Pearson's crusade means that the next citizen who suffers from unfair pants deprivation will be forced to walk the same lonely road alone. And with no pants.
I can't imagine any earthly reason why I would want to follow Walmart's tweets on Twitter. Believe me, there is nothing Walmart can say -- especially in 140 characters or less -- that would be of the slightest interest to me.
But, I recognize that I am powerless to stop the aging process which results in a slow slide into dementia. I also recognize that, conceivably, I could get whacked in the head by a falling piano, lose all my senses, and start behaving erratically. In other words, it is theoretically possible, albeit unlikely, that I may someday choose to follow Walmart's tweets on Twitter. Perhaps I will center my entire life around Walmart's wonderful little missives -- who knows?
You need to realize that you're asking me to read the equivalent of 30 full-length tweets (and excruciatingly dull ones, at that) just to get permission to read a single actual tweet. You get that, right?
What I'm trying to say is this: Dudes, get over yourselves. It's just Twitter, for chrissakes.
Michael Dorf has an excellent thoughful column explaining the DOJ's mostly (but not entirely) weak defense of the Defense of Marriage Act in the Smelt case. DOMA prohibits the federal government from granting same-sex couples benefits that, by law, flow from "marriage" or are granted to a "spouse" -- health benefits, for example.
Why did the Obama Justice Department take such a firmly pro-DOMA position in Smelt? Here is the answer that John Berry, director of the Office of Personnel Management, gave for the Administration:
"This president took a solemn oath to uphold the Constitution of the United States and he does not get to decide and choose which laws he enforces. He has to enforce the laws that have been enacted appropriately and that he has inherited."
That is not entirely wrong. After all, many critics of President George W. Bush objected that he frequently used "signing statements" and other techniques to ignore, gut, or severely under-enforce those laws with which he disagreed, often citing a tendentious constitutional objection under the rubric of the "unitary Executive." If Bush was wrong to rely on his idiosyncratic constitutional views to evade the law, then isn't Obama right when he authorizes his Justice Department to mount a vigorous defense of a law with which he disagrees, namely DOMA?
Maybe not. In rejecting the Bush Administration's exalted view of the President's role in interpreting the Constitution, the Obama Administration may be going too far in the opposite direction. If a law were blatantly unconstitutional, then even though it had been signed by one of his predecessors, President Obama would have not only the right, but the duty, not to enforce or defend that law.
To be sure, under existing precedent, DOMA is not blatantly unconstitutional. Most of the arguments made in the government brief in Smelt are at least colorable.
Yet even that may be too low a standard. The Justice Department, when defending a federal statute, is not in the same position as a lawyer representing a criminal defendant. The criminal defense attorney has a professional duty to make whatever legal arguments she can to win her client's freedom. By contrast, the executive branch's defense of a federal statute invariably has a substantial policy element to it.
For example, the government says in its Smelt brief that DOMA Section 3 is justified by a Congressional decision not "to obligate federal taxpayers in [non-same-sex marriage] States to subsidize a form of marriage their own States do not recognize." That is not merely some position taken by any old litigant in the hope that it will be adopted by a court. It is an official declaration by the federal government that requiring all same-sex couples in the nation to subsidize marriage benefits for heterosexual couples only is what the brief terms "a cautious policy of federal neutrality," but that equality for same-sex couples would unfairly burden opponents of same-sex marriage. Such doublespeak is inconsistent in tone and spirit with the Administration's commitment to repealing DOMA.
In the end, Mr. Berry lets the Administration off the hook too easily because he does not seem to appreciate the real objection to the Smelt brief. The problem was not so much that the government defended DOMA, as it was the way in which the government did so. A president may well consider that his oath of office obligates him to mount a legal defense of laws that he dislikes. But he has a choice about how to mount that defense. In Smelt, the Obama Administration chose poorly.
On the heels of increasing pressure from gay rights groups, Obama signed a memorandum today that ostensibly will provide more benefits to gay-married federal employees. But not really. All the memorandum does is direct all agencies to report back to the Office of Personnel Management on the things they can do within the constraints of the Defense of Marriage Act and, presumably, implement those changes at the end of the review period. There are some benefits that law provides to "families" or "children" -- leave to care for a sick family member under the Family Medical Leave Act or long-term-care insurance. It's the second set that the president is moving today to grant. So he's still sticking to the letter of DOMA.
The plaintiff: A class action brought by Janine Sugawara, on behalf of all buyers and eaters of "Cap'n Crunch With Crunchberries"
The defendant: Pepsico, the owner, marketer, and distributor of "Cap'n Crunch With Crunchberries"
The allegations: Pepsico engaged in fraud, breach of warrenty, false advertising, as well as unfair and deceptive trade practices, by making and selling cereal with "crunchberries" that aren't berries at all. This misleads the consumer into thinking (incorrectly) that the cereal contains fruit and is therefore healthy and nutricious.
The court opinion (pdf): The plaintiff loses because the plaintiff is an idiot. (Actually, the court uses a "reasonable consumer" standard. And it found that a "reasonable consumer" would know that the crunchberries aren't actually fruit. Prior courts held the same when similar lawsuits were brought against "Fruit Loops").
Favorite part of the opinion:
In this case . . . while the challenged packaging contains the word "berries" it does so only in conjunction with the descriptive term "crunch." This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a "crunchberry." Furthermore, the "Crunchberries" depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains "sweetened corn & oat cereal" and that the cereal is "enlarged to show texture." Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist. . . . So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.
First, a disclosure: I hate reality TV. And I never even heard of "Jon & Kate Plus 8", the popular TLC reality series, until a week ago.
Apparently, it is a reality show about Jon and Kate Gosselin, a Pennsylvania husband and wife, as they raise their eight young children, including 8-year-old twins and sextuplets who just turned 5.
An interesting legal question has come up regarding the show (and no, it doesn't have anything to do with their supposed extramarital affairs). Depending on the outcome, it could spell trouble for reality shows in general.
The Pennsylvania Department of Labor says it's looking into whether the hit show "Jon & Kate Plus 8" is complying with the state's child labor law. TLC said Friday it "fully complies" with state laws and regulations.
***
The Labor Department received a complaint against the show and is "gathering information" from its representatives, department spokesman Justin Fleming told The Associated Press. Fleming would not say when the complaint was filed or who filed it.
The fact a complaint is being investigated doesn't necessarily mean the department believes the show did anything wrong.
"Any complaint we get, we investigate," Fleming said.
Here's the legal issue:
Child actors and other young performers are protected by Pennsylvania labor law, but it's not clear whether the law applies to reality TV. Investigators will have to decide whether the Gosselins' house in southeastern Pennsylvania is essentially a TV set where producers direct much of the action — in which case the law may apply — or a home where the kids aren't really working but are simply living their lives, albeit in front of the cameras.
What are the repercussions? Forget about child labor -- that's important as far as the Gosselin kids are concerned, but there are bigger issues than that. Specifically, if it looks like, under the eyes of the law, reality shows are deemed to be "directed", with the "stars" being "employees" rather than, say, "subjects of documentaries", that opens up a whole host of legal issues in the areas of labor and employment law, actors unions, and other matters.
Put another way, this investigation has the potential to expose, if only a little bit, so-called "reality" shows for what they often really are: unscripted yet staged dramas with non-actors. And, I hope, perhaps their popularity might diminish once people realize that what they're watching isn't really "reality".
Today is the day of oral arguments in California Supreme Court, as justices hear challenges to Proposition 8, which passed by citizen vote last election. Prop 8 prohibits gay marriages.
Four of the seven justices were convinced last spring that a prohibition on same-sex marriage violated a "fundamental constitutional right to form a family relationship." But that is not the legal issue here.
Bear with me now. This isn't too complicated.
The central issue is about whether the change to the Constitution was procedurally legal, not whether the gay-marriage ban violates a "constitutional right". Specifically, the justices must determine whether the Prop 8 initiative (which reads in full "Only marriage between a man and a woman is valild or recognized in California") represented an amendment to, or a revision of, the state Constitution.
It was presented to voters as an amendment, which can change the Constitution through the initiative process with a simple-majority vote of the people.
A revision, however, would need to be placed on the ballot with a two-thirds vote of the Legislature. The only other potential avenue for a revision would be for it to arise during a state constitutional convention.
The distinction, in simple terms, is between the tinkering of the constitution (amendment) and an overhaul of its fundamental underpinnings (revision).
Prop 8 opponents (i.e., gay marriage supporters) are making the argument that Prop 8 is (or should have been) a revision, not an amendment. Prop 8 supporters, naturally, are trying to convince the court of the opposite.
So although four of seven justices were opposed to a prohibition on gay marriage, they were "overridden" by the electorate. Now, the justices' task is to determine whether the electorate, as opposed to the Legislature and electorate, had the power to make that change in the first place.
The amendment/revision issue is a different legal question, and the 4-3 split isn't (and shouldn't be) in play. Of course, the amendment/revision issue touches on the whole "fundamental rights" issue, so the opinion is likely to discuss that at length.
In summation:
The pro prop. 8 arguments
This is a constitutional amendment and it was properly filed and approved by voters
It added just 14 words to the constitution and contains no redistribution of powers among the state's branches of government
It's a simple constitutional change by the people in response to a ruling of the California Supreme Court
The against prop. 8 arguments
This was a constitutional revision which was not filed properly -- it should've been approved by a 2/3 vote of the legislature before going to voters.
The court considers gay people a vulnerable class group shouldn't have rights stripped away by a slim majority.
We're a democracy, but a constitutional democracy. There are checks and balances on majority power and the court must protect us all from the tyranny of the majority.
The "alternative" against prop. 8 argument (offered by ACLU and other gay rights groups)
Some natural rights, like marriage, are completely inalienable and the people, by a majority vote, can't take them away from a minority and neither can the government -- by a revision or amendment -- without compelling justification. (This is what the CA Attorney General says and he finds some support in Article I of the California Constitution.)
What the court has already said
Sure, gays are a "suspect" class (that means they've already be subject to discrimination in the past and likely will be again), and the California constitution, through its equal protection clause, guarantees all people the fundamental right to marry.
But a constitutional revision has always been, at least to the court, something that "creates far-reaching changes in our government framework." most, prop. 8 doesn't seem to fit into the category.
The outcome? Your guess is as good as mine, but I tend to think Prop 8 opponents will lose. Prop 8 will not be recognized as a "revision", i.e., something that "creates far-reaching changes in our government framework." The result will be a setback for gay marriage advocates, but rest assured, it won't be the end of the struggle.
The Court is required to issue a decision within 90 days of hearing the arguments, so a same-sex marriage ruling is expected by June.
UPDATE: UMinn law professor Dale Carpenter watched the oral arguments to get a bead on where the justices were going:
I’ll predict without confidence that: (1) the court will hold that Proposition 8 was a valid amendment, but (2) will also hold that the 18,000 same-sex marriages entered between June and November continue to be recognized and valid in California.
It seemed to me that Chief Justice George and Justice Kennard, both in the 4-justice majority in last May’s marriage decision, were quite skeptical of the argument that Prop 8 was a revision requiring prior legislative approval. Maybe they were being devil’s advocates. But losing those two votes, if they’ve been lost, probably means losing on the challenge to Prop 8.
In principle, the justices’ votes on whether there is a right to same-sex marriage and on whether a proposition repealing that right is an amendment, are independent questions. A judge could believe there’s a fundamental right to same-sex marriage but that the state constitution liberally allows amendments by simple majority votes. On the other hand, a judge could believe there’s no fundamental right to same-sex marriage, but think that once the right is recognized, the elimination of a fundamental right for a suspect class is such a monumental act, and is fraught with so many dangers if allowed to stand as a precedent, that it can be accomplished only by revision.
The main hope, such as it remains, for opponents of Prop 8 lies in the recognition of several justices today, including at least one who dissented from last May’s decision, that Prop 8 is unprecedented and thus calls for a new articulation of what constitutes a revision.
He adds:
One more brief note from today’s argument. If it wasn’t clear before today, it is now clear that Attorney General Jerry Brown’s role in the case has not only been unhelpful to the petitioners, but has undermined it. His view is that Prop 8 is an amendment rather than a revision “under existing cases” but that Prop 8 is unconstitutional because it took away a right that is on an unspecified and growing list of “inalienable,” natural rights that can never be taken away by any constitutional change process. Brown thus undermines the petitioners on their strongest argument (the constitutional-procedural one) and offers instead a much weaker one (a constitutional-substantive one). It was plain in oral argument that none of the justices were buying it, and that Brown’s lawyer, given an impossible position to defend, could not defend it.
This op-ed piece in the New York Times reminds me: we can (and should) do something about the Fourth Circuit.
The article is written by Judge Wilkinson, a staunch conservative, and a main driving force that gives the Fourth Circuit the reputation as being the most conservative in the country.
The Fourth Circuit is the federal court of appeals (one court level "below" the U.S. Supreme Court) that presides over Maryland, Virginia, West Virginia and the Carolinas. It, like the other circuit courts are powerful, as this 2003 NYT article states:
Few pay much attention to federal courts below the Supreme Court level. But they should. The appellate courts, created in the late 19th century to relieve overcrowding of the Supreme Court's docket, decide about 28,000 cases a year compared with the highest court's 75 or so. Practically speaking, they have the final say in most matters of law; their reach is broader, if not deeper, than the Supreme Court's itself.
The Fourth Circuit has been damaging, and carries the potential to do more damage:
It pushes the envelope, testing the boundaries of conservative doctrine in the area of, say, reasserting states rights over big government. Sometimes, the Supreme Court reins in the Fourth Circuit, reversing its more experimental decisions, but it also upholds them or leaves them alone to become the law of the land.
Some of the 4th Circuit's best-known rulings, upheld by the Supreme Court, include striking down a law allowing rape victims to sue their attackers in federal court and preventing the Food and Drug Administration from regulating tobacco.
It's no surprise then, that during the Bush administration, the 4th Circuit has been the court of choice on national security, issuing key rulings that backed the government on the detention of enemy combatants and the prosecution of Sept. 11, 2001, conspirator Zacarias Moussaoui.
With four vacancies on our 15-member court, the 4th Circuit may be the best game in town. With the new numbers in the Senate, the temptation is there to go for an ideological makeover.
And naturally, he doesn't want to see that happen.
On one level, he is correct. The courts should not be full of ideologues. But in making that comment, Wilkinson has a blind spot to his own ideological makeup.
He's not going anywhere. But with Obama in office, and a Democrat-controlled Congress, now is the time to provide, not an ideological "makeover", but an ideological course correction to a more balanced Fourth Circuit.
As chief judge of the Fourth Circuit during the Clinton Administration, Wilkinson repeatedly made statements claiming that the Senate should not confirm any Clinton nominees to that court because it would reduce the court's "collegiality." He immediately ceased his objections when Bush took the oath of office.
Now, on the third day of the Obama Administration, Wilkinson warns that President Obama better not nominate any judges who don't agree with Judge J. Harvie Wilkinson. I'd like to know who he thinks he's fooling.
It came up in a conversation I had the other day: the lady who sued McDonald's because her coffee was too hot. It's always the example tossed out by people whenever there is a discussion about frivilous lawsuits.
Now, there are frivilous lawsuits filed everday. But the McDonald's Hot Coffee Lawsuit is not a very good example.
Here's what most people know about the case:
Women gets McDonald's coffee from drive-thru window
She spills it on herself; OW, it burns!
She sues McDonalds
She wins at trial
Ok. That's an accurate summary of the facts. But it's woefully incomplete.
The thing people need to focus on is #4. She won. That should be a clue that there's more than what meets the eye. Why did she win? Was the jury of twelve people comprised of total idiots? Was the judge a moron?
In reality, when the jury was selected, all they knew before the trial was #1, #2, and #3. To many of them at the time, it seemed like a pretty straightforward case in McDonald's favor. So what happened between jury selection and verdict time?
Well, the evidence came out. ALL the evidence.
Consider: The victim -- Mrs. Stella Liebeck of Albuquerque, New Mexico (age 79) -- did not do anything unusual to contribute to her injuries. She was a passenger in her grandson's car. She ordered the coffee. It came in a styrofoam cup. She placed it between her legs, so she could open the lid and put in cream and sugar. The coffee spilled.
Oh, her injuries? Well, the coffee seeped through her sweatpants. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body,
including her inner thighs, perineum, buttocks, and genital and groin
areas. She was hospitalized for eight days, during which time she
underwent skin grafting. Liebeck also underwent debridement
treatments.
Put bluntly, the coffee literally burned a grandmother's genitals off..... through her clothes.
So, by now you're wondering one of two things: Either Mrs. Liebeck's genitalia/legs/etc were made of tissue paper.... or maybe, just maybe, something was unusual about the coffee.
And now we get to the heart of the matter -- the thing most people aren't aware of.
The McDonald's coffee wasn't merely "hot"; it was scalding.
McDonalds (at that time) served its coffee 50-60 degrees hotter than that of normal coffee served in your house or breakroom. Its temperatures ranged as high as 190 degrees.
Now, the thing about liquids is, if you lower the temperature, the effect of burns reduces exponentially. In other words, liquids at 180 degrees would give full thickness burns to human skin in two to seven seconds. But liquids at 155 degrees? Not nearly as bad.
In other words, if Mrs. Liebeck's coffee was 155 degrees -- still much hotter than home or office coffee (and about the temperature that other fast food places serve coffee) -- and she had spilled it? Yeah, it would have hurt. Anything over 140 degrees is a burn hazard. But it wouldn't have gone through her sweatpants and burned off her hoo-ha.
Another important point: this wasn't a one-time event. This wasn't a McDonald's worker who strayed from McDonald's coffee prep techniques. No. McDonald's coffee was served at 180-190 degrees as a matter of policy.
So, while reasonable people would expect hot coffee (and McD's, at that time, did have a "hot" warning on the coffee cups), they certainly weren't expecting coffee that hot. And, reasonably, McDonalds owed a duty to its patrons to warn them -- not of the obvious ("the coffee will be hot") -- but of the not-obvious ("no, we mean much much hotter than you would think, people").
McDonald's food quality people testified that they knew the coffee was being served at scalding temperatures. They knew that it was being served at temperatures higher than other fast food places and coffee shops. It was a planned, discussed, and implemented executive decision to do that.
And they knew that many of their customers probably didn't realize that their coffee was going to be that much hotter. But they didn't give thought to repercussions.
Even when people started complaining that the coffee was burning their mouths, they didn't do anything.
So, in that light, the McDonald's Hot Coffee Lawsuit wasn't frivilous. Yes, everybody knows that coffee from a fast-food place will be hot. But I wonder how many people (back in 1992, when this happened) knew that McDonald's coffee was that much hotter, or knew the consequences of it being that much hotter? Probably not many. But McDonald's knew, and certainly had an obligation -- legal, if not moral -- to warn its customers.
I'm not the slightest bit put off that Mrs. Liebeck sued. She had a legitimate -- not "frivilous" -- complaint.
And I'm not surprised the jurors found in the her favor.
(Needless to say, McDonald's coffee, while still very hot, isn't served at 190 degrees anymore)
The Office Of Legal Counsel is an important executive position. The OLC gives legal advice to the president and, by extension, the executive branch. Among other things, it informs the CIA and the Department of Interior what it judges to be permissible under the laws, and its opinions are binding.
Most people had never heard of the OLC before the Bush Administration. Then along came John Yoo, Bush's head of the OLC. Yoo, rather than presenting the law, used the office to find ways to skirt the law*. His so-called, now infamous, "torture memos" -- which gave legal approval to waterboarding and other torture techniques -- will go down in history as some of the most awkwardly strained legal reasoning ever put to paper.
Dawn Johnsen, Professor of Law at the Indiana University School of Law, had this to say about Yoo's memos:
"The Torture Opinion is an easy target for criticism, an extreme example of poor lawyering. A strong case can be made that the Opinion does not meet the professional standards that define any transactional attorney's ethical obligations in advising a client."
She added:
"That the President should premise his actions on the administration's best - and not merely plausible - interpretations of the relevant law is a relatively uncontroversial principle, at least as a theoretical matter. (...) Measured by this standard, the Torture Opinion utterly fails."
Johnsen believed not just that the torture memos were badly argued, but that many of the interrogation practices they licensed are in fact illegal:
"The Torture Opinion focuses exclusively on just one statutory prohibition, which could give the impression that interrogations that fall just short of the Opinion's narrow interpretation of torture are not unlawful. In fact, several other laws further prohibit coercive forms of interrogation that would fail to meet even a broad definition of torture. The soldiers who committed the Abu Ghraib abuses, for example, were subject not only to the limits of the federal anti-torture statute, but also to far more extensive restrictions contained in the Uniform Code of Military Justice (UCMJ), most notably prohibitions against cruelty, oppression, or maltreatment of a detainee. The anti-torture statute itself implements a treaty that prohibits "cruel, inhuman and degrading treatment." A final example: Common Article 3 of the Geneva Conventions goes far beyond torture and prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." At the time of the Torture Opinion's issuance, violations of Common Article 3 were punishable war crimes under federal law."
And finally, this is what she had to say on the Bush Administration's (mis)use of the OLC in general:
"The proposition that the President's own legal advisors can provide an effective constraint on unlawful action understandably engenders a high degree of skepticism - especially in light of recent events. One of President Bush's legacies undoubtedly will be the deepening of Americans' cynicism about presidential adherence to the rule of law. The Bush Administration, however, also provides some evidence to the contrary, for example, in the resistance to advice given by the U.S. Department of Justice's Office of Legal Counsel (OLC) regarding torture from lawyers and other advisors elsewhere in the executive branch and later from within OLC itself. Internal checks alone, of course, are insufficient. But we debase our commitment to democracy and justice if we do not view legal advice from within the executive branch as an essential component of efforts to safeguard civil liberties, the constitutional allocation of governmental authority, and the rule of law. We invite failure if we allow our cynicism to excuse presidential abuses as simply expected - in effect relieving Presidents (and those who serve them) of their obligation to take care that the laws be faithfully executed, as the U.S. Constitution commands."
* Interesting thing about Bush's law-men, John Yoo and John Bolton. After years of advocating unbridled executive power, they suddenly think that presidential power should be limited, and Congress and the Court should act as a guiding counterbalances.
Bolton and Yoo believe -- get this -- the president should have less authority and discretion when it comes to international affairs.
The Constitution's Treaty Clause has long been seen, rightly, as a bulwark against presidential inclinations to lock the United States into unwise foreign commitments. The clause will likely be tested by Barack Obama's administration, as the new president and Secretary of State-designate Hillary Clinton, led by the legal academics in whose circles they have long traveled, contemplate binding down American power and interests in a dense web of treaties and international bureaucracies.
Like past presidents, Mr. Obama will likely be tempted to avoid the requirement that treaties must be approved by two-thirds of the Senate.... By insisting on the proper constitutional process for treaty-making, Republicans can join Mr. Obama in advancing a bipartisan foreign policy. They can also help strike the proper balance between the legislative and executive branches that so many have called for in recent years.
Reading this, I had to double check to make sure we were talking about the same Bolton and Yoo. After all, John Yoo has spent most of the last eight years arguing that the president has an unfettered power to do as he pleases on the international stage. Indeed, Yoo argued that the president can literally ignore any law he chooses -- including the Constitution -- if he decides it's in the nation's interests.
But that was then. Now Yoo is worried about executive overreach. Now Yoo wants every letter of the Constitution to be respected and adhered to without exception...
The economic storm has come to this: Justice is being delayed or disrupted in state courtrooms across the country.
Financially strapped New Hampshire has become a poster child for the problem. Among other cost-cutting measures, state courts will halt for a month all civil and criminal jury trials early next year to save $73,000 in jurors' per diems. Officials warn they may add another four-week suspension.
"It brings our system almost to a screeching halt," said county prosecutor James M. Reams. His aides are scrambling to reschedule 77 criminal trials that were on the February docket.
Perhaps it saves $73,000 in jurors' per diems, but I imagine a lot of those savings will be eaten up by having to house criminals an extra month in prison.
Then again, if they do it in January and February, I'll bet they save a bundle on heating costs for the courthouses.
When it comes to how they will vote in November, Republican voters say that the type of Supreme Court Justices a candidate would appoint is more important than the War in Iraq. The latest Rasmussen Reports national telephone survey found that 44% of Republicans pick the economy as the top voting issue, 30% name judicial appointments, and just 19% pick the War in Iraq. . . . Just 7% of Democrats name judicial appointments as the most important of those issues.
We'll assume the premise that this means that conservatives care more about the courts than liberals.
But why is this so?
It is because, Kerr opines, social conservatives see the Supreme Court as a barrier to the political process. If you look at the hot-button issues of the past several decades -- civil rights, abortion, flag-burning, etc., a court victory for the liberal side essentially takes the controversy out of the political realm -- whereas a court victory for the conservative side leaves it in the political realm, where social conservatives believe they have a fighting chance. And court victories for the conservative side don't seem to happen much:
It's partly loss aversion, I suspect, and partly the fact that constitutional decisions are much harder to reverse than legislative ones. Whatever the precise reasons, the cumulative experience of this happening year after year, Term after Term, starts to really hurt. It becomes a sore point, a raw wound. I think that goes a long way towards explaining why conservatives care significantly more about the courts.
I think that's a reasonable thesis, and one to which many people could probably subscribe.
However, Kerr is lending credence to the fallacious notion that when courts decide a matter on a constitutional basis, they remove the controversy from the political realm. Or, as the typical layman say whenever a court strikes down a law as violating, say, the First Amendment, "Tsk! The court is legislating from the bench".
This always infuriates me, for this reason: the people, through their representative legislatures, created the constitution through the political process (including, in my example, the First Amendment) and gave the court the power to strike down unconstitutional laws.
So while it is true that school prayer or segregation, say, weren't put to the ballot box, the First Amendment and the Fourteenth Amendment were (i.e., they were ratified by the peoples' representatives). And the Articles of the Constitution (also ratified by political process) give the courts the power to strike down laws which are unconstitutional.
I think the better explanation of why conservatives are interested in the courts is because, at least where social conservative lies, courts are better suited to compel the behavior of others, and "get at" the individual rights and behavior of others.
The decision to have an abortion, gay marry, use contraception, or pray in school -- these are all things which individuals can do or not do, as they see fit; in other words, nothing inherently compels an individual to do those activities, or refrain from doing those activities. But a favorable court decision can, for example, prohibit an abortion, nullify a gay marriage, ban contraception use, or compel prayer in school. It ends the public debate about the issue.
In short, I think conservatives, at least social/religious conservatives, care more about the courts, because the courts, following the Constitution, tend to preserve and promote individual liberties which don't prescribe to some of the homogenous viewpoints of social/religious conservatives. It's a control thing, basically.
Already Obama is gearing up to reverse the Bush position with respect to Gitmo detainees. Unlike Bush, who doesn't believe in the right to a speedy and fair trial is part of those God-given rights that we hold to be self-evident, Obama is...
...quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice.
It's "controversial" because nobody knows exactly what that "new system of justice" will look like. But still, at least it is ostensibly a system of justice -- one that is more transparent -- which is far more preferable than what Bush did (leaving the Gitmo detainees to sit there for years, sometimes without even charging them, much less convicting them, of any crime).
Even the Supreme Court this year, in Boumediene v. Bush, shot down Bush administration’s practice of holding terrorism suspects at Guantanamo Bay in indefinite detention. The Bush administration had argued to the court that Gitmo is a "law free zone".
Nice, huh?
I mean, some of these guys may be innocent. For example, while we were all focused on the election last week, government prosecutors were quietly dropping some of the charges against some of the detainees.
So this move by Obama is a good thing, although, as the AP article suggests, it's not without its share of legal landmines. More to come, I'm sure.
Hyped by a Drudge article, the conservative websites and the McCain campaign are attacking Obama over this, a radio interview on September 6, 2001, by then state legislator Barack Obama. You can hear a heavily edited version on Youtube (this is what the conservatives are drooling over, but if you click on my first link, you'll see access to the entire interview).
According to the conservative spin, Obama said that it was a "tragedy" that the Warren Court didn't engage in redistribution of wealth. Of course, Obama said no such thing. Here is what he said -- and I apologize if it is dry reading -- but Obama was clearly in law professor/wonk mode:
You know, if you look at the victories and failures of the civil-rights movement, and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it, I’d be okay, but the Supreme Court never entered into the issues of redistribution of wealth, and sort of more basic issues of political and economic justice in this society.
And uh, to that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution — at least as it’s been interpreted, and Warren Court interpreted it in the same way, that generally the Constitution is a charter of negative liberties: [It] says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.
And that hasn’t shifted, and one of the, I think, the tragedies of the civil-rights movement was because the civil-rights movement became so court-focused, uh, I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And in some ways we still suffer from that.
A caller then asks: “The gentleman made the point that the Warren Court wasn’t terribly radical. My question is (with economic changes)… my question is, is it too late for that kind of reparative work, economically, and is that the appropriate place for reparative economic work to change place?”
Obama replies:
You know, I’m not optimistic about bringing about major redistributive change through the courts. The institution just isn’t structured that way. [snip] You start getting into all sorts of separation of powers issues, you know, in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time. You know, the court is just not very good at it, and politically, it’s just very hard to legitimize opinions from the court in that regard.
So I think that, although you can craft theoretical justifications for it, legally, you know, I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts.”
Now, I've highlighted some hey parts of the interview. They are the same parts that conservatives are focusing on. The thing is, in no way did Obama say that it was a tragedy the Supreme Court under Earl Warren never engaged in "resdistribution of wealth" changes.
What Obama said was a fact -- that the Warren Court never entered into the issues of redistribution of wealth.
He then followed it with an opinion about the civil rights movement -- i.e., that it was a tragedy that the civil rights movement became so court-focused. It's a tragedy because that's not where you go to address economic disparity issues.
Obama reinforces that point again in response to the caller, saying (again) that he's not optimistic about trying to bring redistributive changes through the courts because it violates separation of powers, etc.
The bottom line? Obama was saying that redistribution of wealth cannot -- constitutionally -- be brought about through the judicial system. And it is wrong (indeed, "tragic", in the case of the civil rights movement) to even try.
In other words, hHe's saying that judges will not -- and should not -- legislate economic redistibrution from the bench.
What's so controversial about that?
Nothing.
As Obama campaign spokesman Bill Burton says:
Make no mistake, this has nothing to do with Obama’s economic plan or his plan to give the middle class a tax cut. It’s just another distraction from an increasingly desperate McCain campaign.... In the interview, Obama went into extensive detail to explain why the courts should not get into that business of 'redistributing' wealth. Obama’s point – and what he called a tragedy – was that legal victories in the Civil Rights led too many people to rely on the courts to change society for the better. That view is shared by conservative judges and legal scholars across the country.
But if you cherry-pick the interview, and match of the word "tragic" with other points Obama was making, then (so the Republicans hope) you've ginned up a controversy.
That's how desparate the McCain campaign is. Manufacturing fake controversies from an interview given (which speaks for itself) eight years ago.
UPDATE:Professor Bernstein summarizes the entire Obama interview, and explains (as I tried to do) that Obama was actually articulating judicial conservativsm as a proper dead-end avenue to social change/wealth redistribution. bernstein's bottom line: this is hardly anything for conservatives to get breathless about.
The core attribute of the Justice Department is independence, not allegiance to the President as "client." The President has his own lawyers in the White House Counsel's Office. The Attorney General is not and never was one of those lawyers. To the contrary, the Attorney General represents the people of the United States -- if he has any "client," that's who it is -- and is often required to take positions and actions adverse to the President. Few things could subvert -- and have subverted -- the American justice system more than thinking of the President as being the "client" of the Attorney General.
This all used to be so basic. But the belief that the DOJ exists to advance the interests and wishes of the President has become a central premise of how our Government now works. The Justice Department has been transformed into but another cog in the instruments of Government that protect and serve the President. And that transformation isn't unique to Alberto Gonzales (who, during a CNN interview while Attorney General, actually referred to Bush as "my client"), as The Washington Post's Dan Froomkin pointed out yesterday:
Michael Mukasey has President Bush's back.
Mukasey succeeded toady Alberto Gonzales as attorney general last fall. But the notion that he would restore independence to that post took a big hit yesterday when he refused to turn over to a House committee key documents related to the CIA leak investigation.
This isn't just ranting for the sake of ranting. The people who think they work for Bush literally have no idea who they seem to actually work for or what their allegience is to, even though it's spelled out in their oath.
Exhibit A from last year -- former White House official Sara Taylor actually went before the Senate and testified that she understood that she took an oath when she went to the White House that was "an oath to the President":
Hi, guys. It's quite obvious, looking at you, why you are unable to have sex with an actual living girl....
And I know, man. We've all been there, especially at the awkward pimply face age.
But, I gotta tell you, digging up girls to have sex with? So, not cool.
Their intended victim was a 20 year old nursing assistant who was killed in a motorcycle accident. That's a tragedy as it is, but the story gets even more twisted....
A few days after Tennessen's death, three Wisconsin men spotted her obituary, and obviously found her quite attractive, and decided to dig up Tennessen's body to have sex with her. Nicholas Grunke ( son of a Methodist minister), his twin brother Alex, and their friend Dustin Radke all plotted this disgusting act.
Police said the three Wisconsin men were carrying shovels, a crowbar, and a box of condoms to the cemetary to dig up the dead body of Laura Tennessen, who had died the week before in the motorcycle wreck.
Nicholas Grunke had viewed her photo in the obituary and asked his brother and friend to aid in helping dig up her corpse so that he could have sexual intercourse with it.
The three guys used shovels to reach her grave, but were not able to pry open the vault. After seeing the abandoned car, police questioned Alex Grunke, who was acting very nervous, and he admitted to police the scheme, and that his cohorts were digging up Tennessen's coffin.
Now, the reason I write about this, aside from my natural moral outrage, is because of the legal aspects of it.
It seems that Wisconsin (where these events took place) has no law against necrophilia. So what's a prosecutor to do?
Well, curious about the legal aspects of this case (which the media only glazed over), I perused the recent opinion (pdf).
The State of Wisconsin charged the young men with (a) attempted theft and (b) attempted third degree sexual assault. They were convicted of attempted theft (which carries a light penalty), so let's forget about that.
As to the other more serious charge (attempted third degree sexual assault), the trial court dismissed it, holding that it does not apply when the intended victim is deceased.
On appeal, the Wisconsin Court of Appeals affirmed. The higher court noted that, under the statute, sexual assault (or attempts thereof) is a crime if the victim does not give consent to sex. But the statute also says that "consent is not an issue" in certain circumstances. For example, if the victim is unconscious or mentally impaired or intoxicated, lack of consent by the victim is presumed. Unfortunately, being dead was not listed as one of those circumstances where lack of consent is presumed.
Confounding the analysis is another part of the statute which says that the "entire statute" applies regardless of whether the victim is dead or alive at the time of the attempted sexual contact.
A bit confusing? Yeah, that's what the Court of Appeals thought. But they came to the conclusion that the crime of sexual assault -- while obviously applicable to assaults and attempted assaults on living victims -- can be applied to dead people in only one circumstance: when the victim becomes deceased as the result of the sexual assault. And that's not what happened here (Ms. Tennessen was already dead. And buried).
So the case gets appealed to Wisconsin Superior Court, the highest court of the state.
They got it right.
They said the statute wasn't ambiguous. Like the courts below it, the Wisconsin Superior Court said that being dead isn't one of those circumstances (like being unconscious) where lack of consent is presumed.
But what does that mean? Here, the Wisconsin Superior Court differed from the lower courts. Since the exception doesn't apply and we can't presume lack of consent automatically, all that means is that the State has to prove (beyond a reasonable doubt) that the victim didn't give consent. In this particular situation, where the victim couldn't have given consent because she's, well, several weeks dead, the State has a pretty easy job of proving "lack of consent". But just because something is easy to prove, doesn't make the statute ambiguous.
Interestingly, two justices dissented. They just thought that the legislature, when it drafted the statute, didn't intend it to cover necrophilia.
(Side note: since this case came down the pike, Wisconsin now has a specific necrophilia statute. But it can't be applied retroactively, since that would be unconstitutional.)
Via Volokh, an interesting case (pdf) from Texas involving the exorcism of demons from a teenage girl:
On Friday evening, before her parents left town, Laura [Schubert, a 17-year-old congregant,] attended a youth group activity at Pleasant Glade in preparation for a garage sale the next day. The atmosphere during this event became spiritually charged after one of the youth announced he had seen a demon near the sanctuary. The youth minister, Rod Linzay, thereupon called the group together to hear the story, and after hearing it, agreed that demons were indeed present. Linzay instructed the youth to anoint everything in the church with holy oil and led a spirited effort throughout the night to cast out the demons. Finally, on Saturday morning at about 4:30 a.m., Linzay gathered the exhausted youth together to announce that he had seen a cloud of the presence of God fill the church and that God had revealed a vision to him. Although exhausted, the young people assisted with the garage sale later that morning.
At the Sunday morning worship service the next day, several young people gave testimonials about the spiritual events of the preceding day. At the conclusion of the service, the youth, including Laura and her brother, prayed at the altar. During these prayers, Laura’s brother became "slain in the spirit," collapsing to the floor where church members continued to pray into the early afternoon.
Later that afternoon, Laura returned to church for another youth activity and the Sunday evening worship service. During the evening service, Laura collapsed. After her collapse, several church members took Laura to a classroom where they "laid hands" on her and prayed. According to Laura, church members forcibly held her arms crossed over her chest, despite her demands to be freed. According to those present, Laura clenched her fists, gritted her teeth, foamed at the mouth, made guttural noises, cried, yelled, kicked, sweated, and hallucinated. The parties sharply dispute whether these actions were the cause or the result of her physical restraint.
Church members, moreover, disagreed about whether Laura’s actions were a ploy for attention or the result of spiritual activity. Laura stated during the episode that Satan or demons were trying to get her. After the episode, Laura also allegedly began telling other church members about a "vision." Yet, her collapse and subsequent reaction to being restrained may also have been the result of fatigue and hypoglycemia. Laura had not eaten anything substantive that day and had missed sleep because of the spiritual activities that weekend. Whatever the cause, Laura was eventually released after she calmed down and complied with requests to say the name "Jesus."
On Monday and Tuesday, Laura continued to participate in church-related activities without any problems, raising money for Vacation Bible School and preparing for youth drama productions. Her parents returned from their trip on Tuesday afternoon.
On Wednesday evening, Laura attended the weekly youth service presided by Rod Linzay. According to Linzay, Laura began to act in a manner similar to the Sunday evening episode. Laura testified that she curled up into a fetal position because she wanted to be left alone. Church members, however, took her unusual posture as a sign of distress. At some point, Laura collapsed and writhed on the floor. Again, there is conflicting evidence about whether Laura’s actions were the cause or result of being physically restrained by church members and about the duration and force of the restraint. According to Laura, the youth, under the direction of Linzay and his wife, Holly, held her down. Laura testified, moreover, that she was held in a "spread eagle" position with several youth members holding down her arms and legs. The church’s senior pastor, Lloyd McCutchen, was summoned to the youth hall where he played a tape of pacifying music, placed his hand on Laura’s forehead, and prayed. During the incident, Laura suffered carpet burns, a scrape on her back, and bruises on her wrists and shoulders. Laura’s parents were subsequently called to the church. After collecting their daughter, the Schuberts took her out for a meal and then home. Laura did not mention her scrapes and bruises to her parents that night.
The girl's family eventually sued the church for false imprisonment, infliction of emotional distress, and assault...
claiming that she was involuntarily restrained, and that this caused a wide range of emotional distress damages: "angry outbursts, weight loss, sleeplessness, nightmares, hallucinations, self-mutilation, fear of abandonment, and agoraphobia. Despite the psychiatric counseling, Laura became increasingly depressed and suicidal, eventually dropping out of her senior year of high school and abandoning her former plan to attend Bible College and pursue missionary work. Finally, in November 1996, Laura was diagnosed as suffering from post-traumatic stress disorder, which the doctors associated with her physical restraint at the church in June 1996. One of the expert witnesses at trial testified that Laura would 'require extensive time to recover trust in authorities, spiritual leaders, and her life-long religious faith.' Ultimately, Laura was classified as disabled by the Social Security Administration and began drawing a monthly disability check."
The jury found found for the girl and awarded her $300,000 in damages.
But the Texas Supreme Court has reversed, on the grounds that emotional distress liability (as opposed to liability for physical injuries as such, which were apparently very slight, and for which Schubert apparently didn't claim any damages) was unconstitutional.
Their problem?
The jury was given instructions by the trial court that they should view what happened through the lens of a secular act in a secular setting. The Supreme Court of Texas disagreed, and said that the "laying of hands", the act upon which the lawsuit was predicated, was "normal" for that setting and that church, and therefore restraining the girl, even it was unwanted by her, was not actionable (at least as to emotional dammage).
Like Volokh, I disagree. It's quite simple. She didn't want to be restrained (or so the jury believed), and that's false imprisonment. End of story.
That aside, I'm startled to find this kind of thing still going on in the 21st century.
"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.
The falsity of the standard story about the song demonstrates the dangers of relying on anecdotes without thorough research and analysis. It also reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright.
This is the kind of thing that makes my blood boil:
For the second time in two months, an innocent man is being released from North Carolina's death row. Levon "Bo" Jones spent 13 years on death row after being convicted of the 1987 murder of Leamon Grady. Federal judge Terrence Boyle vacated Jones' conviction and death sentence in 2006 after finding that Jones' trial attorneys "utterly failed" to investigate the crime. (Read the Order here.) Duplin County District Attorney Dewey Hudson, who tried Jones in 1993, vowed to retry the case. This week Hudson was forced to admit that he has no evidence against Jones, and is expected to ask the court to release Jones today.
From his appointment until a month before trial, Jones' lead counsel - Graham Phillips - did virtually no work on the case. According to the District Court's opinion, Phillips "interviewed no witnesses, filed no motions, sought no evaluation of Jones, and conducted no mitigation investigation." Phillips did not even request the second counsel to which Jones was constitutionally entitled. The second lawyer, Charles Henderson, was appointed only upon the request of the District Attorney, less than a month before trial.
There was no physical evidence against Jones, and no eyewitnesses to the shooting. The State's star witness, Lovely Lorden, was Jones ex-girlfriend. Although counsel's strategy for the trial was to discredit Lorden's testimony, they never interviewed her. Had counsel bothered to run a simple criminal record check, they would have discovered that Lorden had a number of convictions relevant to her truthfulness, including fraud and worthless checks. Counsel also failed to obtain all of Lorden's statements to police, which were inconsistent with one another and with her testimony on the stand. Finally, counsel did not investigate Lorden's history of mental health problems. Counsel failed to cross-examine Lorden about what she claimed to have seen, instead questioning her mainly about the paternity of her children.
Counsel never bothered to review the District Attorney's file in the case, which contained evidence pointing to the guilt of another man. Allen Bizzell, who along with George Overton led police to Grady's body, gave four very different statements to police. At first he said that he and Overton left work at 3 AM to buy beer for their boss from Grady. Then he claimed that Overton left work alone and returned ten minutes later with a six-pack he had stolen from Grady. Next Bizzell claimed that Overton left alone and returned acting strangely and asking Bizzell to tell the police that he had accompanied Overton to Grady's house. FInally, Bizzell told police that Overton returned to work and told him that Grady had been killed, but suggested that they go to his house and "roll" him before calling the police. Overton, too, told different stories to police. He left town shortly after the murder, but was arrested within a week for rape.
From the District Attorney's files, counsel could also have learned that Lovely Lorden changed her story about who accompanied Jones to Grady's house that night. At first she identified Larry Lamb and "Tootie" Matthews as Jones' accomplices. When it was revealed that "Tootie" had an airtight alibi, Lorden shifted her testimony to blame Tootie's brother, Ernest Matthews. Across five statements, Lorden also changed her mind about the color of the car Jones was allegedly driving, how many shots were fired, what time the accomplices were picked up, and where else they went that night.
In April, Jones' attorneys provided the court with an affidavit from Lovely Lorden in which she states, "Much of what I testified to was simply not true." She further asserts that a detective coached her on what to say at Jones' trial. Had trial counsel looked in the prosecutor's file, they would have found an SBI surveillance tape of a conversation between Lovely Lorden and Larry Lamb, in which Lorden stated that the police were hassling her about the Grady murder and that she wanted to come up with a plan to save herself and Lamb. Lamb repeatedly denied any involvement in the murder.
Based on Lorden's testimony, Larry Lamb is now serving life in prison. Ernest Matthews pleaded guilty to second-degree murder and was released in 2001.
The Governor's Office paid Lorden $4000 for her testimony. Will it pay Bo Jones for the 13 years she cost him?
Can you imagine if punishment against Mr. Jones had been swift, and he had been executed within a year of his conviction?
Music and lyrics by Stephen Sondheim and book by Burt Shevelove and Larry Gelbart
May 4-6 & 10-13, 2012
Shows are Thursday-Saturday at 8pm and Sundays at 2pm
Perhaps Broadway’s greatest farce, this show is light, fast-paced, witty, irreverent and one of the funniest musicals ever written. It provides the perfect escape from life's troubles. The result is a non-stop laugh-fest in which a crafty slave tries to gain his freedom as a reward for his struggles to win the hand of a beautiful but slow-witted courtesan for his young master.
CAST OF CHARACTERS
Pseudolus - Ken Ashford
Hysterium - Gray Smith
Senex - Miles Stanley
Domina - Christine Gorelick
Hero - Charlie Kluttz
Philia - Gracey Falk
Erronius - Lee McKusick
Miles Glorisosus - Mike Orsillo
Marcus Lycus - Neil Shepherd
Proteans - Justin Bulla, Josh Gerry, Bradley Phillis, Jacob Weinberg
Courtesans - Angela Brady, Ashley Howe, Sarah Jenkins, Natalie Juran, Scarlet Van Loon, Mary Lea Williams
Much Ado About Nothing
by William Shakespeare
FREE at MILLER PARK AMPHITHEATRE May 19, 20, 26, 27 and June 2, 3 at 1:00 and 4:00 pm (no 4:00 pm on June 3)
Onje of Shakespeare's most-cherished comedies. Benedick and Beatrice are engaged in a very "merry war"; they both talk a mile a minute and proclaim their scorn for love, marriage, and each other. In contrast, Claudio and Hero are sweet young people who are rendered practically speechless by their love for one another. By means of "noting" (which sounds the same as "nothing," and which is gossip, rumour, and overhearing), Benedick and Beatrice are tricked into confessing their love for each other, and Claudio is tricked into rejecting Hero at the altar. However, Dogberry, a Constable who is a master of malapropisms, discovers the evil trickery of the villain, Don John.
CAST OF CHARACTERS
Benedick - Chad Edwards
Beatrice - Sally Meehan
Don Pedro - Mark March
Claudio - Carlos Luis Nieto
Hero - Devon Currie
Leonato - John Shea
Don J - Annie Weir
Margaret - Robyn Shute
Antonio - Lee Willard
Balthasar - Suzanne Vaughan
Borachio - Ken Ashford
Conrade - Rob Taylor
Friar Frances - Linda Minney
Dogberry - April Marshall
Verges - Sarah Jenkins
Sexton - Andrea Rivers
Messenger - Ryan Ball
Boy - Ben Taylor
Watch - True Jones and others TBA
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