"There are three sides to every story: your side, their side, and the truth."
- Old Vorlon saying
You may remember the post-Katrina horror stories that came out of the Saint Rita's Nursing Home outside of New Orleans. The owners ignored orders to evacuate, thinking they could ride out the storm in safety. They were wrong. Trapped in the storm surge, at least 34 of the home's elderly residents were killed. Louisiana authorities have charged the owners with 34 counts of negligent homicide. But as today's USA Today cover story points out, the entire picture of what happened at St. Rita's is just beginning to emerge. A tragedy? Definitely. The result of a criminal act? It's not looking like it.
Tuesday, November 29, 2005
"There are three sides to every story: your side, their side, and the truth."
Last month I noted that the cancellation of The Simple Life had me questioning the non-existence of God. Well, apparently that crisis of non-faith has been resolved. E! picked the series up for 10 new episodes. Imagine my lack of enthusiasm.
Posted by JD Byrne at 6:19 PM
Monday, November 28, 2005
What does that all mean? Who knows.
Posted by JD Byrne at 10:24 PM
Over at Crime & Federalism, Mike has a disturbing post about the odds of success on appeal for various kinds of cases. According to Mike's source, the national average of reversals in US Courts of Appeals in 2002 was 9.5%. From criminal cases, that number drops to 5.6%. Or, in another way of putting it, your chances of success in a crimnial appeal are 1 in 18. And that's an average - I can't imagine what it's like in the Fourth Circuit.
In some ways, those number are frightening in that my clients have so little chance of success that I best not screw up whatever hope they might have. On the other hand, their also somewhat comforting, 'cause it means that no matter how skillfully I advocate in a particular case I stand a slim slim chance of winning.
Posted by JD Byrne at 7:06 PM
One of the recurring themes of the right is that the Founders were inherently religious and would be shocked and appalled by the modern interpretation of the First Amendment's religion clauses. As this fairly exhaustive article from Mother Jones points out, that's pretty much BS.
Posted by JD Byrne at 7:01 PM
My brother sells drugs for a living. Cool your jets - he sells perfectly legal ones to doctors on behalf of one of the smaller pharmaceutical companies. Which made this story in today's New York Times jump out at me. It talks about how the drug companies are increasingly recruiting sales people from the ranks of college cheerleaders:
Anyone who has seen the parade of sales representatives through a doctor's waiting room has probably noticed that they are frequently female and invariably good looking. Less recognized is the fact that a good many are recruited from the cheerleading ranks.Well, my brother is certainly not female or an ex-cheerleader (that I know of, at least), and I can't bring myself to say he's good looking, either (of course, I sort of look like him, so what does that say about me?). I guess that just means he has to work all that much harder. :)
Posted by JD Byrne at 6:57 PM
After a false start last month, the trial of Saddam Hussein got underway in earnest this morning in Baghdad - and promptly adjourned until next week. The only piece of evidence introduced so far was the videotaped testimony of the man who investigated the 1982 massacre that is the subject of this particular set of charges against Saddam. He testified via video taken before his recent death. The details aren't clear, but I wonder what type of video it was. Was it a simple statement by this man, or was it a full-fledged video deposition, complete with cross-examination? If the former, is that really a good way to get Saddam's trial started (one wonders if he's familiar with Crawford)? I know Iraqi justice isn't necessarily American justice, but unconfronted witnesses testifying from beyond the grave should give anybody pause.
Posted by JD Byrne at 6:48 PM
Over the long holiday weekend, I had a grand plan to do a major redesign here at the Ranch. Part one was to seriously expand my links section. Part two was to change the look of the blog. As you can see if you glance to your right, part one came off without a hitch. Some of those links are other blogs (or blawgs, if you will), others are good ol' fashioned Web sites. Either way, they are regular reads of mine and so I recommend them, at least to some degree. Part two, as you have no doubt also noticed, did not take place. I was too gun shy to change anything for fear of losing all the work I did for part one. Guess I should have reversed the order.
Oh well, on to bigger and better things!
Posted by JD Byrne at 6:43 PM
Tuesday, November 22, 2005
Death penalty opponents often point to the growing number of people freed from death row as evidence of the fact that the system is fatally flawed. Supporters frequently fire back that death row exonerations are actually a sign that the system does work and that no innocent person has ever been wrongly executed, at least since executions restarted in the 1970s. I've always been dubious of that claim - if hundreds of people have been wrongly convicted and managed to hold on long enough to be exonerated, surely someone has gone to their death for a crime they did not commit.
Well, the Houston Chronicle has found one. Ruben Cantu was convicted in a shooting that left one mad dead and another seriously wounded in 1984. He was executed in 1993, constantly protesting his innocence. In two stories that ran earlier this week, the Chronicle shows how Cantu was almost certainly innocent. The only eyewitness to the crime (the second victim) has recanted, and Cantu's alleged codefendant recently revealed that Cantu wasn't involved in the shooting at all. The codefendant escaped execution by pleading guilty and testifying against Cantu at trial. In other words, the guy who actually did it snitched on an innocent man and sent him to his death.
There are many reasons to scrap the death penalty completely on moral, ethical, and policy grounds. But first and foremost, shouldn't we be sure that we actually get it right when someone pays the ultimate penalty? If we can't even assure that the right people get executed, it makes a mockery of the entire justice system.
Posted by JD Byrne at 7:08 PM
West Virginia is bisected by two major Interstates: I-79 runs north and south to Charleston, while I-64 runs east and west across the entire state. But to get from the southeast part of the state to the north, it's best to bridge the distance of those routes by taking Route 19 from Beckley to I-79 north of Summersville. It's not an Interstate, but it's four-lane and a fairly quick drive. There's only one problem - Summersville itself, where the speed limit quickly drops by 15 miles per hour and the cops and thick and running radar. The town is known internationally as a speed trap (it's the location of my only speeding ticket), but now one local businessman is trying to help unsuspecting motorists. Charles McCue, who owns the land on which the local Wal-Mart was built, has posted a sign to the south of town that reads:
'Summersville, The World's Largest SPEED TRAP 4 MILES AHEAD.'
And at the bottom of the sign, 'Compliments of Charles S. McCue.'
He's got plans for more:
And as for Mr. McCue, he's planning to put a billboard on the north side of the town to warn travelers heading south.
'I've already set aside the money," he said. "I just haven't had the time.'
Thanks for the warning, Chuck!
Posted by JD Byrne at 7:00 PM
Monday, November 21, 2005
I've seen smokers huddle out in the cold on 10 degree days or brave a downpour just to get a blessed puff. But you've got to be jonesing really bad - or be titanically stupid - to try and open an airplane door while in flight in order to light up. Of course, she has a defense:
Defense lawyer Helen Shilton told the court Sellies was terrified of flying and had taken sleeping tablets with alcohol before takeoff.
Shilton said Sellies has no memory of what happened on the flight and that she has a history of sleepwalking.
Damn lawyers - they can justify just about everything! :)
Posted by JD Byrne at 6:53 PM
One good thing about being a public defender - you never have to worry about drumming up business. So I never have to sit in my office and ponder whether I should compare myself to a pit bull in my advertising. Which is good, 'cause apparently that just goes too far. So says the Florida Supreme Court. It wasn't just a simple comparison, however:
Ads used by the lawyers included a picture of a pit bull with a spiked collar beside the telephone number 1-800-PIT-BULL.Now, if only they'd had one of the lawyers wearing a spiked collar in the picture, that might have made all the difference. After all, "[i]t's such a fine line between stupid, and clever," as a great man once said.
Posted by JD Byrne at 6:40 PM
Thursday, November 17, 2005
I suppose it was only a matter of time. As this BBC report shows, people have started translating classic works of literature into text message formats. The story has examples of and Romeo and Juliet and Pride and Prejudice translated into one simple (?) paragraph of barely decipherable letters and symbols. Somehow, I think something is lost in the translation.
Posted by JD Byrne at 8:12 PM
That was my horrible attempt at Italian, by the way. It seems that for it's neighbors, the Autodromo Nationale di Monza - home of the Italian Grand Prix and one of the fastest and most famous race tracks on the planet - is just too loud. An Italian judge essentially shut the down the track until current noise levels are reduced. According to the judge, auto racing is a "superfluous, dangerous and socially useless activity with a big impact on the environment." Pretty big words from a man who makes his living in Ferrari country.
Posted by JD Byrne at 8:04 PM
Wednesday, November 16, 2005
One of the big concepts in criminal justice, particularly when dealing with sex offenders, is that of "zero tolerance." All people convicted of sex crimes must be branded, ostracized, and marginalized from society, regardless of their actual conduct. As usual, that sometimes produces grossly unfair results. Over at Crime & Federalism, Mike posts a letter from a reader who pleaded guilty to statutory rape in Georgia years ago when the law did not require him to register as a sex offender. He was given probation and has lived an exemplary life. But in July, Georgia changed the law to require all sex offenders to register. As a result, the reader lost his job and had his home raided by police (to "inform" his room mates of his status - they knew).
He doesn't minimize his offense or that he deserves punishment. But why should he be treated the same as some guy who snatched a woman off the street and raped her at knifepoint?
Posted by JD Byrne at 6:30 PM
When somebody tries to break a world record for knocking down dominoes, strange things are bound to happen. But gunfire? In Holland on Monday, an organization was attempting to reset a record involving more than 4 million dominoes. As they were falling, like so many east Asian nations during the 50s and 60s, a "common house sparrow" flew into the arena. With about 200,000 dominoes left, the bird got involved and knocked down 23,000 of them. His punishment? He was "chased into a corner and shot by an exterminator with an air rifle." That's problematic because the "common house sparrow," contrary to its name, is an endangered species in Holland. Killing one is illegal unless you have a permit and there is danger to human life or a crop. Authorities are investigating.
How the hell does a "common" bird become endangered, anyway?
Posted by JD Byrne at 6:23 PM
I used to be a voracious Law & Order fan, until I actually started practicing criminal law. Nevertheless, Second Circuit decision from yesterday should form the basis of an upcoming episode. In Policano v. Herbert, the court affirmed a lower court's grant of habeas relief on behalf of a guy convicted of "depraved-indifference murder under NY Penal Law section 125.25(2)." The problem with the conviction is that the defendant argued at trial (and apparently proved?) that he didn't kill the victim due to "depraved indifference," but because he did so intentionally. The two charges, in NY at least, are separate and mutually exclusive. Therefore, proof of one will not support a conviction for the other. That's a hell of a defense.
Posted by JD Byrne at 6:18 PM
Not really, but public opinion about the war in Iraq is starting to resemble that of the Vietnam War in about 1970, according to this USA Today story.
Posted by JD Byrne at 6:16 PM
From San Ber'dino, California, comes this story of true love. Or at least true insanity. In June, 2002, Christian Lindblad (wonder if his head is shaped like a potato?) shot his girlfriend in the groin and then held her hostage for six days in his garage. In spite of the best "home remedies," she eventually needed real medical treatment. He was sentenced to 20 years in prison this week. And what was his victim's reaction? She plans to marry him:
'I love Christian today as deeply as I loved him before this awful thing happened to us,' Stebbins wrote in a victim impact statement. 'We are soul mates.'Holy shit, what kind of "failure" could possibly result in being shot and kidnapped?!?
She added: 'I want to tell you all that I have forgiven Christian. And I pray that Christian has forgiven me for failing him when he needed me most.'
Posted by JD Byrne at 6:08 PM
For the first time since 1974, Australia qualified for the World Cup. The Aussies have the burden of being the very biggest fish by far in their region (sorry, New Zealand, you know it's true) that is otherwise very very weak and, thus, does not have an automatic berth in the World Cup finals. As a result, Australia has always had to play-off against a country from another region in a two-leg format in which, quite frankly, anything can happen. Finally, the managed to pull through, on penalty kicks after tying Uruguay 1-1.
Also on this last day of qualifying, Trinidad & Tobago became the fourth CONCACAF nation to make the finals, beating Bahrain 2-1 on aggregate. In Europe, Switzerland, the Czech Republic, and Spain made it through to the finals.
So the field is set for Germany '06 - can't wait for the draw next month!
Posted by JD Byrne at 6:00 PM
Monday, November 14, 2005
The writ of habeas corpus is a cornerstone of Western law, often called "The Great Writ." Habeas corpus in Latin literally means "produce the body," and the writ requires the Government to justify its imprisonment of someone. It's often used by prisoners to challenge the conditions of their confinement or their underlying convictions on grounds not reviewable on direct appeal (in fact, most of the death-row "appeals" you hear about are actually habeas proceedings).
It's also been used by people detained by the Government in the War on Terror at places like Guantanamo Bay. Which is why South Carolina GOP Senator Lindsay Graham last week introduced an amendment to a bill that would strip Gitmo detainees of the right to challenge their confinement, essentially overruling the Supreme Court's decision on the issue last summer. Why, you might ask, is it so important to allow these terrorists to have access to the civilian courts? Because, as attorney P. Sabin Willet points out in today's Washington Post, sometimes the Government gets it wrong:
Adel [Willet's client] is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken
Nevertheless, he continues to be held by the Government. This kind of thing should not happen in a country that values the rule of law and respect for human rights. And if Graham's amendment goes through, you can be sure the United States will no longer be one of those countries.
Posted by JD Byrne at 6:34 PM
Last week I noted the propensity of some right wingers to write bad porn in their spare times. Apparently if your a winger and not writing porn, you want to make sure that nobody else can ever read/watch/listen to it. Salon has this article (use the free day pass to get it all) about hearings on porn conducted by Kansas senator (and potential presidential candidate?) Sam Brownback. Well, it was more of an anti-porn hearing (not exactly "fair and balanced"), during which various experts opined on the evils of porn and the self-pleasuring activities associated therewith.
Brownback spoke for the country: I think most Americans agree and know that pornography is bad. They know that it involves exploitive images of men and women, and that it is morally repugnant and offensive . . .Hmm, he has a funny definition of "most," given the huge money-making machine that is the porn industry in this country. I think the true motivations of these folks is found in these comments:
Sen. Orrin Hatch attended a portion of the hearing to voice his support for a clampdown on pornography. He compared explicit sexual material to high-fat food and secondhand smoke, saying this was a "problem of harm, not an issue of taste." "America is more sex-ridden than any country in world history," said Utah's senior senator, quoting a 25-year-old study."Sex-ridden?" Usually to be "ridden" with something is a bad thing (jokes aside, please), as in saying "Dubya's White House is ridden with scandal." Isn't it sad that those in power believe that sex is something that is inherently evil and must be stopped in our lifetime?
It's nice to know that head-scratching judicial decisions aren't limited to this country. Consider this tale from the UK. A teen-age girl was charged with assault and put on bond. After violating a term of that bond, the prosecution requested that she be fitted with an electronic monitoring ankle bracelet (or "tag," as the Brits call it). Defense counsel argued against the anklet, on the grounds that it clashed with the girl's sense of fashion:
But David Taylor, defending, said that would interfere with her dress sense. He said: 'Unlike some young men who wear a tag as a badge of honour, this young woman dresses in a feminine way. She wants to wear skirts, not trousers, which would cover the tag.'The magistrate bought that argument and did not impose the condition requested by the prosecution. As expected, the ruling has produced outrage (if not anarchy) in the UK. But, when you look at what the "violation" actually was, it seems like a whole lot of sound and fury signifying nothing:
She appeared in court on Tuesday and admitted breaching the terms of her bail curfew, which states that she must answer her front door to police whenever they call.
Magistrates heard that Hughes, of Worcester, did not answer the door at 2.35am and claimed she was asleep at the time.
[Taylor] said Hughes lived in a shared house with her bedroom at the back of the property and had not heard the doorbell.
Sounds like a reasonable argument to me.
Posted by JD Byrne at 6:14 PM
Thursday, November 10, 2005
Since DC United were unceremoniously bounced from the MLS playoffs a couple of weeks ago, I figured I'd be watching this weekend's tenth annual MLS Cup Final (3:30 pm on ABC) as a neutral detached fan of the game. Not anymore, as LA Galaxy coach (and mastermind of the infamous 3-6-1 debacle in France 98), has said this about his team (English translation courtesy of North American Soccer mailing list):
I give the orders to the team on the field, but it's God who guides me. It's not my hands that steer the Galaxy, but the hands of God. If he wants us to be champions then so be it, because only his power should prevail.Well, that about cinches it then, doesn't it? Let's go Revs!
On a related note, am I the only one who is stunned that MLS has been around for 10 years? I know they've been celebrating it throughout the season, but I guess it really hit me when I heard young players from both New England and LA talk about how they "grew up" as Revs or Galaxy fans. Sure enough, for those young 21 year olds, they've grown up with a top-flight professional American soccer league. How kick ass is that?
Posted by JD Byrne at 9:39 PM
I'm a little late to this (WVU playing Wednesday games will do that to me), but one of the most powerful election results from Tuesday came from the Dover, Pennsylvania school board race. That's the town, you'll remember, that is embroiled in a federal legal controversy over "Intelligent Design" and it's place in a public school science curriculum. All eight of the pro-ID folks on the board were defeated in the election. I'm not one to tout election results as evidence of people getting something right, but this does at least indicate that the citizens of York were sufficiently pissed off with these fundie nutjobs to actually vote in a school board election.
Of course, with the good news comes the bad - also on Tuesday, the Kansas State Board of Education voted (6-4, thankfully) to include ID in their high school science curriculum.
Posted by JD Byrne at 1:57 PM
Yesterday's Washington Post had good coverage of the oral argument in the consent-to-search case I mentioned here. It sounds like the Court is at least split over whether the Georgia appellate courts correctly held that once one resident of a house says "no, you can't search my house," the cops can't seek another answer from someone else. Hell, even Justice Thomas asked a question this time!
Meanwhile, Dahlia Lithwick over at Slate has these thoughts on the case.
Posted by JD Byrne at 1:51 PM
Tuesday, November 08, 2005
Over at Crime & Federalism, Norm sets forth what he sees as several common misconceptions about criminal law. I'm largely in agreement with him, but I think he really hits the nail on the head with the last one:
6. Other people's problems. Until a loved one is accused or convicted of a crime, the criminal courts are dark places inhabited by fiends; criminal defense lawyers are little more than scum. Only when a loved one is accused does the perspective change. In such a moment, the full weight and power of random acts, assumption, pride, prejudice and all the human failings become apparent. In such moments, the state's power to destroy without feeling is apparent. In such moments, what looked like other people's problems suddenly become our own, and we see the need for defenders of people in trouble. That is the sum and substance of the criminal law, and I am proud of the fact that I can give my life, talents and energies to people in dark places.Very true. And I, like Norm, am proud to represent people in dark places.
Posted by JD Byrne at 6:40 PM
Long ago, when I was in law school in Morgantown, I paid attention to Pennsylvania politics (since our "local" TV stations were from Pittsburgh). I vividly remember Tom Ridge running for Governor hitched the Contract With America ideals, including the concept of shifting more power and responsibility to the states. He won the election and was quickly faced with a series of devastating floods. What does he do? Immediately beg the Federal Government for help and bitch and moan when it didn't come.
Why do I bring it up? 'cause history is repeating itself. GOP Representative John Hostettler of Indiana was one of only 11 Congressmen to vote against the Katrina relief package in the days after the hurricane hit. Perhaps it was a principled decision and he's not just a heartless bastard. But signs point to the second option. After his district was ravaged by tornadoes last weekend, what did Hostettler do? Beg the Federal Government for help, of course. What's changed? He's facing a tough reelection campaign in 2006.
Posted by JD Byrne at 6:35 PM
What is it with the conservative political operatives and their penchant for writing really awful quasi-erotic novels? The latest to be outed as a low-rent DH Lawrence is none other than "Scooter" Libby, who wrote a novel called The Apprentice: A Novel back in 2002. According to CNN:
Now out of print, the novel tells the story of an innkeeper apprentice in a bizarre coming-of-age story set in Japan in 1903. It is littered with edgy sexual material and strong language.
'Wow, who would have thought that clean living, family values man Scooter Libby was capable of writing such filth,' said one reviewer on Amazon. Another Amazon reviewer noted its 'lavish dollops of voyeurism, bestiality, pedophilia and corpse robbery.'
Wow - now we know where Cheney's torture ideas come from! Libby is hardly the first winger to dip his, um, toe, into the area of cheesy erotica. Let us not forget Bill O'Reilly's Those Who Trespass (a "novel of television and murder").
Posted by JD Byrne at 6:26 PM
Well, wouldn't you know it I swept right past my 1000th post without marking the occasion. And neither did the Philadelphia Eagles, which is really inexcusable (get my agent on the phone!). Looks like it happened back on October 13. Hooray for me!
Posted by JD Byrne at 6:19 PM
Monday, November 07, 2005
It's a foregone conclusion that Kasey Keller will be the number 1 goalkeeper for the US in next year's World Cup. Who will be number 2? Man United's Tim Howard, who conceded a goal to the other goalkeeper (off a clearance) in a reserve match next week? Let's hope not. My vote goes to Marcus Hahnemann, who plys his trade with Reading (along with fellow Yank Bobby Convey) in the Football Championship, the second level of English football. Reading is a favorite for promotion to the Premier League this season, thanks in large part to Hahnemann's stout work. At least that's what The Times thinks:
AS READING shoot for the stars, their aim fixed firmly on the Barclays Premiership, they could not have a better man protecting them. At 6ft 3in and 16st, Marcus Hahnemann, the American goalkeeper, cuts an imposing figure. Big and bald, a bad-assed bounty hunter kind of guy with attitude.How can he not be on our roster next year?!?
The Christian Science Monitor has an article today previewing an interesting Supreme Court case from Georgia that will be argued tomorrow. I can't think of a better setup than the article's opening:
In a case that could inject a new level of acrimony into failing marriages nationwide, the US Supreme Court is about to examine whether the police need the consent of one or both spouses to conduct a warrantless search of a home.In this case the police were called to a domestic disturbance at the home of an attorney and his estranged wife. She alleged that he was using cocaine, he did the same in reverse. The police asked him for permission to search the house and he refused. They then went on to ask the wife for permission to search, which she granted. The search uncovered a small amount of cocaine and drug paraphernalia, which the police used to get a search warrant. Georgia appellate courts have held that the police could not "consent shop" in cases like this where both owners of the home are present. Georgia, of course, disagrees (as does the federal Government, via an amicus brief). Should make for an interesting argument.
Posted by JD Byrne at 6:15 PM
Pirates - they're not just for Johnnie Depp movies or Emerson, Lake, & Palmer epics any more:
A violent attack on a cruise liner off Somalia's coast shows that pirates on the Horn of Africa are becoming bolder and more ambitious in their efforts to hijack ships for ransom and loot, a maritime official warned Sunday.Who knew?
Posted by JD Byrne at 6:10 PM
Today's USA Today has an article about how a study of Virginia's DNA database and how it is not exactly producing TV-worthy results. According to the study, in only 1/4 of more than 3000 cases with DNA evidence was a match produced. None of this should come as a surprise to anyone, of course. DNA is hardly the magic bullet in criminal cases it is often portrayed to be. It can never solve case, only locate a person in relation to the scene.
And if you've had a bone marrow transplant, you might not even leave your DNA behind!
Posted by JD Byrne at 6:02 PM
Thursday, November 03, 2005
Almost from the day I started my current job three years ago I had co-workers eagerly trying to convince me to buy a house. Among the many benefits they laid out were the tax benefits that came through being able to write off mortgage interest and local property taxes. Well, I didn't live in my house long enough last year to get the benefit of those things and now it looks like Dubya wants to take them away. Or at least reduce them, if he takes the advice of a tax-reform panel that was recently made public. What timing.
Posted by JD Byrne at 6:20 PM
A Congressman from one of the areas of Louisiana that was particularly hard hit by Katrina has released lots of Emails from ex-FEMA chief Mike "Brownie" Brown. They certainly will not change anybody's impression of Brownie as a weak and untalented administrator who owed his position to being chummy with Dubya. For instance, in response to one Email on the second day of the disaster in New Orleans that described the situation as "past critical," Brownie wrote, "Thanks for the update. Anything specific I need to do or tweak?" Or how about another Email to a FEMA PR flack the day Katrina hit: "Can I quit now? Can I come home?" Way to show leadership, Brownie!
Posted by JD Byrne at 6:14 PM
Wednesday, November 02, 2005
Over at Slate, Rod Smolla makes the timeless observation: "Prosecutors are from Neptune, defense attorneys are from Pluto." Smolla's point is that it seems to take a different kind of psychological makeup to be a prosecutor versus a defense lawyer. I agree with him. I don't think I could ever wield the power of the state to send someone to prison. At least not most of the pathetic souls who actually end up there. Similarly, most of the prosecutors I've dealt with don't appear to have the empathy to represent people charged with crimes. I'm referring here to long-term partisans on either side: prosecutors, full-time criminal defense attorneys, and public defenders. Anybody else is just a part timer.
Having said all that, can't we defenders at least get a real planet, not one who's very existence is the subject of debate? How about Jupiter? It's my favorite part of The Planets, anyway.
Posted by JD Byrne at 7:02 PM
The Supreme Court heard oral arguments yesterday in a really interesting case that deals with the intersection of criminal law and religious practice. The case involves the small American branch of a Brazilian church called UDV. As part of their religious ceremonies, UDV adherents consume hoasca tea, which is made from two plants that grow only in the Amazon. The tea contains DMT, a hallucinogen that happens to be a Schedule I controlled substance in the United States. Use and possession of Schedule I substances, like pot, are completely prohibited (outside of a few Government research projects). The DEA seized a shipment of the tea, which the American branch of UDV imports from Brazil. UDV sued the Government and obtained an injunction prohibiting the DEA from any more seizures. The DEA has appealed all the way to the Supreme Court.
If this case sounds a little familiar, that's because it is. In 1990, the Court held that Colorado could punish the ritual use of Peyote by Native Americans because the law was generally applicable and was not designed to discriminate specifically against religious use. A coalition of religious leaders took umbrage at that and got Congress to pass the Religious Freedom Restoration Act (RFRA), which requires courts reviewing such general laws that impose on religious expression to determine whether the Government has a "compelling interest" in enforcing the law against that particular religious group. That's a very difficult standard for the Government to meet, which essentially means that religious exceptions to general laws will be upheld.
The real issue in the case heard by the Supremes yesterday was how to apply the RFRA in this particular case. But the broader issue is should the First Amendment be interpreted to allow religious exceptions to generally applicable laws? I'm not comfortable with that idea, for lots of reasons. The major one is that it might lead to courts passing judgment on what religions are "sincere" enough to warrant the exceptions. That would seem to cause all kinds of First Amendment problems, as it puts the Government in the position of separating out "true believers" from phonies.
Another problem I have is that I see no compelling reason to limit the exception to religious groups. Why should I be deprived the benefits of this (or any other) particular drug because I don't have a church or cult to back me up? I know the cases are legally distinct, but compare this case with the Raich medical marijuana case decided last term. It's OK for a group of religious folks to break the law in order to better commune with God, but people seeking medical treatment under a state statute providing for such treatment are out of luck? What if someone started the Church of Medicinal Marijuana?
Either way, it appears headed for a pro-religion outcome, according to Lyle Denniston's report over at SCOTUSblog.
For more perspectives on this issue, check out the Legal Affairs Debate Club this week.
Posted by JD Byrne at 6:42 PM
Last year, in the fairly blockbuster case of Crawford v. Washington, the Supreme Court resurrected the Sixth Amendment's Confrontation Clause, wiping away decades of shady evidence slipping into criminal prosecutions without any cross-examination. Confrontation was required, said the Court, where "testimonial" evidence is at issue. What's testimonial evidence, you ask? Well, the Supremes didn't really tell us. As a result, lower federal and state courts have been split on the issue, particularly when it comes to statements made at the scene of events to police officers or in 911 calls. Thankfully, the Court has taken two cases to resolve the issue next spring. One is from Washington, in which the defendant is represented by the same guy who brought us Crawford in the first place (in addition to Blakely). The second case, from Indiana, is being pushed by a law prof from Michigan. You can access the briefs filed to this point at his Confrontation Blog here.
Posted by JD Byrne at 6:36 PM
Sure, it was a political "stunt" (what isn't in DC these days?), but it worked, didn't it? I was so happy, after several years in the political desert, to see the Democrats reach up and grab the GOP by the balls yesterday afternoon. Harry Reid's forcing of a closed-door session to discuss intelligence on the Iraq war pissed of the GOP leadership while forcing them to move the investigation along. Don't you just love Bill Frist and his "[i]t's an affront to our leadership." Good! Your leadership needed to be affronted, and earlier than this. Was it necessary to take such a drastic step? Apparently:
But Senator John D. Rockefeller IV of West Virginia, the senior Democrat on the Intelligence Committee, questioned Mr. Roberts's [GOP chair of the committee] commitment to the inquiry. He said that whenever the panel closed in on the sensitive question of administration handling of intelligence, "then all of a sudden an iron curtain comes down."
"I have to say in all honesty that I am troubled by what I see as a concerted effort by this administration to use its influence to limit, delay, to frustrate, to deny the Intelligence Committee's oversight work into the intelligence reporting and activities leading up to the invasion of Iraq," Mr. Rockefeller said.
You tell 'em, Jay!
Posted by JD Byrne at 6:25 PM
Yesterday, one of the legendary names in Formula 1 ceased to be. Small Italian team Minardi, who were purchased by Red Bull last month, officially morphed into Squadra Toro Roso (that's "Team Red Bull" in Italian) on November 1. While they routinely circulated at the back of the field, Minardi provided a number of young drivers with their first step into F1, including new World Champion Fernando Alonzo and current Williams pilot Mark Webber. And, as my brother pointed out at Indy one year, even a Minardi running at the back of the field is still one of the fastest race cars in the world.
Posted by JD Byrne at 6:18 PM