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Archive for the ‘judicial rulings’ Category

It would be constructive if…

Posted by Charles II on November 25, 2014

Crossposted as a comment on DK regarding the decision of the Grand Jury not to indict in the shooting of Michael Brown by Officer Wilson in Ferguson Missouri:

It would be constructive… (1+ / 0-)

In situations like these, emotion is not very helpful. I would like to see a careful deconstruction of the narrative that McCulloch constructed.

One example is McCulloch’s claim that Mike Brown suffered a “graze wound” to his thumb. Yet, as I understood his presentation, blood and tissue were spattered all over the car, both inside and out. This does not sound to me like a graze wound.

A second example has to do with the question of whether Mike Brown “charged” at McCulloch after being shot several times. If that’s so, there should be a blood trail that is miniscule when Brown allegedly turned, then much larger when he was hit by several bullets, leading a considerable distance to the place where he collapsed.

A third question is whether Officer Wilson had heard about the theft. McCulloch said yes. The reporting I heard early on said no.

Without seeing all the evidence, it’s hard for me to know what basis the Grand Jury made its judgment.

The most powerful rebuttal to an opponent is to take what they claim happened and interrogate it– carefully, without pre-judging, and without hyperbole.

The narrative that much of white America understands is that a young man, high on drugs, robbed a store. A police officer confronted him with the intent to arrest him, the suspect feloniously attacked the officer, the officer shot him and then pursued a fleeing felon. If I as a Grand Juror believed that narrative, I’d support Darren Wilson. As much as I see the clear evidence of racial bias in Ferguson, a juror has to focus on the facts of one particular case. But I don’t believe McCulloch’s narrative, because of all of these threads hanging off of the story begging to be unraveled. By someone. Someone who can set aside their feelings and make the precise truth plain.

It would be constructive to see a careful, dispassionate deconstruction of the McCulloch narrative. I haven’t seen it anywhere yet.

I don’t think we’ll see this done about this case.

By the way, if you want to see the quality of evidence presented to the Grand Jury, consider Witness #40 (via Betty Cracker). If that link–which shows that this is a legitimate item–fails, try this one from Chris Canipe of the Wall Street Journal. Very strange.

Posted in judicial rulings, racism | 4 Comments »

Supreme Court is so corrupt that even Linda Greenhouse has to say it

Posted by Charles II on November 14, 2014

Thanks to Jonathan Tasini for highlighting a Linda Greenhouse Op-Ed that says, in black and white in the New York Times, that the Supreme Court is doing politics by taking up a challenge to the Affordable Care Act.

Nearly a week has gone by since the Supreme Court’s unexpected decision to enlist in the latest effort to destroy the Affordable Care Act, and the shock remains unabated. “This is Bush v. Gore all over again,” one friend said as we struggled to absorb the news last Friday afternoon. “No,” I replied. “It’s worse.”

There was [in the ACA case, unlike Bush v. Gore] no urgency. There was no crisis of governance, not even a potential one.

the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review.

So no, this isn’t Bush v. Gore. This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect.

Professor [John] Yoo, formerly of the Justice Department’s Office of Legal Counsel and now at the University of California at Berkeley, wrote that the new case gave the chief justice “the chance to atone for his error in upholding Obamacare” and that “it will be the mission of his chief justiceship to repair the damage.”

In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.

Why should any citizen respect the decisions of the courts when they are just political organs, cranking out pre-determined decisions to oppress the poor and the sick in favor of the rich and powerful? Without the courts being perceived as just, what nation can stand?

Posted in judicial rulings, judiciary, Supreme Court | 7 Comments »

Courts for sale

Posted by Charles II on March 2, 2014

Judith Resnik, NYT:

SHOULD wealthy litigants be able to rent state judges and courthouses to decide cases in private and keep the results secret?

The answer should be an easy no, but if the judges of Delaware’s Chancery Court persuade the United States Supreme Court to take their case and reverse lower federal court rulings outlawing that practice, corporations will, in Delaware, be able to do just that.

Posted in activist judges, corruption, judicial rulings, judiciary | Comments Off on Courts for sale

The patter of little lawsuits

Posted by Charles II on September 22, 2013

Curt Anderson of AP reports at HuffPo that Chiquita is facing lawsuits over its payments to a right-wing Colombian death squad, the AUC. Chiquita has admitted to paying $1.7 M to the AUC, which it called blackmail, and pled guilty to assisting terrorists. It is now facing civil actions in Florida. It has appealed to the 11th Circuit Court on the basis that the victims families can’t prove a connection between the payments and the murders. One would think that Chiquita’s best defense would be that it also made payments to the FARC, the people who the AUC was supposedly fighting while, in fact, terrorizing the entire population.

The 11th Circuit has previously ruled that a Bolivian Minister of Defense can’t be held liable for killings that resulted from his orders, issued on the battlefield, to fire at certain locations. You know, because pulling the trigger doesn’t necessarily mean that someone at where the gun is pointing is going to be wounded and perhaps die. Or whatever.

According to Telesur, the objective of the AUC violence, according to Raúl Emilio Hasbún alias Pedro Ponte o Pedro Bonito, was to displace local communities in areas where Chiquita wished to grow bananas.

It’s not like I expect any lawsuits against American corporations for their crimes to succeed in the present unjust judicial system, but perhaps, like the patter of raindrops on an autumn afternoon, they may awaken Americans to the dark side of our engagement in Latin America.

Posted in judicial rulings, judiciary, Latin America | Comments Off on The patter of little lawsuits

As usual, only one man can summarize the healthcare case before the Supreme Court correctly

Posted by Charles II on March 30, 2012

In its entirety:

The following message was released today by the National Alliance of Funeral Directors:

This week, several Republican Supreme Court Justices have argued that the Affordable Care Act supported by the Obama Administration is unconstitutional. At the National Alliance of Funeral Directors, we couldn’t agree more.

It was Revolutionary War hero Patrick Henry who said, in 1775, “Give me liberty or give me death.” From that moment on, legal scholars have agreed that the Constitution guarantees every American the liberty to be dead. Here at the Alliance, we will fight for your right to be dead to the death.

Let’s take a look, if you will, at the Second Amendment of the Constitution, which protects every American’s right to shoot another American. It says nothing about giving the person who is shot health insurance to prevent him from dying. This cherished constitutional right to shoot people and make them dead is currently recognized in all fifty states, most recently Florida.

In commenting on the Affordable Care Act this week, Justice Samuel Alito compared the Obama healthcare plan to burial insurance. Coincidentally, burial insurance is the Republican healthcare plan, and one that we enthusiastically support. Under this plan, every American would be mandated to buy a coffin from one of our member-owned and operated funeral homes. May we recommend the Peaceful Valley Royale,™ a luxury mahogany casket with sienna satin interior and the finest imitation antique nickel handles ($2899).

As the organization representing America’s funeral directors, gravediggers, embalmers and cremators, we are confident that the Supreme Court will ultimately do the right thing and decide that healthcare flies in the face of every American’s constitutional right to the pursuit of deadness. And when they do, we’ll be waiting for you.

Sincerely,

The National Alliance of Funeral Directors

Andy Borowitz

Posted in health care, judicial rulings, judiciary, Republicans as cancer, Supreme Court | 4 Comments »

Troy Anthony Davis, 10/9/68 – 9/21/11

Posted by Charles II on September 21, 2011

Keep thee far from a false matter; and the innocent and righteous slay thou not: for I will not justify the wicked. –Ex. 23:7

The State of Georgia has slain a man that should never have been found guilty. Among those urging that he not be executed were Pope Benedict, President Jimmy Carter, former Republican Congressman Bob Barr, and former GHW Bush FBI Director William Sessions. A plea was issued by former prison wardens, including the former warden of the prison in which Davis was held (the Georgia Diagnostic Prison) that this conviction was so riddled with doubt that it would haunt those who participated in it for the rest of their lives. Rachel Maddow read their letter. I urge you to listen to it.

It is not that Troy Davis is provably innocent. It is that there is more than reasonable doubt. Davis was alleged to have shot Michael Cooper with the same gun that was used against Officer Mark MacPhail. But he was never tried for shooting Cooper–the case for doing so would have been hopeless as this link should make clear–and the forensics were inconclusive. The gun was never found. The recantations make it clear that there was extensive police coercion used to force the case to a conclusion.

Davis maintained his innocence to the end. Georgia’s Parole Board, Governor, Georgia Supreme Court, and other officials including the US Supreme Court have, I believe, murdered an innocent man. The case is now in God’s hands.

Posted in judicial rulings, judiciary | 1 Comment »

GAO Report on ACORN; Court: A bill of attainder is not a punishment

Posted by Charles II on June 16, 2011

Via Avedon, this article from Consumer Affairs (emphasis added):

A report issued today by the Government Accountability Office (GAO) finds little to support the charges that led to the demise of the Association of Community Organizations for Reform Now (ACORN)

of 22 investigations of alleged election and voter registration fraud, most were closed without prosecution, the report found.

One of eight investigations of alleged voter registration fraud resulted in guilty pleas and seven were closed without action due to lack of evidence.

The Federal Election Commission (FEC) reported five closed matters – one resolved, one dismissed and the others dropped after FEC “found no reason to believe the violations occurred.”

The group disbanded in March 2010 In December 2009, New York U.S. District Court Judge Nina Gershon ruled that Congress had violated the Constitution by singling out ACORN and banning it from receiving federal funds but the ruling was overturned by a federal appeals court, which found that federal funds amounted to only 10 percent of ACORN’s funding and therefore Congress’ action did not amount to punishment, even though it may have been unjustified.

In other words, the federal appeals court found that it’s perfectly all right to single out an organization on which to impose–without judicial review– a penalty for past behavior that actually wasn’t what the Congress said it was. That’s because a penalty is not a punishment.

Posted in Congress, judicial rulings, judiciary | Comments Off on GAO Report on ACORN; Court: A bill of attainder is not a punishment

The law on targeted killings. bin Laden v. al-Awlaki

Posted by Charles II on May 9, 2011

I don’t pretend to be a lawyer, but I have followed legal issues long enough to have a good layman’s sense of things. The killing of bin Laden has been met by claims that it was unlawful. I recently responded to those over at Avedon Carol’s Sideshow. I wish that there had been a lawyer familiar with US and international law to critique my posts, but unfortunately the response was simply that I was obviously wrong which, of course, doesn’t help to resolve the issue at all.

Targeted killings are an important issue. The US has asserted a right to kill anyone designated by the president as a terrorist when they are overseas, including US citizens. As bad as that is, there’s little to prevent the principle from being broadened to include anyone, anywhere under, say, a Bachmann presidency. Saggy pants? Boom! Cruise missile.

Now, the assertion clearly appears to violate the Fifth Amendment, which guarantees due process, including indictment by Grand Jury, for “a capital, or otherwise infamous crime.” There is an exception for “in actual service in time of war or public danger” which one wishes the Founders had been a little more explicit about, but the protections are very broad.

The case of Anwar al-Awlaki (or al-Aulaqi) highlights the issue. Detailed discussion is contained here and here. al-Awlaki is 1) a US citizen 2) presently in Yemen, a nation with which we are not at war. He is a cleric. To the best of my knowledge, 3) he has not personally engaged in acts of violence. Instead, as I understand it, he has been declared a terrorist based on having served as a religious leader to known terrorists. 4) He has not been indicted for any offense. And 5) there is no question that the US is trying to kill and not capture him, since they are using drone attacks. The courts ruled that his father, who brought the case, had no standing. Since it’s not really practicable for al-Awlaki to file the case, this has the effect of ending any chance of due process.

By contrast, in the bin Laden case, 1) he is not a US citizen. At the time of his death, he was in Pakistan, a nation with whom we are not at war. However, 2) he had gone there from Afghanistan, a nation on which the Congress authorized the use of military force precisely because of actions by bin Laden. 3) by his own admission, he had personally commanded the commission of acts of violence, and 4) has been indicted by US Grand Juries for some of those offenses (Anbar Towers and embassy bombings). Although the US has used drone strikes against al-Qaida members, in the raid on Abbotabad, they did not use drone strikes. So, however obvious it may seem to everyone, 5) it is at present ambiguous as to whether the order was to kill or to kill only in the event he could not be captured.

So, the elements of the bin Laden case are far different. Fifth Amendment protections do not apply, since he is out of the country. Nor does the government have any duty to him, since he’s not a US citizen. Unlike al-Awlaki, bin Laden (by indictment and by admission) personally directed and facilitated acts of violence. And (as implausible as it may seem) there’s some ambiguity around whether bin Laden was killed while resisting.

There’s an additional point. Al Qaeda was indisputably the target of the Congressional Authorization to Use Military Force. It’s less clear that groups separate from Al Qaeda, but may have been inspired by them, are covered by the AUMF.

There is a dispute as to whether someone constitutes an “imminent threat.” In the case of a cleric, that’s a pretty tough case to argue. Do we want to argue that chaplains are legitimate targets? But in the case of a commander of forces (and this bears on the targeted assassination attempt against Libya’s Moammar Gaddafi), it’s a far easier case to make. The attack on Rommel did materially affect the German war effort, for example, [added] and if the Laycock commando assassination attempt had succeeded, it would have had an even greater impact.

Well, is targeted assassination a violation of international law? Murphy and Radsan say:

From the technical stance of the law, much of the controversy over targeted killing stems from the fact that it does not fit comfortably into either of two models that generally control the state’s use of deadly force: human rights law and international humanitarian law (IHL). The human rights model controls law enforcement operations generally, and it permits the state to kill a person not in custody only if necessary to prevent him from posing a threat of death or serious injury to others. IHL is that part of the laws of war that enforces minimum standards of humane treatment of individuals.16 As part of the lexspecialis of war, IHL displaces the human rights model during armed conflicts, granting the state broad authority to kill opposing combatants as well as civilians who are directly taking part in hostilities. Under this two-model dichotomy, extra-judicial, targeted killing of a person who is not an imminent threat can be legal only as permitted under IHL. However, conceding that IHL—as part of the laws of war—can apply to targeted killing might seem to grant the executive too much power to categorize suspected terrorists as combatants and then kill them off without a shred of process.

As we will show, a reasonable construction of IHL grants the executive considerable power to kill the state’s enemies. So for the sake of argument, we accept that the substantive legality of targeted killing depends on its consistency
with IHL.

I should note that Murphy and Radsan do point out that Boumedienne did extend the reach of due process to Guantanamo, blurring a clear line that had been drawn to exclude aliens in Eisentrager. However, it’s pretty clear that this would not extend to a fugitive like bin Laden, unless he had surrendered himself, since the US does not control Abbotabad. They propose that if the Executive has a clear standard of deciding who is to be targeted and who not, then that satisfies any implication of Boumedienne.

Now, if bin Laden was targeted out of revenge, it would have been illegal under international law. However, since he was a fugitive from justice, this is impossible to prove or disprove.

The bottom line here is that the killing without due process of bin Laden–and any other person, US citizen or not, who is outside of territory controlled by the United States– is legal, and the State–using the so-called State Secrets privilege– does not have to answer for it. The lack of due process is dangerous and shocking. But no one should argue that the killing of bin Laden was illegal under either US or international law. For that matter, bin Laden received due process under the Clinton Administration. By failing to surrender himself, he made himself a dangerous fugitive from justice. Under American law, it is not at all unusual for dangerous fugitives to be shot and killed on the basis that they were resisting arrest. And it takes almost nothing at all for a court to conclude that they were resisting.

For what it’s worth, I believe that capturing and trying bin Laden would have been infinitely preferable to killing him. In the eyes of his comrades, he’s now a martyr, and that martyrdom will fuel even more revenge killing. But no one listens to me, not even the Sideshow regulars.
_______________
Added: Gareth Porter tells me that I should have no optimism that the death of bin Laden will promote peace.

The idea that U.S. policy is now on the road to an “endgame” in Afghanistan glosses over a central problem: the publicly expressed U.S. determination to keep a U.S. combat presence in Afghanistan indefinitely is not an acceptable condition to the Taliban as a basis for negotiations.

A shame, since the only thing to really celebrate about the death of bin Laden, aside from the fact that he won’t be able to plot any more attacks against Americans or brag about getting away with past attacks, is that it might lead the US to be willing to depart. Since no one has shown me how killing bin Laden will raise anyone from the dead, there is therefore very little to celebrate.
________________
Added: For a contrary point of view, see Cohn (member of the faculty at Thomas Jefferson School of Law, and a prolific writer on international law and human rights). She says,

Osama bin Laden and the “suspected militants” targeted in drone attacks should have been arrested and tried in U.S. courts or an international tribunal. Obama cannot serve as judge, jury and executioner. These assassinations are not only illegal; they create a dangerous precedent, which could be used to justify the targeted killings of U.S. leaders.

I agree with the first sentence, disagree with the claim of illegality as it relates to bin Laden in the last, and would emphasize that the fear that a president might usurp judicial powers (as appears to have happened with al-Awlaki) is why targeted killings should be opposed.

Posted in judicial rulings, judiciary, Osama bin Laden | 6 Comments »

Gutshot’s Power Grab Goes Down In Flames

Posted by Phoenix Woman on May 6, 2010

Less than two years ago Tim Pawlenty and his former law partner Eric Magnuson were best buds — so tight that in June of 2008, Gutshot had Magnuson appointed to the Minnesota Supreme Court.

How things change.

The Minnesota Supreme Court has ruled in Brayton v. Pawlenty that Governor Gutshot “overstepped his bounds” (speaking of delicious irony) in deciding that he was not only the governor, he was the legislature, too! In a decision written by his own appointed Chief Justice, Eric Magnuson, who was his former law partner, to boot, the Supreme Court held that Pawlenty did not have the authority to remake the budget of the state for a biennium that hadn’t even begun.

The full opinion is here.

Spotty’s Cliffs Notes version is here. Enjoy!

Posted in 'starving the beast', (Rich) Taxpayers League, judicial rulings, Minnesota, Republicans, Republicans acting badly, rightwing moral cripples, Tim Pawlenty | 4 Comments »

Way to go, A.C.E.: NOLA Plaintiffs Win Katrina Case

Posted by Charles II on November 19, 2009

Mark Schleifstein, New Orleans Times-Picayune

In a groundbreaking decision, a federal judge ruled late Wednesday that the Army Corps of Engineers’ mismanagement of maintenance at the Mississippi River-Gulf Outlet was directly responsible for flood damage in St. Bernard Parish and the Lower 9th Ward after Hurricane Katrina.

“The failure of the Corps to recognize the destruction that the MRGO had caused and the potential hazard that it created is clearly negligent on the part of the Corps,” said U.S. District Judge Stanwood Duval Jr. in his ruling. “Furthermore, the Corps not only knew, but admitted by 1988, that the MRGO threatened human life … and yet it did not act in time to prevent the catastrophic disaster that ensued with the onslaught of Hurricane Katrina.”

“The Corps’ lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions,” Duval wrote….

Duval’s 156-page decision could result in the federal government paying $700,000 in damages to three people and a business in those areas, but also sets the stage for judgments worth billions of dollars against the government for damages suffered by as many as 100,000 other residents, businesses and local governments in those areas who filed claims with the corps after Katrina.

Duval ruled, however, that WDSU-TV anchor Norman Robinson and his wife were not entitled to damages because the corps’ dredging of the MR-GO did not affect the levee system that protects eastern New Orleans from hurricane storm surge.

Posted in Good Things, judicial rulings, New Orleans | 1 Comment »

 
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