Fables of the reconstruction

Former NM Chief Justice Dies Giving a Speech to One Ls

Imagine the judge's poor wife (who was in attendance) and students who had to go through this:

Former state Supreme Court Chief Justice Gene Franchini died Wednesday afternoon while addressing first-year law students at the University of New Mexico. 

... Franchini was giving his annual speech on ethics and the role of a judge Wednesday evening when he collapsed.

Faculty members said Franchini apparently suffered a heart attack. Students tried to perform CPR until emergency crews arrived.

Local Programming: Meet Death Row Exoneree Harold Wilson This Afternoon

Thursday, November 5th

4:30-6:00 p.m.
Meet Death Row Exoneree Harold Wilson at Temple Law
Meet Harold Wilson, who was wrongly sentenced to death for murder and then subsequently exonerated. The event is sponsored by the American Constitution Society, Witness to Innocence, the National Lawyers Guild, and the Pennsylvania Innocence Project. The program will be held at Temple University Beasley School of Law, 1719 North Broad St. (southeast corner of Broad and Montgomery Ave.), Philadelphia, PA 19122, Room K2B, from 4:30-6 p.m. Contact Chris Wickman for more information.

More Is Thy Due Than More Than All Can Pay

Some guy named Chiscolm sued Bank of America for $1.784 septillion dollars. That's $1,784,000,000,000,000,000,000,000.  Or $1.784 trillion trillion. Any way you say it, he won't get it:

The gross domestic product of the entire world in 2008 was only $60 trillion, so even if Chiscolm won it might be a little hard to collect.

Also, or rather to reiterate, he's not going to win because he's nuts:

In a ruling issued Thursday, U.S. District Judge Denny Chin called Chiscolm's claim "incomprehensible," having something to do with incomplete routing numbers and inconsistent information given to him over the phone by a "Spanish womn [sic]."  Chiscolm now has a month to come up with a better explanation of his claims, so we can all look forward to that.

Damn Spanish womn. Get you every time.

(Via via.)

Birther Suit Dismissed and Orly Taitz Threatened With Sanctions

This is nice:

[Middle District of Georgia] U.S. District Court Judge Clay Land today tossed out a complaint by an Army captain fighting deployment to Iraq by questioning the legitimacy of President Barack Obama.

Land also put attorney Orly Taitz, who represents Capt. Connie Rhodes and is a leader in the national “birther” movement, on notice by stating that she could face sanctions if she ever files a similar “frivolous” lawsuit in his court.

“(Rhodes) has presented no credible evidence and has made no reliable factual allegations to support her unsubstantiated, conclusory allegations and conjecture that President Obama is ineligible to serve as president of the United States,” Land states in his order. “Instead, she uses her complaint as a platform for spouting political rhetoric, such as her claims that the president is ‘an illegal usurper, an unlawful pretender, [and] an unqualified imposter.’”

Orly Taitz, JD, DDS, and "frivolous" in the same sentence. I am glad some people are sane.

Update: The judge's order (pdf) will be included in an upper-level law seminar I will teach next year called Things You Don't Want a Judge to Say About You or Your Client:

The present action is the second such action filed in this Court in which counsel pursues her “birther claim.” Her modus operandi is to use military officers as parties and have them allege that they should not be required to follow deployment orders because President Obama is not constitutionally qualified to be President. Although counsel has managed to fuel this “birther movement” with her litigation and press conferences, she does not appear to have prevailed on a single claim. In fact, Plaintiff previously filed the present action in the United States District Court for the Western District of Texas. That Court summarily dismissed her complaint upon finding that Plaintiff “has no substantial likelihood of success on the merits.” [Cite omitted.] Counsel then re-filed the same action in this Court.

Subtle practice point here: As an attorney, you know you're in trouble when the judge writes that you have a modus operandi. Also, it's bad form to shop your case around to every District Court you think might give you a sympathetic hearing just because it's located in a red state.

Captain Rhodes entered the Army in March of 2005 and presently serves as a medical doctor.  The American taxpayers paid for her third and fourth years of medical school and financially supported her during her subsequent medical internship and residency program. In exchange for this valuable free medical education, Captain Rhodes agreed to serve two years in active service in the Army. She began that term of active service in July of 2008 and had no concerns about fulfilling her military obligation until she received orders notifying her that she would be deployed to Iraq in September of 2009.

Captain Rhodes does not seek a discharge from the Army; nor does she wish to be relieved entirely from her two year active service obligation. She has not previously made any official complaints regarding any orders or assignments that she has received, including orders that have been issued since President Obama became Commander in Chief. But she does not want to go to Iraq (or to any other destination where she may be in harm’s way, for that matter). Her “conscientious objections” to  serving under the current Commander in Chief apparently can be accommodated as long as she is permitted to remain on American soil.

Captain, you've just been called a coward by a United States District Judge. Now how do you feel?

Plaintiff’s challenge to her deployment order is frivolous. She has presented no credible evidence and has made no reliable factual allegations to support her unsubstantiated, conclusory allegations and conjecture that President Obama is ineligible to serve as President of the United States. Instead, she uses her Complaint as a platform for spouting political rhetoric, such as her claims that the President is “an illegal usurper, an unlawful pretender, [and] an unqualified imposter.” ... She continues with bare, conclusory allegations that the President is “an alien, possibly even an unnaturalized or even an unadmitted illegal alien . . . without so much as lawful residency in the United States.” ... Then, implying that the President is either a wandering nomad or a prolific identity fraud crook, she alleges that the President “might have used as many as 149 addresses and 39 social security numbers prior to assuming the office of President.” ... (emphasis added).) Acknowledging the existence of a document that shows the President was born in Hawaii, Plaintiff alleges that the document “cannot be verified as genuine, and should be presumed fraudulent.” (... (emphasis added).) In further support of her claim, Plaintiff relies upon “the general opinion in the rest of the world” that “Barack Hussein Obama has, in essence, slipped through the guardrails to become President.” ... Moreover, as though the “general opinion in the rest of the world” were not enough, Plaintiff alleges in her Complaint that according to an “AOL poll 85% of Americans believe that Obama was not vetted, needs to be vetted and his vital records need to be produced.” ...

Cites omitted, but I'll note that some of them refer to page 148 of the complaint. That's not a brief, that's a book. I would sanction Taitz on that basis alone, which is one of many reasons I am not a judge.

Finally, in a remarkable shifting of the traditional legal burden of proof, Plaintiff unashamedly alleges that Defendant has the burden to prove his “natural born” status. ... Thus, Plaintiff’s counsel, who champions herself as a defender of liberty and freedom, seeks to use the power of the judiciary to compel a citizen, albeit the President of the United States, to “prove his innocence” to “charges” that are based upon conjecture and speculation. Any middle school civics student would readily recognize the irony of abandoning fundamental principles upon which our Country was founded in order to purportedly “protect and preserve” those very principles.

In three sentences, Judge Land proves why Article III rocks. Do you think the rightwingers are going to go after him? Guess who appointed him: George W.  (This is the first time that I can recall ever wanting to post a smiley emoticon on this blog.)

On to Footnote 5:

One piece of “evidence” Plaintiff’s counsel relies upon deserves further discussion. Counsel has produced a document that she claims shows the President was born in Kenya, yet she has not authenticated that document. She has produced an affidavit from someone who allegedly obtained the document from a hospital in Mombasa, Kenya by paying “a cash ‘consideration’ to a Kenyan military officer on duty to look the other way, while [he] obtained the copy” of the document. ... Counsel has not, however, produced an original certificate of authentication from the government agency that supposedly has official custody of the document. Therefore, the Court finds that the alleged document is unreliable due to counsel’s failure to properly authenticate the document.

Taitz failed to produce Obama's official Kenyan birth certificate! I can hear 60,000 wingnuts, or a million, give or take, sputtering in confusion.

One more thing: The judge went out of his way to not just dismiss the complaint, but to demonstrate that the plaintiff's allegations didn't survive any of the different legal tests that it would have to satisfy if she hoped to prevail. He didn't need to do that, but I suppose he didn't want to repeat the District Court in Texas' mistake of issuing just a summary order. After it failed one standard, he could have dismissed it on that basis alone, but he chose to show that the complaint lacked any merit, which provides the justification for the best part of the order:

Plaintiff’s counsel is hereby notified that the filing of any future actions in this Court, which are similarly frivolous, shall subject counsel to sanctions. See Fed. R. Civ. P. 11(c).

Rule 11 provides, among other things:

A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.

One thing I want to know is: Is Taitz admitted to practice in the Middle District of Georgia, or did she waive in pro hac vice? If the latter, then there is also some local counsel who vouched for her who is also going to suffer for inflicting this nonsense on the court. Good.

John Yoo: A One-Man Crime Wave

Publius:

As I noted earlier, John Yoo played a starring role in the new IG report (pdf) on the Bush administration’s surveillance program (PSP).  And it wasn’t a flattering one.

Yoo’s actions were dishonest and inappropriate on so many different levels that I’m going to try to break them up into three categories:  (1) procedural abuses; (2) legal inaccuracies; and (3) factual inaccuracies.

The details are summarized pretty quickly and convincingly. John Yoo conspired with other top malefactors in the Bush Administration to violate all Americans' civil liberties and then lied to cover it up. He should be standing trial.

Yet that same John Yoo is a professor at a respected law school and is paid to write occasional columns for my once-great local newspaper.

Local Programming: American Constitution Society Supreme Court Event Noon Thursday

Thursday, July 9th
American Constitution Society Supreme Court Event
ACS’s Philadelphia Lawyer Chapter and the Leadership Conference on Civil Rights present “Replacing Justice Souter: President Obama’s First Pick and The Future of the Supreme Court”, featuring William Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law; Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School; Steven Duffield, Former Policy Director and Chief Counsel, Senate Republican Conference; moderated by Nancy Zirkin, Executive Vice President, Leadership Conference on Civil Rights. The event will be held on Thursday, July 9, 2009, 12:00 p.m - 2:00 p.m., at Montgomery, McCracken, Walker & Rhoads LLP, Justice Owen J. Roberts Room, 123 S. Broad Street, Avenue of the Arts, Philadelphia, PA. RSVP here or on Facebook.

Busted For Breastfeeding While Intoxicated

Not a joke:

Police responding to a domestic disturbance arrived at Stacey Anvarinia's home to find the mother breast-feeding her 6-week-old baby in front of them. And she was drunk, they said.

Officers arrested the woman, who later pleaded guilty to child neglect and faces up to five years in prison. Now her case has touched off a debate among moms about breast-feeding, alcohol — and privacy.

Since Anvarinia's arrest, blogs have been abuzz with comments questioning whether breast-feeding mothers could risk criminal charges if they drink even modest amounts. Authorities insist police were right to make the arrest, even if the mother had not been breast-feeding, out of concern for the child's welfare. ...

It's unclear how much Anavarina had to drink. Police never conducted a blood-alcohol test. Investigators believed she was drunk, and her arrest on a charge of child abuse and neglect did not require a test. ...

"This case is more than just the breast-feeding. It was the totality of the circumstances," said Grand Forks Police Lt. Rahn Farder. "It is quite unusual for a mother to be breast-feeding her child as we are conducting an investigation, whether she was intoxicated or not."

What a mess. First of all, breastfeeding your kid in front of the police is not yet a crime. Second, while I am skeptical of the healthiness of the habit, all kinds of activities that pose a risk to the kid's well-being are legal - say, smoking - and the police would never even imagine they should lock people up for them. It seems that the woman's job as a mom is somehow open to public scrutiny and disapproval, especially when she is pregnant or breastfeeding. Somehow, the more personal and private the matter for a woman, the more authority male police officers arrogate to themselves to control the woman's behavior.

Sexual Orientation Discrimination Outlawed in Delaware

The first state, coming in near the back of the pack:

Anyone who loses a job, a housing opportunity, an insurance policy, a public contract or a spot in a public facility because of sexual orientation now has legal remedy. For the first time, that kind of discrimination is no longer legal in Delaware.

Finally. What took you so long? Next: marriage and other privileges granted other people.

Via Fred Clark.

"Don't Do Anything Stupid"

From the Form 8-K - in this case, a filing required of publicly-traded companies called "Safe Harbor For Forward-Looking Statements" - dated June 23, 2009 and filed with the Securities and Exchange Commission by Expeditors International of Washington, Inc., in response to a question asking the company to estimate future legal fees for an ongoing matter:

Without being trite, as we’ve addressed this topic before on more than one occasion, an attempt to predict the magnitude of these expenses at this juncture would be pointless as we feel the ongoing questions asking us to predict future legal spend have been. We understand everyone’s interest in the topic, it is something we are keenly interested in as well. We would hope, however, that everyone understands that if we actually knew enough to be able to predict our legal expenses, that would be an associative discussion which would follow a much more serious disclosure. At that juncture, legal fees would be of lesser concern.

When you come from a frame of reference, as we do, where $0 spent on legal expense would be the most preferred alternative, having to predict anything beyond that, by its nature, would become inherently and incredibly biased towards our own wants, desires and expectations. To us, this is somewhat akin to being asked to predict how many minutes after being force fed a dead frog we would throw-up…and the operative word is “force,” as we’d never elect to do either on our own. In both cases (the legal fees or swallowing the dead frog) we’re certain we would eventually throw up. In neither case do we know exactly how much money or how much time would pass before we did. In both cases, however, our gut check, no pun intended, is not very much and not very long! It should go without saying that given our druthers, we’d rather not spend the legal fees or eat the dead frog in the first place. Sometimes you don’t get the luxury of deciding what you have to eat. When you do, and it’s unpalatable, it should be obvious that you would eat as little as possible. What we are certain of is that if we were talking about being force fed dead frogs and not incurring excessive legal fees, people would be content accepting at face value that it would be as little as possible. Please rest assured, however, that whatever our legal costs are during the next year, while they will be more than we want, they will be the least amount that we can spend to completely and competently comply with ongoing requests or requirements of the various government and/or civil authorities overseeing these various proceedings.

Further down the document, in response to a question about cost-cutting measures:

We initiated a hiring freeze last year. There are, of course, reasonable and logical exceptions that need to be made in instances, for example, where new business comes on—trying to handle new business with inadequate resources flies in the face of one of our 2009 corporate goals—“Don’t do anything stupid”. Our hiring freeze is also a “Don’t do anything stupid” (D²AS) kind of hiring freeze.

I like the fact that they made "Don't do anything stupid" a defined term - "D²AS". That's the kind of touch a lawyer appreciates.

(Via Ashby Jones at the WSJ Law Blog.)

First Trial of Gitmo Captive in U.S.

Good move:

The Obama administration on Tuesday transferred its first Guantánamo detainee to U.S. soil by having U.S. marshals move a Tanzanian man from Guantánamo to New York City for trial on capital terror charges.

A predawn Justice Department statement said Ahmed Ghailani, about 35, was being housed in the Metropolitan Correction Center, a medium to maximum-security lockup in downtown Manhattan that has held everyone from alleged al Qaeda arch-terrorists to financier Bernard Madoff.

Ghaliani, born in Zanzibar and captured in Afghanistan, had been at a secret Super Max-style lock-up at the remote U.S. Navy base in southeast Cuba for former CIA captives called Camp 7.

He faced arraignment in federal court later in the day as an alleged co-conspirator in the Aug. 7, 1998, U.S. Embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania, that killed 234 people.

Okay, do that 200 more times and then we're done. Seriously, it will be more difficult than that, but at least this is a start.

Ambinder notes:

Notice the date that Ghailani arrived at Guantanamo: 2006 -- that's after the reign of enhanced interrogation techniques had ended...after the torture that extracted (lots of bogus information and some accurate information) from his fellow detainees was put to an end. There was plenty of collateral information about Ghailani's involvement in the embassy bombings, and so the decision to grant him an Article III trial was probably one of the easier calls the administration had to make.

That is, Ghailini probably wasn't tortured, so that won't hinder the admissibility of any incriminating statements he may have made.

It's Okay If You're a Cop

Police officers probably feel they more often get treated like shit than are given breaks, but when stuff like this happens, it just galls me:

Back in September 2006 -- with no lights or siren -- [New Jersey State Trooper] Robert Higbee ran a stop sign while in pursuit of a speeding suspect in Upper Township. 

Christina and Jacqueline Becker were on their way to buy milk, and happened to be in his path.

He was acquitted of vehicular homicide, which in New Jersey requires a showing that the person driving acted recklessly:

A person acts recklessly when (he/she) consciously disregards a substantial and unjustifiable risk that death will result from (his/her) conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant's conduct and the circumstances known to (him/her), disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant's situation.

So, you're engaged in a high-speed pursuit, in this case doing 80 in a 35 mph zone, and you don't have your lights or siren on. And you end up killing two kids. In any comparable civilian circumstance, that driver would not only be going to prison, he'd be getting the max. But because this guy is a cop, he walks.

"I Am The Government"

The judge who wrote this (which is funny but a pdf) turns out to be a power-mad drunk who sexually assaults his staff.

New Hampshire Legalizes Gay Marriage

Some good news for a bleak day.

The First Black President Nominates the First Hispanic Supreme Court Justice

And the first black President hands the Republican Party a dilemma: Further alienate the country's fastest-growing minority group or abandon their "Party of No" resistance strategy at the first test?

It's like the Civil War wreath-laying thing for Memorial Day. Yes, Obama continued the practice of honoring the dead traitors. It's an expression of his avowed Lincolnism - malice for none, charity toward all.  But he also began the practice of sending a wreath to the memorial to African-American Union soliders - the ones that the Confederates would routinely murder or enslave if they managed to capture them. The contrast is nice and instructive.

It's so nice we elected not just the smart one, but the shrewd one.

Department of Really Bad Ideas: Forging Homeland Security "Photography License"

I appreciate the impulse, but this was a fucking stupid thing to do.

ACLU of PA and Anthony Romero on LGBT Rights Tomorrow Night

Join the ACLU of Pennsylvania’s Greater Philadelphia Chapter for a frank discussion about the current state of LGBT rights and what we can do to ensure equality for ALL Americans.

Featuring:

Anthony Romero

Anthony Romero, Executive Director, National ACLU
Stephen Glassman, Chair, Pennsylvania Human Relations Commission

When: Monday, May 11, 2009, 7:00 p.m.

Where: The Hub, Cira Centre , 2929 Arch Street, Philadelphia
(across from 30th Street Station) Directions and parking information

You are invited to attend a wine and cheese reception before the program beginning at 6:15 p.m. at the same location.

Free & open to the public. No RSVP needed.

Questions? Contact us at aclupa@aclupa.org or 215-592-1513 x122.

I Must Have Missed That Memo

Shorter Michael Kinsley:

Even though Bush denied ordering people to be tortured and covered up the fact that he did, we're all responsible for it because he won the 2004 election. Prosecute yourself first!

Poor, Oppressed White Men

Mark Halperin reveals the big problem with Obama replacing Souter with a woman:
I love that the "white man" depicted is from a stock photo site. It doesn't matter to Halperin which white man gets the job, so long as one gets the job.

Souter to Retire

I figured Specter switching was part of a Supreme Court deal, but damn, that was fast.

Hopey-Changey: Administration Caves on Extremism Report

I'm sorry, so sorry:

A detailed account of the meeting from the American Legion states that "Hunched forward with head bowed, the Secretary of Homeland Security looked the National Commander of The American Legion straight in the eye and said, very quietly, 'I’m sorry, Dave.'"

"Nice hat, too."

Next I expect Napolitano to apologize to some militia and white-supremacist organizations.

Local Programming: ACLU Executive Director Anthony Romero on LGBT Rights

Monday, May 11th:

Join the ACLU of Pennsylvania’s Greater Philadelphia Chapter for a frank discussion about the current state of LGBT rights and what we can do to ensure equality for ALL Americans.

Featuring:

Anthony Romero

Anthony Romero, Executive Director, National ACLU
Stephen Glassman, Chair, Pennsylvania Human Relations Commission

When: Monday, May 11, 2009, 7:00 p.m.

Where: The Hub, Cira Centre , 2929 Arch Street, Philadelphia
(across from 30th Street Station) Directions and parking information

You are invited to attend a wine and cheese reception before the program beginning at 6:15 p.m. at the same location.

Free & open to the public. No RSVP needed.

Questions? Contact us at aclupa@aclupa.org or 215-592-1513 x122.

Hopey-Changey for CIA Torturors

They were just following orders:

The Justice Department will not prosecute CIA officers who used harsh interrogation techniques against terrorism suspects, Obama administration officials said this afternoon, as they released four Bush-era legal memos detailing practices that critics have likened to torture. ...

Both Obama and Holder for months have indicated a desire to look forward rather than ignite investigations that could alienate the intelligence community and ignite partisan rancor. "This is a time for reflection, not retribution," Obama said in his statement this afternoon even as he bemoaned the recent passing of a "dark and painful chapter in our history."  ...

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," [Attorney General Eric H. ] Holder said in a statement.

For the first time, officials said today that they would provide legal representation at no cost to CIA employees subjected to probes by international tribunals or U.S. congressional inquiries. They also said they would indemnify agency workers against any possible financial judgments.

What makes this decision worse for me is that I agree with it.

Tax Topic: Standard Deduction for Kidnapped Children

Tax Topic 357:

Tax Information for Parents of Kidnapped Children

You may claim a kidnapped child as your dependent if the following requirements are met:

1. The child must be presumed by law enforcement to have been kidnapped by someone who is not a member of your family or a member of the child's family, and
2. The child had, for the taxable year in which the kidnapping occurred, the same principal place of abode as the taxpayer for more than one-half of the portion of such year before the date of kidnapping.

If both of these requirements are met, the child may meet the requirements for purposes of determining:

• The dependency exemption
• The child tax credit, and
• Head of household or qualifying widow(er) with dependent child filing status.

This tax treatment will cease to apply as of your first tax year beginning after the calendar year in which either there is a determination that the child is dead or the child would have reached age 18, whichever occurs first.

I'm glad the IRS provides guidance for this situation, but why is there no deduction if the child is kidnapped by a family member? Is there a deduction available for the kidnapper in that case? It would be safe for them to do so, because I assume the IRS is not checking returns for the Social Security numbers of kidnapped children.

(Via.)

Taping Cops

Here's what happens when a black man drives a Jag:

[Terence] Jones says he remains "bothered and upset" that he was prosecuted for filing a false police report when he complained he was racially profiled in a 2007 traffic stop in Woolwich Township.

Jones, who is African American, had faced up to 18 months in prison; his restless nights dragged on longer than a year until his trial in December.

Visibly angered, Superior Court Judge M. Christine Allen-Jackson had called the case "chilling" when she found him not guilty. It was over, and Jones sobbed in relief. ...

A videotape of the stop, recorded by a camera in the police car, was never played for the grand jurors. It shows Patrolman Michael Schaeffer, who is white, pulling Jones over on a blustery night and asking why Jones was exiting an industrial park. ...

Jones believes the tape saved him.

"It would have been my word against the police officer's," he said. "I might have been doing 18 months in jail."

Or, as field negro says, he might be dead.

And here's what happens when you give unchecked authority to wage a war on (some) drugs:

Officer Jeffrey Cujdik told store owner Jose Duran that police were in search of tiny ziplock bags often used to package drugs. But, during the September 2007 raid, Cujdik and fellow squad members seemed much more interested in finding every video camera in the West Oak Lane store.

"I got like seven or eight eyes," shouted Officer Thomas Tolstoy, referring to the cameras, as the officers glanced up. "There's one outside. There is one, two, three, four in the aisles, and there's one right here somewhere."

For the next several minutes, Tolstoy and other Narcotics Field Unit officers systematically cut wires to cameras until those "eyes" could no longer see.

Then, after the officers arrested Duran and took him to jail, nearly $10,000 in cash and cartons of Marlboros and Newports were missing from the locked, unattended store, Duran alleges. The officers guzzled sodas and scarfed down fresh turkey hoagies, Little Debbie fudge brownies and Cheez-Its, he said.

What the officers didn't count on was that Duran's high-tech video system had a hidden backup hard-drive. The backup downloaded the footage to his private Web site before the wires were cut. ...

Duran's video bolsters allegations by eight other Philadelphia store owners who said that Cujdik and other officers destroyed or cut wires to surveillance cameras. Those store owners also said that after the wires were cut, cigarettes, batteries, cell phones, food and drinks were taken.

You get the point. Without cameras, some cops can and will lie your ass into prison or a grave, while covering up their own crimes.  I don't want to characterize the percentage of cops who are bad, because it's not relevant. It happens, that's a fact.

Cameras can protect you. But you have to have a camera on you, because you can't count on a police car dashboard camera or a surveillance camera. One idea I have had for a while is a rig involving cameras in your cellphone and wristwatch that would upload video and sound to a server on the web with a press of a button, as Mr. Duran's cameras did, so there would be no tape for them to destroy. Worst case scenario, if you wound up dead someone would be able to watch how it went down. I don't think cell phone data networks are fast enough yet to do that, but it is a product I would definitely think would take off when it is feasible.

Old Philly Law Firm to Close

The former Wolf, Block, Schorr & Solis-Cohen will dissolve:

Hit hard by defections of top lawyers and tight credit markets, partners at Wolf Block voted this afternoon to disband the 106-year-old law firm, a Philadelphia institution that for generations played a central role in the city's civic, legal and governmental affairs.

The decision was made during an emotional partners meeting at the firm's Center City offices. Lawyers from offices in other cities were video-conferenced in.

That's unbelievable. How terrible for the staff and associates.

Like many other firms, Wolf Block had been hit by a sharp fall-off in revenue as credit markets seized last fall and the housing market collapsed. But the firm also had been plagued with defections by top fee generators and faced further defections in the coming months. ...

Little more than a year ago, several of the firm's top litigators left to join the Center City firm of Hangley, Aronchik, Segal and Pudlin. That departure and others over the years tended to underscore Wolf Block's reputation as a firm wracked by internal discord.

I can confirm the discord, but always thought that was a feature, not a bug, at a idiosyncratic place like Wolf.

Bye-Bye, Vince

There was a sideshow about one juror twittering updates about deliberations but the judge smacked down the defense motion to replace that juror. Max Kennerly thinks that's the right result.

Reading Comprehension at the Washington Post

Check this out:
The second paragraph of the piece says "the court did not rule on the merits", which is, you know, the exact opposite of what the headline says.

Hopey-Changey of the Day: Obama Goes to Bat for Eavesdropping Telcos

American Constitution Society:

The Obama administration is defending the constitutionality of a law that shields telecommunications companies from legal challenges over their support of the Bush administration’s domestic spying program. Legal Beat reports that the Justice Department’s position in a brief filed in a California federal court “underscores the surprising degree to which the Obama administration – at least in court – is determined to shield President Bush’s controversial counter-terrorism policies from legal challenge or even public scrutiny.” According to Legal Beat, the administration is urging U.S. District Judge Vaughn R. Walker to dismiss “a raft of consolidated lawsuits” from customers of telecommunications companies who argue their privacy rights were violated when the companies helped Bush administration eavesdrop on the calls and e-mail.

I don't know the merits of the constitutional challenge - can't even imagine what it is, frankly - but whether it's a good case or not, Obama clearly wants to let sleeping dogs lie. How's that for half-assed analysis?

Hope-Changey of the Day

It's all about the prerogatives:

The Obama administration, siding with former President George W. Bush, is trying to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails.

Two advocacy groups suing the Executive Office of the President say that large amounts of White House e-mail documenting Bush's eight years in office may still be missing, and that the government must undertake an extensive recovery effort. They expressed disappointment that Obama's Justice Department is continuing the Bush administration's bid to get the lawsuits dismissed.

A Good Time to Apply to Law School

Inky:

Law school applications typically rise in economic downturns, as job seekers give up hope and seek to ride out hard times in graduate school. But the increasingly uncertain job market, fears about how and when it will recover, and difficulty in finding student loans apparently have discouraged potential applicants. ...

The Law School Admissions Council, based in Newtown, Bucks County, which tracks law school admissions data and prepares the LSAT, the law school admissions exam, said that more than a year into the current recession, applications across the nation were off about 1 percent, at 56,481.

This probably doesn't apply to elite law schools and not all of the rest are subject to it, either. But overall, the pool of law school applicants is falling, so if you have good LSATs and can find funding, it's a good time to apply.

Facebook Relents on TOS Change - For Now

Terms of Use Update

A couple of weeks ago, we posted an update to our Terms of Use that we hoped would clarify some parts of it for our users. Over the past couple of days, we have received a lot of questions and comments about these updated terms and what they mean for people and their information. Because of the feedback we received, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised. For more information, visit the Facebook Blog.

The last sentence was there until just a second ago - now the blog itself is missing. Whatever, they gave up, temporarily.

Update: The ever-changing non-denial denial, er, clarification:

Over the past few days, we have received a lot of good feedback about the new terms we posted two weeks ago. Because of this response, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised.

Almost there, dudes. Try to get someone involved in drafting your response who isn't pissed off at your members for, like, noticing shit.

Update on Facebook TOS: "Go Ahead and Be Outraged."

Amanda French:

With today’s outrage over Facebook’s newly altered Terms of Service at its peak, I figured I’d do a quick comparison of their terms of service as regards user-uploaded content to the terms specified by other social networking sites, just to see if said outrage is fully justified. It looks as though the finger-pointing at the Bush robots.txt file wasn’t justified, for instance, and I was guilty of spreading that story.

Conclusion? Go ahead and be outraged. Facebook’s claims to your content are extraordinarily grabby and arrogant.

She then breaks down the ways Facebook's TOS is way beyond what other sites use. Her objections come down to these two:

• No one else besides Facebook keeps the license to your stuff permanently, even after you have deleted your account.
• Facebook claims it has a license to any content on your other websites if you post a "Share this on Facebook" link on it.

The way I read the FB TOS, it's worse than that: I think they're claiming a license to any material you link to from FB. But whatever; it's incredibly overreaching.

Update 2/18/09: FB reverts to the old TOS, for now.

Facebook Gives Itself Permanent, Irrevocable License to Use Your Stuff and Your Image

Don't post pictures or other creative content to Facebook if you want to retain your rights to use it commercially:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

What all that means is if you ever post anything to Facebook, no matter how briefly, and even if you delete your account, they own rights to it. The right is non-exclusive, which means that they very generously allow you to use it, too.

(Via.)

Update: It's worse than I initially thought. Check out the definition of User Content:

"User Content" means any photos, text, link, audio, video, designs, ads and anything else that you Post on or through the Facebook Service. "Post" means to upload, post, transmit, share, store, link to or otherwise make available on or through the Facebook Service.

(Emphasis added.)

I think this makes clear that Facebook intends to take a license in all content of yours that you link to. So, if you link to a post on your blog, they claim they have a license to reprint your blog in its entirety.

A user group, People Against the new Terms of Service (TOS), has been created.

Update 2/18/09: Victory of sorts.

Things That Would Be Illegal in the US: Promotional Drawing Prize Includes Bag of Pot

The UK website for a movie called "The Wackness" has a no-purchase-necessary drawing in connection with promoting the film. The prize is a free trip to Amsterdam and a gram bag of pot from an apparently well-known coffeehouse.

Suffice to say, this offer could not be made by a U.S. company.

If Katie Says It's Legit, It's Legit

Here's an ad that's running on Facebook:

If you click it, it goes to a get-rich-quick site run by a guy named Kevin Hoeffer. The problem for Mr. Hoeffer, I think, is that it's unlikely that Katie Couric gave permission for her image to be used in a commercial ad. This is a violation of her right of publicity.

I just lobbed a message into Facebook informing them about it.

Ruth Bader Ginsburg Has Cancer

Oh, no:

US Supreme Court Justice Ruth Bader Ginsburg is receiving treatment for pancreatic cancer, the court says.

It says the 75-year-old justice had surgery in New York and is expected to remain in hospital for up to 10 days.

The Supreme Court said her illness appeared to be in its early stages. Pancreatic cancer is one of the deadliest forms of cancers.

(Via.)

You Can't Take Back a Pardon?

Interesting argument that Bush's attempt to revoke the pardon he granted to a Republican donor is ineffective:

The only argument the White House offered is that Toussie never received a paper copy of an individual warrant from the Office of the Pardon Attorney. All indications are that the administration cooked up this theory for this case. The master warrant that Bush signed and sealed did not say that he was ordering the pardon attorney to issue individual pardons on his behalf. It said that the people on the list were hereby pardoned. When the office called the recipients, it didn't tell them that the pardon was in the mail; it told them that they had been pardoned. And they accepted. ...

On his way out of office, President Bill Clinton pardoned more than a hundred people, including his brother, his longtime associate Susan McDougal, former housing secretary Henry Cisneros and, infamously, the financier Marc Rich. Because of the volume of Clinton's last-minute pardon jamboree, there was no way to deliver all of the individual warrants before George W. Bush took office. Some of them still have not been physically delivered.

But as president, Bush never purported to have the power to revoke any of these pardons. Surely he would have unpardoned Rich if he could have. And if Bush were right about Isaac Toussie, then he could have unpardoned both him and Rich. But he wasn't, and he couldn't.

Too Many Tabs Open

When I start counting on Firefox's restore session feature to make sure I don't lose the 37 tabs I have up, it's time to do a link dump. In no particular order:

In Britain, free speech supporters are pushing back against a new law which criminalizes certain kinds of porn:

Section 63 of the Criminal Justice and Immigration Act 2008 comes into force on 26 January and makes owning offending pictures a criminal offence punishable by up to three years' imprisonment. An image is deemed to be extreme if it "is grossly offensive, disgusting or otherwise of an obscene character" and portrays in any way an act which threatens a person's life, or which results or appears likely to result in serious injury to someone's genitals or breasts.

The law was passed earlier this year following a mother's emotive campaign after her daughter was killed by a man who claimed he was addicted to violent porn.

Opponents have no problems with two provisions banning images of bestiality or necrophilia - both of which are already illegal to do - but fear that the other definitions are so vaguely worded that even images of consenting adults engaging in fictional violence will now be outlawed, giving Britain the toughest anti-porn laws in Europe.

In related news, one of the last acts of the Bush administration was to drop new regulations on the disclosure of adult performer's ages, known as "2257 rules". You'd think such a reasonable goal couldn't be twisted to nefarious ends, but you'd be wrong:

Needless to say, from a sexually progressive standpoint, these new rules are, if anything, worse than the original....and serve the basic purpose of essentially using paperwork to drive the porn industry out of existence.

Presumably, implementation of these new 2257 regs have been suspended along with all other pending rules by the Obama administration. One delicious side effect of the rules, though, would be to criminalize the movies produced by anti-porn activists, which often use adult movie clips without any 2257 notices. I had intended to dig into the substance of the regs, but time ... yeah.

Adult Friendfinder, the largest adult dating site, is finally going public. The company plans to raise up to $460 million in the offering. I have written about AFF trying to go public in the past.

Two trials involving the distribution of the precursor chemical needed to make meth, with wildly different sentences. You'd probably never guess the difference is based on class and race.

You probably heard of this already by now, but Politifact is keeping track on the hundreds of promises Obama made during the campaign. He said to hold his administration accountable. Politifact doesn't have the Obamameter widget up yet, though.

How to preserve your Obama memorabilia.

Philly Beer Week is March 6th - 15th. Ten days seems like a week if you're really drunk, so there's that.

Down to a manageable 10 tabs now.

The Magic Words

So, Chief Justice Roberts re-administered the Oath of Office to Obama yesterday, as a result of Roberts' flub during the swearing-in on Tuesday.  First of all, obviously, how humiliating for the Chief to mess up the climactic moment of the biggest political event in 50 years. Did they not rehearse? I mean, really.

I find it fascinating that unless the right form of words are said, Obama is not President. The second swearing-in isn't just a formality or a chance to get the thing out smoothly, it's a lawyer's caution that someone may otherwise claim the person occupying the White House does not validly hold the office. Apparently, a similar problem has arisen in two prior inaugurations, with the same fix administered each time.

It also struck me how on Tuesday aggressively Roberts queried Obama at the end with the question, "So help you God?", which isn't part of the oath, of course.

Obama and Holder Make Bush Pardon for CIA Torturers Inevitable

Good news:

Attorney General-nominee Eric Holder Jr. says waterboarding is torture.

At his Senate confirmation on Thursday, Holder issued a clear answer to a question that two previous attorney generals have deftly avoided.

Holder unequivocally said the harsh interrogation tactic that has been used by the CIA is torture.

It probably was going to happen in any case, but this pronouncement means that Bush will be compelled to pardon all CIA interrogators and their supervisors for any crimes committed while questioning prisoners. Otherwise, those employees would be subject to prosecution and, worse from Bush's perspective, might take plea deals in exchange for rolling over on the higher-ups. Bush always takes care of his friends, so he can't let that happen. Also, institutionally the Bush family has a deep connection to the intelligence world through GHWB's short stint as DCI, the oil industry and military contractors.

Mold Spores, Commies and Crazy Libs

A reminder of what the mainstream of the Republican party is like:

"My tentative plans are to gerrymander all of those crazy libs right out of the section," [Bradley Schlozman] said in an e-mail in 2003. "I too get to work with mold spores, but here in Civil Rights, we call them Voting Section attorneys," he confided to another friend.

He hoped to get rid of the "Democrats" and "liberals" because they were "disloyal" and replace them with "real Americans" and "right-thinking Americans."

He appears to have succeeded by his standards, according to an inspector general's report released Tuesday. Among the newly hired lawyers whose political or ideological views could be discerned, 63 of 65 lawyers hired under Schlozman had Republican or conservative credentials, the report said.

Conservatives like to hype the threat of the ideological bent of liberals, but the fact is, it's projection. Mold spores? You know what? I look forward to running over your fucking asses with a bulldozer for at least 2, maybe 4 years. Fuck you.

One Way to Deal With Gitmo Detainees and Uphold the Rule of Law

Obama has announced that he will issue the order ending the military commissions and beginning the process of closing Gitmo, but figuring out what to do with some of the prisoners will take longer. Partly that's because we can't find anyone to take those we want to release because they're, you know, innocent and partly because there are some Obama doesn't want released because he thinks they're guilty. He says the evidence wouldn't stand up in court, but nevertheless he believes the charges are true.

There has been some gnashing of teeth from liberals and some crowing from conservatives over this perfectly predictable outcome. The presumption seems to be that either Obama must let these guys go right now and vindicate the Constitution, on one hand, or hold them and acknowledge that Bush and Cheney were right all along (about everything, presumably). That is, liberty and security are irreconcilable.

There is at least one way I can think of to give these guys a fair trial: Start over. The evidence against them currently is tainted by secrecy, hearsay and torture, so don't use it. Create a firewalled investigative team and send them into the field. Collect witness statements. Examine evidence. Put together a case. If there is enough to indict, then do it. Give them real lawyers - there are plenty of volunteers available - who can put on a real defense. If there isn't enough to indict, then let them go.

There are probably lots of other ways to accomplish the goal of protecting both freedom and safety.  That's what the legal system is supposed to be all about. But you have to start off with personnel who are acting in good faith, and starting January 20th, I think we'll have that.

Pretty Good for Thirty Seconds' Worth of Work

The Senate convened for thirty seconds yesterday, a procedural move designed to block some of Bush's last appointments from taking effect. The full list is here. It includes some 11 judges of the Circuit Courts of Appeal and 20 District Court judges.

The most useful 30 seconds in Congressional history.

Pre-Planning on Closing Gitmo: "The Difference Is That He Tries to Solve It"

As you probably know:

The Pentagon is drawing up plans to shut the military prison at Guantanamo Bay, Cuba, to be prepared for any order from President-elect Barack Obama, who has promised to close the controversial facility after he assumes office Jan. 20, a defense official said yesterday.

Defense Secretary Robert M. Gates instructed his staff to have a blueprint in place by the time of the inauguration in case Obama decides the closure of the facility is one of his "first orders of business," said Pentagon press secretary Geoff Morrell.

I read this to mean that Obama told Gates that closing Gitmo would be one of his first orders of business, and make him do this as the condition of him keeping the job. And by "this", I mean not just plan to close Gitmo, but to announce it publicly. It would be both appropriate and Obama-like if he were to announce in his inaugural address that the first executive order he will sign is the one directing Gates to begin the process of closing the prison.

Gates "has asked his team for a proposal on how to shut it down -- what would be required specifically to close it and move the detainees from that facility while at the same time, of course, ensuring that we protect the American people from some dangerous characters," Morrell said at a news briefing.

Any plan will probably address whether to also abolish the military commission system and, if so, what kind of legal framework can be substituted to put detainees on trial. The U.S. government will have to negotiate homes in third countries for as many as 60 detainees who have been cleared for release but cannot be returned to countries such as Uzbekistan and Libya because of fears they will be tortured. And the next administration will have to find or build appropriate detention facilities in the United States, as well as negotiate with local and state authorities who may not want terrorist suspects housed in prisons in their areas.

So what happens to the people we release?

European nations have begun intensive discussions both within and among their governments on whether to resettle detainees from the U.S. military prison at Guantanamo Bay, Cuba, as a significant overture to the incoming Obama administration, according to senior European officials and U.S. diplomats.

Funny/sad:

The willingness to consider accepting prisoners who cannot be returned to their home countries, because of fears they may be tortured there, represents a major change in attitude on the part of European governments. Repeated requests from the Bush administration that European allies accept some Guantanamo Bay detainees received only refusals.

The Bush administration "produced the problem," Karsten Voigt, coordinator of German-American cooperation at the German Foreign Ministry, said in a telephone interview. "With Obama, the difference is that he tries to solve it."

If goodwill were money, Bush would be history's greatest spendthrift.

Who is considering taking detainees? We don't know exactly:

At least half a dozen countries are considering resettlement, with only Germany and Portugal acknowledging it publicly thus far.

Okay, who else? My guesses are U.K., Spain, France and Poland. Not Italy, I don't think.

This is also well played:

European officials put out tentative feelers to Barack Obama's team to see whether it was willing to discuss the issue, but the incoming administration has rejected holding even informal talks until after the Jan. 20 inauguration, according to European and U.S. officials aware of the outreach.

"President-elect Obama has repeatedly said that he intends to close Guantanamo, and he will follow through on those commitments as president. There is one president at a time, and we intend to respect that," said Brooke Anderson, chief national security spokeswoman for the Obama transition team. ...

"I assume the new administration will have someone on a plane to Europe within minutes of Obama being sworn in," said Sarah E. Mendelson, director of the Human Rights and Security Initiative at the Center for Strategic and International Studies and the author of a report on closing Guantanamo Bay.

On a plane? I wouldn't be surprised if the envoy weren't already on the ground in Europe at the moment Obama's hand hits the bible.

So what is Obama willing to do to "solve it"? Again, we don't know, but the Europeans have some things they'd like to see:

The Europeans want a clear commitment to close Guantanamo Bay and an acceptance of common legal principles in the fight against terrorism, including those regarding the treatment of suspects, European officials said. A series of meetings between the United States and the European Union on a legal framework for combating terrorism has considerably narrowed differences on the application of human rights law, refugee law and humanitarian law, said [Portugal's Foreign Minister Luis] Amado and John B. Bellinger III, a legal adviser at the State Department.

Elsewhere in the article, a German official is quoted as saying the U.S. cannot place any restrictions or conditions on how European countries handle the detainees. They saw what happened with David Hicks and the embarrassment Bush caused the Aussie government.

The Europeans also want Obama to agree to transfer a small number of detainees to the United States before they attempt to sell a resettlement program to their own citizens.

"I believe that will happen," Amado said.

Interesting. There have been no talks with the Obama people, but Amado has reason to believe that the new administration will first take some innocent detainess before Europe does. That sounds to me that there have been talks with people close to but not in the transition. Which is how it should be.

One group likely to be settled here is 17 Chinese Uighurs who have been held for years at Guantanamo Bay. The Bush administration has acknowledged that the Uighurs are not enemy combatants, and in October a federal judge ordered them released into the United States.

In interagency discussions, the State Department has argued that the Uighurs be brought to the United States to help persuade Europe to resettle other detainees. But a State Department official, who spoke on the condition of anonymity because of the sensitivity of the issue, said the departments of Homeland Security and Justice, as well as White House officials, considered resettlement in the United States a "red-line" issue.

Yeah, it's a red-line issue for Bush to have to be confronted with the living, breathing evidence of his incompetence and ideological blinders. I hope some of the Uighurs settle in Dallas.

Ft. Dix Jury Reaches a Verdict: Guilty

The radio tells me the anonymous, sequestered jury has decided and the verdict will be announced in court at 1:15 p.m. There are a long list of charges and five defendants, so it will take some time.

Update: The United States District Court has a page up for the trial which includes the transcript, jury form and jury charge. Reading through the charge, it seems clear there will be convictions in the case, because the defendants are charged with weapons violations and being in the country illegally. I assume these things are easily proved because they don't rely on the informants' testimony. The question is whether they get convicted of conspiracy to kill U.S. soldiers and attempted murder, the principal charges.

Update: Guilty on conspiracy to kill servicemembers, not guilty of attempted murder. Bye-bye. That's life. Lesson: Don't be (a) stupid macho losers and (b) Muslim. I look forward to the FBI infiltrating bars and rod & gun clubs across the nation, looking for conspiracies of NRA members to assassinate the President. No slam on the jury; they just decided the case before them. The fault here rests with the cops and prosecutors in picking the people they will go after and who they won't.

The Fort Dix Trial Nears an End

The jury is in day five of deliberations in the trial of five foreign-born Muslim men in New Jersey who are accused of planning an assault on Ft. Dix. When this case was first reported, I called it "Mohamed Mitty", because the defendants sounded like they were fantasizing, rather than planning. (Fantasy is not yet a crime.) As Aquagirl said:

I have thought from the moment this story broke that these guys are no different from young disenfranchised losers all over the country, sitting around drinking beer and smoking dope and talking about how they're going to fuck up this or that dude. Or make a big score on a drug sale or rob a bank or ... 99% of which comes to nothing. But this is the big scary because these guys were Muslim instead of white. It just goes to prove how ridiculous the whole concept of this war on terror is. This is our big terror moment? Almost six years of fucking with the Constitution because of some pizza delivery guys whose mouths are writing checks their ass can't cash? Pathetic.

The trial has been entertaining for its descriptions of the enterprising work done by the FBI informants in the case. One of them, an illegal alien former used-car salesman facing deportation and with a prior conviction for fraud, was paid $240,000 and is heard on the tapes urging the stoner defendants on to jihad. At one point, one of the defendants became alarmed by the informant's request of a map of Ft. Dix and reported him to the FBI. Nothing came of it.

Another defendant is heard on the tapes saying that he wasn't going to hurt anyone, but you had to watch out, because if you're a Muslim in America even a normal conversation can get you charged with conspiracy.

The informant who requested the map now lives in an undisclosed location and is still drawing an FBI salary of $1,500 a week, with $1,400 per month for rent, pending the outcome of the trial, but complains he might be better off on welfare. His body mic inadvertantly picked up a conversation he had with a cousin back home in Egypt in which he advised the cousin to burn down the house of another family with whom he was having a business dispute and shoot the survivors. The business was pirating DVDs. The informant was also caught smoking pot four days before the trial started. I think I need a gig as an FBI informant. For a neat quarter-mil, I'll go shoot the shit with any half-baked hero you want to put on death row, and $1,400 per month would more than cover my mortgage.

The jury has asked for transcripts of the testimony about the informant asking the defendants to produce a map of Ft. Dix. I take this and the length of time they've been deliberating as hopeful signs they might acquit. But whatever they do, it sounds like they're taking the job seriously.

Have Yourself a Secular Little Nondenominational Holiday

Duncan says:

I've long been puzzled by the difficulty many - even fairly nonreligious people - have in seeing them as secular holidays grafted onto religious ones. Christmas was about trees and Santa and presents. Easter was about chocolate bunnies and colored eggs. While both have their roots in religious traditions, the secular traditions easily exist independently.

Which is correct. There is no Establishment Clause problem with a government entity putting up lights and wishing people a generic "Happy Holidays".

But then he says:

So, for holiday displays on public property, trees and lights are fine but nativity scenes and crosses aren't. It really isn't that complicated.

This conflates two issues: Semi-public forums for Free Speech purposes and the Establishment Clause. The Washington State case involves the state opening up a space for speech by private actors. Once it does that, it must not discriminate on the basis of viewpoint. So, if it takes religious messages, then it must take messages from all religions (or those who oppose religion). That's different from the government speaking. In the case of private speech on public property, "nativity scenes and crosses" are fine, iff all other religious displays are permitted, too. Olympia just found out what it means to do that.

Update: Ah, he was making a normative claim that government shouldn't open up limited public fora for religious expression. I tend to agree. Either you get sheepish conformity (with the attendant risk that people begin to think Religion X is the State Religion) or you get uproar. If  there were different displays with a whole lot of mutual respect and tolerance of diverse opinions - then it wouldn't be religion, now would it?

Big Ed Gets Letters

Vincent Lee Stone, Jr., of Tyrone, PA - a lovely, warm, Christian individual - sent Gov. Ed Rendell the following email:

Dear Big Ed, I pray every night that a Christian or Arab puts a bullet through your corrupt jewish skull. Jews are the SLIME of the earth. Your friends on wall st. have manipulated this well programed melt down. I.E. the thievery of good peoples life time savings. The 1858-1929 and the current depression are all caused by Jewish money manipulators. Historically, Jews are known as the the destroyers of nations due to usery and thievery habits. Crooks at large, sponsered by Israel. The world at large wants Israel bulldozed into the sea. Your smug demenor will not protect you ,nor your smile. Recall history,niether the Senate or public stood in the way of the praetorian guard setting Julius Ceasar straight.. Put your ego aside because you are not imune to public outrage. And when the s*** hits the fan and bullets are penatrating the egoes of corrupt officials we don't want to hear you WHINING while your bleeding to death. SIX MILLION MORE!!!!!!!!!!!!!!!!!!!!!!!

(Typos in the original; bowdlerization courtesy of the Pennsylvania State Police. I did not actually count the exclamation points.) Mr. Stone was interviewed by a state trooper and said:

I have been expecting you. I did send an email to the Governor. I dislike him and the government we have now both in Pennsylvania and the United States.I don't like Jewish people. I'm not going to harm the Governor. I don't care if someone else does or not.

Mr. Stone was charged with terroristic threatening under Pennsylvania law:

A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to ... otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.

(18 Pa.C.S.A. § 2706(a)(3).)

He was also charged with harassment:

A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person ... communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures ... .

(18 Pa.C.S.A. § 2709(a)(4).)

The third charge was ethnic intimidation:

A person commits the offense of ethnic intimidation if, with malicious intention toward the race, color, religion or national origin of another individual or group of individuals, he commits an offense under any other provision of this article ... with respect to such individual or his or her property or with respect to one or more members of such group or to their property.

(18 Pa.C.S.A. § 2710(a).)

The first two charges hinge on the existence of a threat having been made. The ethnic intimidation charge is just an add-on. So my question is, did Mr. Stone actually threaten the Governor? 

There are five sentences or sentence fragments that arguably could be interpreted as threatening:

1. I pray every night that a Christian or Arab puts a bullet through your corrupt jewish skull.
2. Your smug demenor will not protect you ,nor your smile.
3. Recall history,niether the Senate or public stood in the way of the praetorian guard setting Julius Ceasar straight.
4. And when the s*** hits the fan and bullets are penatrating the egoes of corrupt officials we don't want to hear you WHINING while your bleeding to death.
5. SIX MILLION MORE!!!!!!!!!!!!!!!!!!!!!!!

The remainder of the email is just ranting about Jews in general and doesn't relate to Rendell in particular.

I don't think any of the sentences listed, taken separately or together, communicate a clear threat. Sentences one and probably three are the expression of a hope that someone else murder Rendell.  Sentences two and four are similar. Sentence five expresses a desire for a second Holocaust. Taken together, it's nasty and insane but not a statement of intent to carry out an attack himself. The statement Mr. Stone gave to the trooper pretty well sums it up:  He doesn't like the government, Jews or Ed Rendell personally. He doesn't plan to harm Rendell, but hopes someone else does.

If I received such an email, I would certainly be alarmed by the venom and vicious racism, and would report it to the police. I certainly understand the State Police checking this nutcase out. I just don't think it's a crime to be a hate-filled anti-Semite. I've read worse things posted in comments on rightwing blogs. If Mr. Stone had sent this email to someone he didn't know with less clout than a governor, I doubt he would be facing charges.

The Meds Must Be Working

For the first time in, like, forever, I am finished with my annual legal education requirement way before the end of the year.

Quote of the Day: We Have Reached a Verdict

Max Kennerly:

I highlight these defense-verdict cases not because I think the jurors were right or wrong -- I have no idea how I would interpret the evidence, I only know press reports on this case -- but to point out that a San Francisco jury, begged for relief by sympathetic, impoverished plaintiffs, sitting in judgment of an immensely profitable defendant that's part of a hated industry, in consideration of facts that turn the stomach and inflame the passion, nonetheless still held in favor of the defendant.

Keep that in mind the next time some says that dumb jurors just take rich people's money and throw it at sympathetic plaintiffs.

Yes. Respect the jury's decision, however it comes out. They have the most difficult job in the room.