The perils of unexamined legislation

Judges rule ACA actually means what it says. [Link]

This result isn’t entirely shocking. As Jonathan Adler, one of the architects of the legal strategy behind Halbig, noted today on a conference call, the government was unable to come up with any contemporaneous congressional statements that supported its view of congressional intent, and the statutory language is pretty clear. Members of Congress have subsequently stated that this wasn’t their intent, but my understanding is that courts are specifically barred from considering post-facto statements about intent.

When you read through the ruling, it’s easy to see the many ways in which the law’s architects brought this on themselves. The law was highly complex, badly drafted and highly controversial. When a Republican won a special election for the Senate in Massachusetts (!), the Democrats had to push it through on a straight party-line vote with some adroit parliamentary maneuvering -- which gave them a health-care law, but one that was badly put together and couldn’t be substantially amended. The gaping holes were patched with administrative fixes, like an Internal Revenue Service ruling that held federally established exchanges to be equivalent to an exchange established by the state. But the vast scale of the law meant that the administrative gymnastics that held it together might not be sustainable.

For example, the core of the government’s case is that Congress cannot have meant to leave federal exchanges without subsidies, because without the subsidies, the insurance markets in states with federal exchanges would inevitably enter into a death spiral. And obviously Congress wouldn’t do that.

The problem, as the justices point out in their brief, is that the government has done just that. Federal territories are subject to the mandates, but they don’t get subsidies. So clearly the IRS and the Department of Health and Human Services think that, at least in some cases, Congress would and did enact exactly the system -- guaranteed issue, community rating, but no subsidies -- that the government lawyers are claiming they would never consider.

Courts are cautious about fatally damaging major laws, and if this ruling stands, it would be pretty damaging. Most of the people who bought new insurance on the exchanges qualified for subsidies; many of them will exit if the subsidies are withdrawn, and those most likely to exit are the young and healthy. Which brings us back to the specter of an insurance market death spiral in states with federal exchanges.

That’s not a guaranteed outcome -- I’ll write more about the possible permutations later today. But even if it’s not guaranteed, it’s certainly a risk. So this is a major ruling, which will potentially have major impact on a major law. And that itself is always a bit surprising. The Fourth Circuit reached the opposite result, in another ruling released today: “the court is of the opinion that the defendants have the stronger position, although only slightly.”

So what happens next? In the short term, the case probably goes to an en banc hearing in front of the full appeals court, sometime in the fall, and then quite possibly to the Supreme Court. In the meantime, the administration says the subsidies will continue to flow, though it’s not clear upon what they are basing that -- whether it expects a stay of the decision pending en banc review, or whether it is signaling their intention to ignore the ruling until the appeals are exhausted.

This quote seems appropriate:

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - - that's all."
(Through the Looking Glass, Chapter 6) 

Refactoring the Law

Now let's do the other 49 states and Federal laws. [Link]

Wow, more of this please [St. Paul Pioneer Press]:

It’s no longer a crime in Minnesota to carry fruit in an illegally sized container. The state’s telegraph regulations are gone. And it’s now legal to drive a car in neutral — if you can figure out how to do it.

Those were among the 1,175 obsolete, unnecessary and incomprehensible laws that Gov. Mark Dayton and the Legislature repealed this year as part of the governor’s “unsession” initiative. His goal was to make state government work better, faster and smarter….

In addition to getting rid of outdated laws, the project made taxes simpler, cut bureaucratic red tape, speeded up business permits and required state agencies to communicate in plain language.

Theory vs Practice

In our criminal justice system. [Link]

Here's how it's supposed to work: Upon evidence that a crime has been committed — Professor Plum, found dead in the conservatory with a lead pipe on the floor next to him, say — the police commence an investigation. When they have probable cause to believe that someone is guilty, the case is taken to a prosecutor, who (in the federal system, and many states) puts it before a grand jury. If the grand jury agrees that there's probable cause, it indicts. The case goes to trial, where a jury of 12 ordinary citizens hears the evidence. If they judge the accused guilty beyond a reasonable doubt, they convict. If they think the accused not guilty — or even simply believe that a conviction would be unjust — they acquit.

Here's how things all-too-often work today: Law enforcement decides that a person is suspicious (or, possibly, just a political enemy). Upon investigation into every aspect of his/her life, they find possible violations of the law, often involving obscure, technical statutes that no one really knows. They then file a "kitchen-sink" indictment involving dozens, or even hundreds of charges, which the grand jury rubber stamps. The accused then must choose between a plea bargain, or the risk of a trial in which a jury might convict on one or two felony counts simply on a "where there's smoke there must be fire" theory even if the evidence seems less than compelling.

This is why, in our current system, the vast majority of cases never go to trial, but end in plea bargains. And if being charged with a crime ultimately leads to a plea bargain, then it follows that the real action in the criminal justice system doesn't happen at trial, as it does in most legal TV shows, but way before, at the time when prosecutors decide to bring charges. Because usually, once charges are brought, the defendant will wind up doing time for something.

I don't think this is what they intended

This is what happens when gun laws are made based on what a gun looks like vs what it can do. [Link]

Gun dealers, with the help of machine shops and gunsmiths, are on the cusp of offering what they call NY SAFE-compliant AR-15s and other military-style rifles.

Prototypes for the new rifles have been on display at gun shops from western New York to the Adirondacks in recent weeks. And now a lawyer representing one shop says he has gotten what amounts to an OK from the state, in the form of a letter from a State Police lawyer confirming that AR-15-style guns should be legal as long as they lack the characteristics prohibited by the law.

"It's basically an AR-15 without the features," said James Tresmond, a western New York lawyer representing H&H Firearms, a Lackawanna gun shop that's seeking to sell such a rifle.

"People are champing at the bit" for the modified rifle, said Justin Reickart, who with his wife operates H&H.

He aims to offer an AR-15-style rifle with the pistol grip permanently removed, and without banned accessories such as a folding stock, a flash suppressor or a bayonet lug.

Thanks to modifications by a Texas-based machine shop, the stripped-down rifle has an adapter that connects the spot where the grip would go to the stock, or portion of the rifle that the shooter braces against her shoulder.

A prototype of the rifle looks almost indistinguishable from the totemic AR-15 except for the stock.

"It looks like a paintball gun," Reickart joked.

It retains the semi-automatic capability possessed by any standard AR-15, meaning one can simply pull the trigger for each shot rather than having to work a bolt action or lever each time.

And it uses the same .223 cartridge as its military cousin.

Three kinds of Rights and Atheists

Interesting and not just because I'm agnostic. [Link]

This leads me to the central reason that I think that modern atheists have an incoherent world view. (And, before anyone raises objections, this isn't to say that I think that atheists are bad people, bad citizens, behave less morally than theists, or anything else: it's merely a statement that the ethical construct is incoherent and lacking in rigor.)

The reason for arguing that modern western atheism is incoherent is not that it is irrational to disbelieve in God; I think that one can be entirely sane and rational and disbelieve in God (although I actually think that agnostics have beliefs that are much more consistent with pure rationality than either theists or atheists, but that's a side note).

No, the reason that modern atheists have incoherent views is that they simultaneously

1. assert that there is nothing beyond that which is visible (i.e. they are materialists)
2. they believe in rights, and not merely in a legal or social descriptive way, but in an absolute and prescriptive way.

Let me explain what I mean by point number 2.

The English language muddies many discussions of "rights" because it uses one term to cover three very distinct meanings.

The three meanings are:

1. the "rights" that society acknowledges a person has
2. the "rights" that government acknowledges a person has
3. the "rights" that a person actually has according to non-material abstract principles

I assert that almost everyone in the modern West, including "Brights" / "new atheists" / Ayn Rand followers / etc. acknowledges these three distinct things and acknowledges them as distinct. And it's that final one, the acknowledgement of non-material abstract principles, that puts the contradiction in modern atheism.

Before I go further, though, let's expand a bit on what these three things are and bring up some examples of how all of us treat them as distinct.

Let's start with an easy example:

• location / observer: Jim Crow south
• right: right of blacks to attend school as equals
• social acknowledgement: false
• gov acknowledgement: false
• modern view on abstract right: true

By this I mean that in the pre-Brown v Board of Ed era in Kansas, blacks did not have the right to attend school as equals according to either the social milieu in Kansas or according to the government in Kansas.

…and yet almost every modern atheist would choose to describe this not merely in flat factual terms, but in terms of "injustice".

What is an injustice? It is a violation of justice, which is itself a term with two meanings: the actual black-letter law, and also abstract principles of ethical behavior. Clearly anyone who calls legal racial discrimination in 1950 an injustice can not mean the former, because they have already acknowledged that it was legal – so they mean the latter, that there is some ethical principle that is being violated.

Misbehaving Prosecutors

When you use a metric to determine performance, that metric will be gamed. With prosecutors, that metric is winning. Innocence or guilt become mere trivialities; what matters is the win. [Link]

And in a culture where racking up convictions tends to win prosecutors promotions, elevation to higher office and high-paying gigs with white-shoe law firms, civil liberties activists and advocates for criminal justice reform worry there's no countervailing force to hold overzealous prosecutors to their ethical obligations.

In the end, one of the most powerful positions in public service -- a position that carries with it the authority not only to ruin lives, but in many cases the power to end them -- is one of the positions most shielded from liability and accountability. And the freedom to push ahead free of consequences has created a zealous conviction culture.

Nowhere is the ethos of impunity more apparent than in Louisiana and in Orleans Parish, the site of Thompson's case. The Louisiana Supreme Court, which must give final approval to any disciplinary action taken against a prosecutor in the state, didn't impose its first professional sanction on any prosecutor until 2005. According to Charles Plattsmier, who heads the state's Office of Disciplinary Counsel, only two prosecutors have been disciplined since -- despite dozens of exonerations since the 1990s, a large share of which came in part or entirely due to prosecutorial misconduct.

Since the Supreme Court issued its decision in Connick v. Thompson in March 2011, several defense attorneys in New Orleans have responded by filing complaints against the city's prosecutors. Leading the charge is Sam Dalton, a legal legend in New Orleans who has practiced criminal defense law in the area for 60 years. According to Dalton and others, not only have these recent complaints not been investigated, in some cases they have yet to hear receipt of confirmation months after they were filed. Even the head of the board concedes that significant barriers to accountability persist.

Thompson is certainly aware of that. "These people tried to eliminate me from the face of the earth," Thompson says of his own prosecutors. "Do you get that? They tried to murder me. And goddamnit, there have to be some kind of consequences."

And

Now even a prosecutor who knowingly submits false evidence in a case that results in the wrongful conviction -- or even the execution -- of an innocent person can't be personally sued for damages. The only way a prosecutor can be sued under present law is if she was acting as an investigator in a police role -- duties above and beyond those of a prosecutor -- at the time she violated the defendant's civil rights. But even here, prosecutors enjoy the qualified immunity afforded to police officers: A plaintiff must still show a willful violation of well-established constitutional rights to even get in front of a jury.

The 2009 Supreme Court case Pottawattamie v. McGhee shows how absurd the logic behind prosecutorial immunity can get. Prosecutors were found to have fabricated evidence to help them convict two innocent men, Terry Harrington and Curtis McGhee, who between them spent more than 50 years in prison. Attorneys for the prosecutors, along with the Office of the Solicitor General and several state attorneys general, argued they should be immune from any liability. They said that while the prosecutors may have been acting as police investigators when they fabricated the evidence, the actual injury occurred only when the jury wrongly convicted Harrington and McGhee. It followed that because the prosecutors were acting as prosecutors when the injury occurred, they were still shielded by absolute immunity. Deputy Solicitor General Neal Katyal even argued to the court that there is no "free-standing due process right not to be framed."

During oral arguments in the case, Justice Anthony Kennedy summed up this defenseless than sympathetically: "The more deeply you're involved in the wrong, the more likely you are to be immune." And there was at least some indication during the oral arguments that some justices were moving toward limiting prosecutorial immunity.

But before the court could rule, Pottawattamie County settled with Harrington and McGhee. For now, the question of whether a prosecutor can be held personally liable for knowingly manufacturing evidence to convict an innocent person remains unsettled.

The Zimmerman Verdict: Be Careful What You Wish For

Good insight from a defense attorney and former Federal prosecutor on the Zimmerman verdict. [Link]

But experience has made me very cautious to conclude that a not guilty verdict is a result of anything but failure of evidence and the presence of doubt. That's why I — like many lawyers who actually practice criminal law — have not concluded that the acquittal of George Zimmerman represents, in and of itself, race-based injustice.

First, experience has taught me not to trust the news media, and therefore not to form confident opinions about the merits of a case based on what the media chooses to emphasize. The media in the Zimmerman case has been deceitful and sloppy. This is not a surprise. The media is good at advancing its chosen themes and bad at reporting accurately about complex legal proceedings like a criminal trial. The media rushes to judgment when a suspect or defendant "looks guilty," ignores or minimizes police and prosecutorial misconduct in order to preserve its relationships with sources (or does so because it has, despite its reputation for liberal bias, uncritically accepted law enforcement narratives and is content to act like the state's cheerleaders), obsesses over tawdry minutiae to the exclusion of substance, and remains lazy and/or defiantly ignorant andwrong about law. I have prosecuted and defended numerous cases that were covered by the media; I have never seen them get all of the details right, even on relatively straightforward matters.

Second, I've been a criminal defense attorney for 13 years now, and it's changed the way I view trials. They aren't (or at least should not be) a vehicle for society's judgment. That's the view the prosecution often hopes to promote, in order to convince jurors to vote their fears and anxieties about crime, which they are told relentlessly (and falsely) is out of control. No: a trial is an attempt by the state to exercise power over an individual, limited by the requirements of the Constitution and the rules of evidence and criminal procedure. The question at hand is can the government offer admissible evidence proving this person guilty of this crime beyond a reasonable doubt to a panel of jurors. When judges and jurors take their job seriously, it acts as an effective bulwark between the incredible power of the state and the freedom of the individual.

Third, the more I observe American culture, the less enthused I am at the notion that a jury's verdict in a criminal case is wrong if it doesn't reflect the collective beliefs of our society. Too often the collective belief of society is that people accused of something probably did it. Too often the collective belief of society is that a properly functioning justice system is one that produces a conviction. Too often the collective belief of our society is that the state, and law enforcement, are entitled to trust — not trust but verify, but uncritical trust, at least when the government actors wear a badge and carry a gun. Too often the collective belief of our society is that how we feel about a thing is entitled to legal force, even in the face of specific rights and privileges of another citizen.

Can due process produce a result that is, in some sense, unjust? Yes. People can kill and defraud and rape and abuse but leave insufficient evidence of their crimes to prove their guilt beyond a reasonable doubt. The fact that the victim suffered is unjust. The fact that the perpetrator was not punished is unjust. The fact that skin color drives outcomes is unjust. It is unjust that moral wrongs go unredressed: such as, perhaps, the moral wrong that Trayvon Martin would be alive if George Zimmerman didn't think he had a right and duty to confront people of the wrong color in his neighborhood. But there's a central question some people ignore about such injustice: compared to what?

People assail results like the acquittal of George Zimmerman. But critics don't tell us what the alternative should be. Shall guilt or innocence be determined by society's reaction to the vapid summaries of prosecutions on cable news? Clearly not. Should verdicts necessarily reflect social consensus of the time about the crime and the accused? Tell that to theScottsboro boys — theirs did. Should we make it easier to convict people of crimes in order to reduce injustice against the weak? How foolish. The weak already suffer because it is too easy to convict — because we love to pass criminal laws, but hate to pay for an adequate defense. Thanks to "law and order" and the War on Drugs and our puerile willingness to be terrified by politicians and the media, one-sixth of African-American men like Trayvon Martin have been in prison, trending towards one-third. The notion that we can improve their status in America by making it easier to convict people and by undermining the concept of a vigorous defense is criminally stupid. The assertion that an acquittal is wrong and unjust might, in some cases, be true, in the sense that some juries will vote their ignorance or racism or indifference. But the assertion that an acquittal is by its nature unjust because of how we feel about the case serves the state — the state that incarcerates 25% of the world's prisoners.

I didn't watch much of the Zimmerman trial. The parts I watched left me unimpressed with the quality of the prosecution's case. I haven't seen any people who are actual criminal trial practitioners (with the exceptions of ones whose job is to talk to Nancy Grace and her ilk) who thought the case was going well for the prosecution. So my reaction is rather like that of the other criminal defense lawyers I know, like Brian Tannebaum andGideon and Eric Mayer and Scott Greenfield. The verdict didn't surprise me, because based on what I know as a trial lawyer (as opposed to an occasional consumer of CNN), the prosecution wasn't proving its case beyond a reasonable doubt, given the law that applied (as opposed to the law people felt ought to apply). I don't see a basis to conclude that a jury of six women of varying backgrounds voted out of racism, rather than voting because they took the government's burden of proof seriously.

Disabled people with special-needs trusts

A machine for making money for trustees and banks. And what about the person it's for? [Link]

Before her stood lawyer Harvey J. Platt, who was petitioning to become the legal guardian of Mark Christopher Holman, a severely autistic teen who lived in an institution upstate.

Holman had been left an orphan nearly three years earlier after the eccentric millionaire who adopted him passed away. According to doctors, he had the communication skills of a toddler, unable to bathe, dress, or eat by himself.

But before Judge Glen would grant this seemingly perfunctory petition, she had a few questions for Platt.

"How often have you visited Mark Holman?" she asked the lawyer.

"Since his mother died, I have not visited him," said Platt.

"And when you say you haven't visited him since then, how often had you visited him prior to that?"

"I haven't seen him since he was eight or nine," responded the lawyer. "His mother used to bring him to our office with his brother, just to show him my face and so forth and so on, so I haven't seen him probably since 1995 or 1996."

It was around that time that Platt helped Mark's mother, Marie Holman, draft her will and create trusts for him and his older brother. A decade later, when she was dying, Platt promised Marie he'd apply to become Mark's guardian.

"And have you visited the institution which he currently resides in?" Glen asked.

"No, I intend to, but I have not as yet," Platt said, sounding weary. "I don't think even a visit has much significance anyway. He's totally nonverbal—he's never spoken a word. He's potentially aggressive."

This didn't sit well with Judge Glen. When it came to signing away the rights of disabled people to guardians, she was perhaps the most cautious judge in New York. But what came next would floor her.

Platt informed her that Mark's trust had reached nearly $3 million. But while his trustees—Platt and JP Morgan Chase—had collected thousands of dollars in commissions, they hadn't spent a penny on Mark. Medicaid covered his basic care at the institution upstate, but neither the lawyer nor the bank had considered how his mammoth trust might further aid his quality of life.

"Whether there is a cure for his autism or not, the question is: Are there things that could make his life more pleasurable or fulfilling?" Glen asked. "If somebody took him out to the movies once a week, or somebody took him out to lunch, or what he really likes to do is watch football—I don't know. There's always something that could make people happier, and I don't think you could know that without really visiting him and knowing what's going on."

As she spoke, Glen could not have predicted that the case would become a five-year obsession for her. Or that she was about to disrupt a lucrative trade in which some trustees sponge commissions off wealthy disabled people—while doing little to enhance their care.

"They're lazy pieces of shit," says Glen. "It's a business. They collect their commissions, and they think their only responsibility is to invest the money and keep the money safe with no regard for the beneficiary."

Any remorse from the trustee? What do you think?

In her opinion, Glen demanded that JP Morgan and Platt provide an updated accounting of Mark's trust. She also recommended that both have their commissions denied or reduced.

"This is very upsetting to me," Platt says. Now 81, he sounds exhausted when he speaks of Mark's case from his Upper East Side office.

"I never gave her any reason to have such a harsh opinion," he says. "It's not pleasant, especially with the career that I've had, and I'm going to make sure that I continue to do what I'm doing. I will never, ever let anyone criticize me."

Asshole.

Narratives, Justice and Absurdity

All wrapped up into one untidy package. I hadn't heard about this during the trial. [Link]

Nailing a guy on something, anything, is a time-honored American tradition: If you can’t get Al Capone on the Valentine’s Day massacre, get him on his taxes. Americans seem to have a sneaky admiration for this sort of thing, notwithstanding that, as we now know, the government is happy to get lots of other people on their taxes, too. Ever since the president of the United States (a man so cautious and deferential to legal niceties that he can’t tell you whether the Egyptian army removing the elected head of state counts as a military coup until his advisers have finished looking into the matter) breezily declared that if he had a son he’d look like Trayvon, ever since the U.S. Department of so-called Justice dispatched something called its “Community Relations Services” to Florida to help organize anti-Zimmerman rallies at taxpayer expense, ever since the politically savvy governor appointed a “special prosecutor” and the deplorably unsavvy Sanford Police Chief was eased out, the full panoply of state power has been deployed to nail Zimmerman on anything.

How difficult can that be in a country in which an Hispanic Obama voter can be instantly transformed into the poster boy for white racism? Who ya gonna believe — Al Sharpton or your lying eyes? As closing arguments began on Thursday, the prosecutors asked the judge to drop the aggravated-assault charge and instruct the jury on felony murder committed in the course of child abuse. Felony murder is a murder that occurs during a felony, and, according to the prosecution’s theory du jour, the felony George Zimmerman was engaged in that night was “child abuse,” on the grounds that Trayvon Martin, when he began beating up Zimmerman, was 17 years old. This will come as news to most casual observers of the case, who’ve only seen young Trayvon in that beatific photo of him as a twelve-year-old.

In that one pitiful closing moment, the case achieved its sublime reductio ad absurdum: After a year’s labors, after spending a million bucks, after calling a legion of risible witnesses, even after the lead prosecutor dragged in a department-store mannequin and personally straddled it on the floor of the court, the state is back to where it all began — the ancient snapshot of a smiling middle-schooler that so beguiled American news editors, Trayvon Martin apparently being the only teenager in America to have gone entirely unphotographed in the second decade of the 21st century. And, if Trayvon is a child, his malefactor is by logical extension a child abuser. 

Needless to say, even in a nutso jurisdiction like Florida, the crime of “child abuse” was never intended to cover a wizened old granny kicking the ankle of the punk who’s mugging her a week before his 18th birthday. But, if Aggravated Pedophilia is what it takes to fry that puffy white cracker’s butt, so be it. If, for the purposes of American show trials, an Hispanic who voted for a black president can be instantly transformed into a white racist, there’s no reason why he can’t be a child abuser, too. The defense was notified of this novel development, on which the prosecution (judging by the volume of precedents assembled) had been working for weeks or more likely months, at 7:30 that morning. If you know your Magna Carta, you’ll be aware that “no official shall place a man on trial . . . without producing credible witnesses to the truth of it.” But the rights enjoyed by free men in the England of King John in 1215 are harder to come by in the State of Florida eight centuries later. So the prosecutors decided, the day before the case went to the jury, that Zimmerman was engaged in an act of child abuse that had somehow got a bit out of hand: No “credible witnesses” to this charge had been presented in the preceding weeks, but hey, what the hell? Opposing counsel taking the reasonable position that they’d shown up to defend Mr. Zimmerman of murder and had had no idea until that morning that he was also on trial for child abuse, check bouncing, jaywalking, an expired fishing license, or whatever other accusation took the fancy of the State of Florida, asked for time to research the relevant case law. Judge Debra Nelson gave them until 1 p.m. At that point, it was 10:30 a.m. By the time the genius jurist had returned to the bench, she had reconsidered, and decided that “child abuse” would be a reach too far, even for her disgraceful court.

And now, after his acquittal, there will probably be more trials, for federal civil rights violations or wrongful death from the Martin family. They will keep having trials until they get it "right".

Good for the goose, good for the gander

A not entirely unreasonable request. [Link]

The FBI and federal prosecutors are using cellphone records in court to try to prove that the five accused men were all nearby when the robbery attempts and planning occurred, as Moss, who is cooperating with the U.S. Attorney's Office, testified.

The prosecution had told defense attorneys that they were unable to obtain Brown's cellphone records from the period before September 2010 because his carrier, MetroPCS, had not held on to them.

Not so fast, Brown's attorney Marshall Dore Louis argued in court documents filed in Fort Lauderdale days after theNational Security Agency surveillance program was revealed last week.

Edward Snowden, a former employee at an NSA contractor, leaked classified information about the program to a newspaper and alleged it may be an illegal government invasion of privacy.

Louis argued in court Wednesday that the government should be forced to turn over phone location records for two cellphones Brown may have used because it could prove he was not present for one of the attempted bank robberies, on July 26 on Federal Highway in Lighthouse Point.

"The president of the United States has recognized this program has been ongoing since 2006 … to gather the phone numbers [and related information] of everybody including my client in 2010," Louis said.

U.S. District Judge Robin Rosenbaum agreed to give prosecutors an extra week or two to respond fully after they said they needed more time.

"There are security procedures that must be followed," Assistant U.S. Attorney Michael Walleisa said of the special protocols the Department of Justice follows when dealing with information, usually used to identify possible terrorist activity, that may have been secretly obtained under the Foreign Intelligence Surveillance Act.

Prosecutor Michael Gilfarb told the judge that even if the information is available, it may be irrelevant depending on whether Brown carried a phone.

Brown's wife, Vesta Murat Brown, who testified for the prosecution Wednesday morning, told jurors that her husband didn't have a cellphone at the time but sometimes borrowed phones from her, other family members or friends.

Local lawyers said they anticipate there will be many more requests for this kind of information now that defense attorneys know the information may have been preserved.

"If the government is spying on our phone calls, it can't then claim in the same breath that it won't provide those calls when it helps the defense. What's good for the goose, is good for the gander," said David Oscar Markus, a defense lawyer who blogs about the federal justice system in South Florida and first wrote about the unusual request.

Injury by Turtle, Lamppost and Macaw

New Obamacare required injury codes. [Link]

Obamacare will require doctors to use roughly 122,000 new medical diagnostic codes to inform the federal government of injuries sustained by Americans, so says Kentucky Senator Rand Paul.

The new codes, Sen. Paul explained, include classifications for "injuries sustained from a turtle," "walking into a lamppost" and "injuries sustained from burning water skis."

"Your government just wants to take care of you," he added, criticizing the new law's 9,000-plus pages of new regulations. "They don't think you're smart enough to make these decisions."

Physicians currently have about 18,000 medical diagnostic codesto choose from to help them inform insurers of their patients' ailments. However, as Paul (himself a physician) notes, Obamacare includes a mandate for 140,000 of those codes -- and some of them sound downright ridiculous.

"Included among these codes," the senator continued, "will be 312 new codes for injuries from animals; 72 new codes for injuries just from birds; 9 new codes for 'injuries from the macaw."'

"The macaw?" he asked. "I've asked physicians all over the country, 'Have you ever seen an injury from a macaw?"'

He continued, adding that he had found "two new injury codes under Obamacare for 'injuries sustained from a turtle."'

"Now, you might say, 'Well, turtles are dangerous' -- but why do you have to have two codes?" he asked.  "Your doctor has to inform the government whether you've been struck by a turtle or bitten by a turtle."

He added:  "There is a new code for ... walking into a lamppost. There's also a code for 'walking into a lamppost, subsequent encounter.'"

"I guess that's if you don't learn," he added. "[T]here is [also] a code ... for 'injuries sustained from burning water skis."'

The Central Park Five

A whole lot of things were missed to wrongly convict five men of brutally raping a woman. [Link]

If ever there was a cautionary tale about why our system presumes innocence, this was it. Yet as Herbert has reflected, in 1990 New Yorkers, including himself, “wanted them to be guilty. And when a desire is strong enough it can overwhelm such flimsy stuff as facts and truth. Reality is a funny thing. It is what we say it is.” Alas, that’s not the definition of reality: it’s the definition of a lie, imposed violently, carelessly, with the full power of the state. So what is the takeaway from the ruined lives of five young men?

First, in direct response to the case, Donald Trump mounted a successful campaign to reinstate the death penalty in New York. But the only thing that could have made this miscarriage of justice worse is if the defendants had been executed with the dispatch Trump howled for. We must rethink myths about the infallible catharsis of the death penalty.

Second, the convictions resulted from a corrupt process. In a clear breach of ethics, the prosecution directed the police investigation from the moment Meili was found, even questioning the defendants before they were charged and in the absence of counsel. The police, too, broke more rules on collecting evidence and questioning suspects than I can list here: but, most unusual, they also testified to much of it—it’s right there in the court record.

Worst of all, the defense attorneys were beyond dismal. Only one was a public defender with real criminal experience. Like many unfamiliar with the criminal justice marketplace, the defendants mistakenly believed that a private attorney is better than a (generally more practiced) public defender. At one point in the film, Yusef Salaam recalls his alarm when he saw Robert Burns, his lawyer, sleeping through crucial testimony. Indeed, Burns fell asleep nearly every day. He slept in full view of the judge and the press. He slept so hard, he once woke up and objected to himself. I fault the judge in this: no responsible officer of the court should have allowed Burns to continue. Competency of counsel is a basic constitutional right. At a moment when law, lawyers and even law schools are under political assault, we ignore their role in a democratic system at our collective peril.

Third, why is it still so hard to make this case the focus of serious public reflection? Given that it was one of the best-covered criminal trials in our history, the 2002 exoneration slipped by with relatively little notice. There is also a great deal of hand-wringing about why “no one” saw the flaws in the case when it was prosecuted. This ignores the fact that the courtroom was visited daily by throngs of people who did see those flaws—and proclaimed them loudly: family, friends, neighbors, residents of Harlem. But they were poor and black and relentlessly mocked in the media as deluded apologists. There were also small cadres of activists who marched in the streets for the defendants, most visibly Al Sharpton. But sadly, a number of them, including Sharpton, squandered that spotlight by blaming the jogger’s boyfriend, for which there was no evidence.

ACLU Launches Nationwide Police Militarization Investigation

This has been needed for a while now. The militarization of police has widened the gap between us and them. [Link]

The American Civil Liberties Union (ACLU) has launched a nationwide campaign to assess police militarization in the United States. Starting Wednesday, ACLU affiliates in 23 states are sending open records requests to hundreds of state and local police agencies requesting information about their SWAT teams, such as how often and for what reasons they're deployed, what types of weapons they use, how often citizens are injured during SWAT raids, and how they're funded. More affiliates may join the effort in the coming weeks.

Additionally, the affiliates will ask for information about drones, GPS tracking devices, how much military equipment the police agencies have obtained through programs run through the Pentagon and the Department of Homeland Security, and how often and for what purpose state National Guards are participating in enforcement of drug laws.

"We've known for a while now that American neighborhoods are increasingly being policed by cops armed with the weapons and tactics of war," said Kara Dansky, senior counsel at the ACLU's Center for Justice, which is coordinating the investigation. "The aim of this investigation is to find out just how pervasive this is, and to what extent federal funding is incentivizing this trend."

The militarization of America's police forces has been going on for about a generation now. Former Los Angeles Police Chief Daryl Gates first conceived the idea of the SWAT team in the late 1960s, in response to the Watts riots and a few mass shooting incidents for which he thought the police were unprepared. Gates wanted an elite team of specialized cops similar to groups like the Army Rangers or Navy SEALs that could respond to riots, barricades, shootouts, or hostage-takings with more skill and precision than everyday patrol officers.

The concept caught on, particularly after a couple of high-profile, televised confrontations between Gates' SWAT team and a Black Panther holdout in 1969, and then with the Symbionese Liberation Army in 1973. Given the rioting, protests, and general social unrest of the time, Gates' idea quickly grew popular in law enforcement circles, particularly in cities worried about rioting and domestic terrorism.

From Gates' lone team in LA, according to a New York Times investigation, the number of SWAT teams in the U.S. grew to 500 by 1975. By 1982, nearly 60 percent of American cities with 50,000 or more people had a SWAT team.

Throughout those early years, SWAT teams were generally used as Gates had intended. They deployed when there was a suspect, gunman or escaped fugitive who posed an immediate threat to the public, using force to defuse an already violent situation.

By 1995, however, nearly 90 percent of cities with 50,000 or more people had a SWAT team -- and many had several, according to Peter Kraska, a criminologist at Eastern Kentucky University, who in the late 1990s conducted two highly publicized surveys of police departments across the country, and a follow-up survey several years later. Even in smaller towns -- municipalities with 25,000 to 50,000 people -- Kraska found that the number of SWAT teams increased by more than 300 percent between 1984 and 1995. By 2000, 75 percent of those towns also had their own SWAT team.

Kraska estimates that total number of SWAT raids in America jumped from just a few hundred per year in the 1970s, to a few thousand by the early 1980s, to around 50,000 by the mid-2000s.

The vast majority of those raids are to serve warrants on people suspected of nonviolent drug crimes. Police forces were no longer reserving SWAT teams and paramilitary tactics for events that presented an immediate threat to the public. They were now using them mostly as an investigative tool in drug cases, creating violent confrontations with people suspected of nonviolent, consensual crimes.

When all you have is a hammer, every problem looks like a nail. In this case, the shinyness of SWAT teams makes every policing problem look like a job for SWAT.

When avoiding the question answers it

Can the President order the killing of a US citizen on US soil without a trial? The Attorney General answers. [Link]

Like many lawyers might, he used three paragraphs rather than just the one word, but that's what he said.

For a while now the administration has been refusing to answer this question one way or the other, which anyone with half a brain knew almost certainly meant "yes." But in a letter dated March 4, the Attorney General finally responded to Senator Rand Paul's question whether "the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial." Sen. Paul actually asked John Brennan that question, but Brennan couldn't or wouldn't answer it during the hearings on whether he should be the next head of the CIA. (That also meant "yes.") Now Eric Holder has answered it for him.

Here's his letter, which is not that long and which you should read in full if you don't hate Freedom:

Dear Senator Paul: 

On February 20, 2013, you wrote to John Brennan requesting additional information concerning the Adminìstration’s views about whether “the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial."

Here comes the answer! Ooh! I'm having a Constitutional Moment!

As members of this Administration have previously indicated, the U.S. government has not carried out drone strikes in the United States and has no intention of doing so.

Uh, let me just interrupt again here to point out that this is not a "no." And that's not good. Oh, well, go on:

As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts. 

The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront. It is possible, l suppose, to ìmagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States. For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.

Were such an emergency to arise, l would examine the particular facts and circumstances before advising the President on the scope of his authority.

                            Sincerely,

                            Eric H. Holder, Jr.
                            Attorney General

Well, the word "no" does appear in that letter, but only as part of the phrases "no intention of doing so," "we hope no President will," and "no choice," none of which are really what I was looking for there. In fact, they are the opposite of "no."

Just to review, the Attorney General just said yes, the President does have "the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial." That's funny, because I'm looking at some amendments here (I'm thinking IV, V, VI, and VIII) that say he doesn't.

One more step down a road that we will have great difficulty leaving.

Contempt

Contempt of Congress. [Link]

Bait-and-switch? Or breath-taking chutzpah? Either way, Eric Holder is in big trouble.

The embattled attorney general destroyed what little is left of his credibility yesterday afternoon when he failed to turn over 1,300 subpoenaed and unredacted documents in the Fast and Furious gunrunning scandal to House investigators led by Rep. Darrell Issa (R-Calif.).

How did the Justice Department come to OK an operation that handed massive firepower to Mexico’s drug lords, with no hope of tracing the guns and without a word to the Mexican government? Still no good answers, some 18 months after one of those guns was found at the site of the murder of a US Border Patrol agent, while countless others have been used to kill innocent Mexicans.

Instead, in a 20-minute meeting that Holder himself had requested to stave off today’s planned contempt citation vote in Issa’s committee, he merely offered to “brief” Issa on their contents.Nor has Justice handed over more than a token number of the duly subpoenaed documents that might help explain the disaster.

Holder’s insulting, 11th-hour offer came after he’d already missed a morning deadline to turn over the documents — a small percentage of the total number that Congress has demanded as it tries to get to the bottom of the scandal.

Issa surely feels like Charlie Brown charging the football, with Holder as Lucy. For over a year, he’s been trying to pin down the slippery AG, issuing one “last chance” after another, dragging Holder in front of the House Committee on Oversight and Government Reform (on top of Senate appearances) and firing off angry letter after angry letter.

Each time, Holder has scampered off, meeting Issa’s legitimate demands with contempt — for the congressman, the Congress itself and the rule of law.

He tried it again yesterday after his offer was rebuffed, calling Issa’s demands “political gamesmanship” and cracking, “The ball’s in their court.”

Um . . . no, Mr. Attorney General. The ball’s in your court — and has been ever since Justice took the extraordinary step of formally “withdrawing” a Feb. 4, 2011 letter from assistant AG Ron Weich — who announced last week that he’s leaving Justice to become dean of the University of Baltimore law school.

Weich is just the latest F&F figure to jump ship, after ex-US Attorney for Arizona Dennis Burke and former acting head of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Ken Melson.

Weich’s letter definitively denied allegations that the ATF, which supervised the F&F operation, “knowingly allowed the sale of assault weapons” to straw buyers acting on behalf of Mexican drug cartels.

Oops. In December, Holder told Congress that Weich’s letter was now inoperable, then promptly clammed up again, making it clear he has something — something big — to hide from Congress and the American people.

Which is why — unless he produces the documents before 10 a.m. this morning — Holder is looking at a House committee vote on contempt of Congress charges; once the full House goes along, he’ll be only the 11th official to be so cited since 1975.

Doubling Down on Dumb

Streisand Effect in action. [Link]

Inman's discussion of Charles Carreon was self-evidently on its face classic nominative fair use, because it named him to shame him and not to make commercial use of his name. Similarly, I can say that Charles Carreon remains a petulant, amoral, censorious douchebag without violating his trademark because that's nominative, not commercial.

Ken's post is (as always) full of great analysis, and he recommends that if you want to help fight Mr Carreon's douchebaggery that you donate to the Oatmeal's charity fundraiser (currently standing at $178K and rising) and tell your friends (he also asks that you not send angry emails or calls to Mr Carreon).

The Oatmeal v. FunnyJunk, Part IV: Charles Carreon Sues Everybody

The Kobe Beef Lie

More like faux-be beef. [Link]

Think you’ve tasted the famous Japanese Kobe beef?

Think again.

Of course, there are a small number of you out there who have tried it – I did, in Tokyo, and it is delicious. If you ever go to Japan I heartily recommend you splurge, because while it is expensive, it is unique, and you cannot get it in the United States. Not as steaks, not as burgers, certainly not as the ubiquitous “Kobe sliders” at your trendy neighborhood “bistro.”

That’s right. You heard me. I did not misspeak. I am not confused like most of the American food media.

I will state this as clearly as possible:

You cannot buy Japanese Kobe beef in this country. Not in stores, not by mail, and certainly not in restaurants. No matter how much you have spent, how fancy a steakhouse you went to, or which of the many celebrity chefs who regularly feature “Kobe beef” on their menus you believed, you were duped. I’m really sorry to have to be the one telling you this, but no matter how much you would like to believe you have tasted it, if it wasn’t in Asia you almost certainly have never had Japan’s famous Kobe beef.

Pendulum tipping too far

Due process denied those accused of a crime. [Link]

As Senate Republicans resist renewing the 1994 Violence Against Women Act (VAWA), raising questions about immigration fraud and Indian tribal courts, and Democrats indignantly declare their support of it, civil libertarians should take a hard look at some of the Act's deceptively innocuous provisions. Section 304, which governs the treatment of sexual violence charges on college and university campuses, requires that cases involving allegations of violence or stalking provide for "prompt and equitable investigation and resolution."

What's worrisome about this language? Will Creeley of the Foundation for Individual Rights in Education (FIRE) points out that "prompt and equitable" is a term of art under federal anti-discrimination law. It's construed by the Department of Education's Office for Civil Rights to require a low standard of proof ("preponderance of the evidence") in sexual misconduct cases.

This standard was explicitly mandated in an earlier version of the VAWA reauthorization bill, and it was adopted by the Department of Education in a controversial April 2011 directive. It is practically a presumption of guilt. As former DOE official Hans Bader has explained, it means that "if school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined." And, as I noted here, it means that the students may be suspended -- or expelled -- and exposed to civil and criminal liability on the basis of an inquiry that affords them little due process.

Moreover, if an accused student is not found guilty, even under this very low standard of proof, his or her accuser may be afforded a right to appeal (under section 304) exposing the accused to double jeopardy. Of course, campus disciplinary proceedings are not formal criminal trials governed by the 5th and 6th Amendments. But you'd have to regard the protection against double jeopardy as a mere constitutional technicality to believe that schools should dispense with it. Or you'd have to assume that, as a general rule, fairness requires convictions and provides multiple opportunities to obtain them.

These low standards of proof, together with the appeals provisions, reflect the tendency of victim advocates, including Obama Administration officials, to err on the side of presuming guilt in sexual misconduct cases. Some have unabashed contempt for the rights of the accused: Boston attorney Wendy Murphy writes disdainfully of "lawyers for men accused of rape (who) injected themselves into college disciplinary proceedings demanding 'due process' and arguing that accused students have a constitutional liberty interest at stake." The accused have no constitutional claim to due process, she writes approvingly, but "student victims of sexual assault" do, "because sexual assault is a form of gender discrimination."

Perhaps. But if violence against women is a form of gender discrimination, so is the systematic denial of due process to "men accused of rape." It is also a prescription for false convictions. 

Consider the case of University of North Dakota student Caleb Warner, suspended for three years and banned from campus after being convicted of sexual assault under the "preponderance of evidence" standard favored by the administration and arguably required under VAWA. Reviewing the same evidence, FIRE reports, North Dakota law enforcement concluded that the accuser was lying and charged her with with filing a false report (issuing a warrant for her arrest), but the university exonerated Warner only after a spate of bad publicity, including this Wall Street Journalop ed.