Not A Legal Pun

Professor Mello

2008-11-26T14:54:00.000-08:00

Law professor Michael Mello, expert on death penalty, dies

November 25, 2008

By Louis Porter Vermont Press Bureau

MONTPELIER — Michael Mello, a well-known professor at Vermont Law School, died at his home during the weekend. Mello was a national expert on legal issues surrounding the death penalty and had represented inmates on death row.

Mello was also involved in legal and court matters in Vermont. He testified before the Vermont Advisory Committee to the U.S. Commission on Civil Rights this past summer.

Mello also thought about and commented on decisions — particularly those decisions involving the Vermont Constitution or the U.S. Constitution — made by Vermont and U.S. courts.

"He was my colleague for 20 years," Professor Joan Vogel said. "It hasn't really sunk in to me that he isn't here anymore."

It was Mello's commitment to advocating for fair treatment of those accused of crimes, especially his death penalty work, that she remembers about him, she added.

"He was someone who cared deeply about the criminal justice system and how badly it works most of the time," Vogel said. "Sometimes these clients were not upstanding folks. That was really not the point. The point was whether they are guilty of what they were accused of doing.

"He certainly worked tirelessly to try and convince people how often mistakes were made in this system," she said. "He had enormous courage to do that."

Mello's humor and his dedication to what he was doing and its serious impact on people's lives made him a good teacher and lawyer, Vogel added.

"He had a wonderful sense of irony and humor and to do the kind of work he did you had to have that," Vogel added.

"Michael Mello is well known as a prolific writer on the death penalty and criminal law matters, but I will remember him especially for his mentoring friendship for students and his willingness to contribute in myriad ways to the life of Vermont Law School outside the classroom," Jeff Shields, the Dean of the law school, said in a statement.

Mello, who lived in White River Junction, died Sunday following a brief illness, according to the law school. The cause of death was not immediately known.

Mello, 51, was also an author of several books, including "The Wrong Man" about the two decades he spent preventing the execution of Joe Spaziano, a case which, according to the summary of the book, cost Mello any hope of practicing in Florida again.

"Most Americans would be horrified at how courts and governors handle death-penalty cases, and this book is more than worth its price for its account of that process," the Washington Post Book World said of that book.

Mello also carried on a correspondence with Unabomber Theodore Kaczynski after Kaczynski was in prison.

"To some extent at least, I know him," Mello said of Kaczynski in 1999. Mello also wrote a book about Kaczynski's case.

In Vermont, Mello was also known for commenting on complex and controversial criminal cases, including the death penalty case of Donald Fell and the Vermont Supreme Court decision to overturn the felony domestic assault case of Michael Brillon because his trial took too long.

The decision by the justices was controversial, but Mello said it was not without basis.

"We do poorhouse justice here in Vermont. That has been a lurking crisis here really before Howard Dean was governor, but especially during his tenure," Mello said of the Brillon case.

Mello is survived by his wife, Deanna, who is a Vermont Law School alumna.

Contact Louis Porter at louis.porter@rutlandherald.com.

I'm Voting Republican

2008-06-11T12:22:00.001-07:00

Dedicated to all the petty idiots out there who insist on voting for McCain because Hillary lost. The next 3,000 dead soldiers are on you.

Bob Dylan Endorses Obama

2008-06-08T10:11:00.000-07:00

From The Times Online (London), by Alan Jackson and David Byers:

Bob Dylan says Barack Obama is 'changin' America:

Read the exclusive Times interview

His 1964 track 'The Times They are a-Changin' became the anthem for his generation, symbolising the era-defining social struggle against the establishment.
Now Bob Dylan - who could justifiably claim to be the architect of Barack Obama's 'change' catchphrase - has backed the Illinois senator to do for modern America what the generation before did in the 1960s.

In an exclusive interview with The Times, published today, Dylan gives a ringing endorsement to Mr Obama, the first ever black presidential candidate, claiming he is "redefining the nature of politics from the ground up".

Dylan, 67, made the comments when being interviewed in Denmark, where he stopped over in a hotel during a tour of Scandinavia.

Asked about his views on American politics, he said: "Well, you know right now America is in a state of upheaval. Poverty is demoralising. You can't expect people to have the virtue of purity when they are poor. But we've got this guy out there now who is redefining the nature of politics from the ground up...Barack Obama. He's redefining what a politician is, so we'll have to see how things play out. Am I hopeful? Yes, I'm hopeful that things might change. Some things are going to have to."

He added: “You should always take the best from the past, leave the worst back there and go forward into the future."

Dylan's endorsement contains much symbolic significance. The legendary singer-songwriter, who has an art exhibition opening in London next week, became a focal point for young people worldwide when he released the album 'The times they are a-changin'," including the famous song of that name, in 1964.

The track, which he wrote as the social liberation of the '60s astonished politicians and parents, included lines urging people to accept and embrace what was happening around them.
Memorable lines included: "Come senators, congressmen, please heed the call. Don't stand in the doorway, don't block up the hall," and: "Come mothers and fathers throughout the land, and don't criticise what you can't understand. Your sons and your daughters are beyond your command. Your old road is rapidly agin'."

Can Obama Win 40% of Evangelicals?

2008-06-08T09:59:00.000-07:00

An interview of a top evangelical lobbysit by Dan Gilgoff, from Time:

With clients like Focus on the Family, Franklin Graham, and Campus Crusade for Christ, Mark DeMoss may be the most prominent public relations executive in the evangelical world. A former chief of staff to Jerry Falwell, DeMoss became then-presidential candidate Mitt Romney’s chief liaison to evangelical leaders. God-o-Meter caught up with him this week to ask how John McCain—and Barack Obama—are doing among evangelical opinion shapers and voters.

How intensely has the McCain campaign lobbied for your support?

I’ve gotten one phone call from a campaign staffer, [director of messaging] Brett O’Donnell. Brett called a month ago and asked if I was opened to getting involved. I told him that I was involved with Mitt Romney not just because I liked the campaign, but because I felt like he was a special candidate at a special time. I told him that I’m a conservative a first and a Republican second. I was inclined to vote for Senator McCain but not to get involved beyond that.

So you’re supporting McCain but aren’t exactly enthusiastic about him?

It would be accurate to say I am not as enthusiastic about Senator McCain as I was about Mitt Romney, but I think anybody would say that about their first candidate of choice.

How is John McCain doing among evangelicals, a crucial Republican constituency?

The evangelical world or the conservative religious world is not his natural habitat, so he doesn’t strike me as being all that comfortable with it. I think that’s evidenced by the strong comments made in 2000 about Falwell and Robertson.

But he gave the 2006 commencement address at Liberty University, your alma mater.

For all of the attention devoted to his 2006 commencement address at Liberty, which I attended and where I met the Senator, I would not suggest that that was reflective of building stronger ties or relationships or making inroads in the evangelical community. For one thing, his commencement address made no mention of faith or a lot of the issues that religious conservatives care an awful lot about.

Now, he was in difficult spot with that address, because had he given a speech about values and his faith, he would have been accused of values and pandering. Instead, he gives a speech largely about foreign policy and he was criticized for being out of touch with his audience. So he was probably in a no-win situation in that commencement address.

Do you think that McCain hurt himself among evangelicals by publicly rejecting pastors John Hagee and Rod Parsley, or has that been overstated?

The Senator hurt himself by rejecting the endorsements of John Hagee and Rod Parsley in Texas and Ohio, and it was mistake to do that. Here were two conservative religious pastors who were probably out on a limb supporting him. And he responds to criticism over comments they made and rejects them. That was a slap in the face to evangelicals who are already somewhat suspect of Senator McCain. I would have some theological differences with both pastor Hagee and Parsley, but in terms of values, we would be political soul mates. This makes it harder for McCain to make the case to evangelicals and other religious conservatives that we understand you.

You represent some of the nation’s most powerful evangelicals. What do those leaders say about McCain?

This is one guy’s perspective, but I am surprised by how little I’ve seen or read in conservative circles about McCain since February. I don’t think I’ve gotten one email or letter or phone call from anybody in America in the last four months saying anything about this election or urging that we unite behind John McCain and put aside whatever differences we have. Back in the fall and winter, you’d get several things a day from conservatives saying, “The future of the Supreme Court is at stake. We have to stop Hillary Clinton. Get behind so and so—or don’t’ go with this guy.” It’s just very quiet. It could meant there’s a real sense of apathy or it could mean they’re’ waiting for the general election to begin. But it’s a surprise, given the way email networks work now.

Barack Obama is trying hard to win evangelical voters. Does that effort stand a chance?

If one third of white evangelicals voted for Bill Clinton the second time, at the height of Monica Lewinsky mess—that’s a statistic I didn’t believe at first but I double and triple checked it—I would not be surprised if that many or more voted for Barack Obama in this election. You’re seeing some movement among evangelicals as the term [evangelical] has become more pejorative. There’s a reaction among some evangelicals to swing out to the left in an effort to prove that evangelicals are really not that right wing. There’s some concern that maybe Republicans haven’t done that well. And there’s this fascination with Barack Obama. So I will not be surprised if he gets one third of the evangelical vote. I wouldn’t be surprised if it was 40-percent.

How much of that is because of the testimonial way he discusses his own faith?

Out of curiosity, I’ve been reading up on Obama’s personal faith these last couple weeks. I read all of Dreams From My Father and I got Audacity of Hope and so far I only read the chapter on faith. The chapter on faith in Audacity of Hope actually talked relatively little about his personal faith or his relationship with Christ. I underlined even the remotest references and there might be six or eight sentences at most. For example, he talks about joining Trinity and being baptized there. But for evangelicals, there’s a difference between being baptized—it’s not eh same as acknowledging a decision to accept Christ. He says in other places that he accepted Christ as his savior and I accept that, but if you read [Obama’s books] You’re not going to find the kind of personal testimony in the kind of terms that Mike Huckabee talked about.

I’m not saying he has to be a born again or he shouldn’t be president. But he’s going to appeal to a lot of [evangelicals] and raise questions in others. I learned recently of a young woman form a prominent evangelical family who’d been supporting a Republican candidate in the primaries and she stood for four hours in a stadium in a downpour waiting for Obama to speak and signed up to work for him afterward. That’s all it took. It speaks to what we’re hearing about him being a mesmerizing communicator. There will be others who ask tough questions [about Obama] and say “I’m not so sure.” But one of the things that the media had gotten really wrong in recent years that evangelicals are absolutely Republican. Polls don’t show that to be true.

My favorite parts of Hillary's concession speech...

2008-06-07T18:14:00.000-07:00

Although we weren’t able to shatter that highest, hardest glass ceiling this time, thanks to you, it’s got about 18 million cracks in it. And the light is shining through like never before, filling us all with the hope and the sure knowledge that the path will be a little easier next time. That has always been the history of progress in America.

Think of the suffragists who gathered at Seneca Falls in 1848 and those who kept fighting until women could cast their votes. Think of the abolitionists who struggled and died to see the end of slavery. Think of the civil rights heroes and foot-soldiers who marched, protested and risked their lives to bring about the end to segregation and Jim Crow.
Because of them, I grew up taking for granted that women could vote. Because of them, my daughter grew up taking for granted that children of all colors could go to school together.

Because of them, Barack Obama and I could wage a hard fought campaign for the Democratic nomination. Because of them, and because of you, children today will grow up taking for granted that an African American or a woman can yes, become President of the United States.
When that day arrives and a woman takes the oath of office as our President, we will all stand taller, proud of the values of our nation, proud that every little girl can dream and that her dreams can come true in America. And all of you will know that because of your passion and hard work you helped pave the way for that day.
So I want to say to my supporters, when you hear people saying – or think to yourself – "if only" or "what if," I say, "please don’t go there." Every moment wasted looking back keeps us from moving forward.

Life is too short, time is too precious, and the stakes are too high to dwell on what might have been. We have to work together for what still can be. And that is why I will work my heart out to make sure that Senator Obama is our next President and I hope and pray that all of you will join me in that effort.

Congressman Robert Wexler at DNC RBC Meeting

2008-06-04T18:07:00.001-07:00

I recently discovered my local Congressman: Robert Wexler of the 19th Florida district. He made a huge impression when he testified before the Democratic Natinal Committee's Rules and Bylaws Committee meeting, representing Barack Obama. His testimony was courageous, passionate, fair and articulate. He explained the series of events leading us to the committee meeting, noted the agreement of the entire Florida Congressional delegation's agreement, including Obama and Clinton supporters, and thene announced Obama's extraordinary concession under the circumstances. The video encapsulates this extremely courageous testimony in the face of jeering Clinton supporters at an epic moment in American history.

Two days later, I found out that Congressman Wexler was having a town meeting in Boca. I decided to attend. What I saw only reinforced my already high opinion of him. His constituents are mostly Clinton supporters. He explained to them his actions in support of Obama, again in the face of hostility. I wrote a dailykos diary about the event, which made a big splash, culminating in a thank you from the Wexler campaign. I made it to the top of the rec list, and stayed there for most of the day. Here's the diary:

http://www.dailykos.com/story/2008/6/2/22182/55786/19/527798

William and Mary President Fired for Free Speech

2008-02-12T09:27:00.000-08:00

I don't really keep up with William and Mary goings-on that much, but I heard the new President was fired and read his letter, and am absolutely apalled at the Board of Governors. I had no idea this Nichols guy was so cool. He really took some stands on free expression and separation of church and state. But, out with the new, in with the old. I guess they'll have another decade with the likes of Timothy Sullivan in control, and Henry Kissinger symbolism. Bummer.

Here's his amazing goodbye letter..

"Dear Members of the William & Mary Community: I was informed by the Rector on Sunday, after our Charter Day celebrations, that my contract will not be renewed in July. Appropriately, serving the College in the wake of such a decision is beyond my imagining. Accordingly, I have advised the Rector, and announce today, effective immediately, my resignation as president of the College of William & Mary. I return to the faculty of the school of law to resume teaching and writing.

I have made four decisions, or sets of decisions, during my tenure that have stirred ample controversy. First, as is widely known, I altered the way a Christian cross was displayed in a public facility, on a public university campus, in a chapel used regularly for secular College events -- both voluntary and mandatory -- in order to help Jewish, Muslim, Hindu, and other religious minorities feel more meaningfully included as members of our broad community. The decision was likely required by any effective notion of separation of church and state. And it was certainly motivated by the desire to extend the College's welcome more generously to all. We are charged, as state actors, to respect and accommodate all religions, and to endorse none. The decision did no more.

Second, I have refused, now on two occasions, to ban from the campus a program funded by our student-fee-based, and student-governed, speaker series. To stop the production because I found it offensive, or unappealing, would have violated both the First Amendment and the traditions of openness and inquiry that sustain great universities. It would have been a knowing, intentional denial of the constitutional rights of our students. It is perhaps worth recalling that my very first act as president of the College was to swear on oath not to do so.

Third, in my early months here, recognizing that we likely had fewer poor, or Pell eligible, students than any public university in America, and that our record was getting worse, I introduced an aggressive Gateway scholarship program for Virginians demonstrating the strongest financial need. Under its terms, resident students from families earning $40,000 a year or less have 100% of their need met, without loans. Gateway has increased our Pell eligible students by 20% in the past two years.

Fourth, from the outset of my presidency, I have made it clear that if the College is to reach its aspirations of leadership, it is essential that it become a more diverse, less homogeneous institution. In the past two and half years we have proceeded, with surprising success, to assure that is so. Our last two entering classes have been, by good measure, the most diverse in the College's history. We have, in the past two and a half years, more than doubled our number of faculty members of color. And we have more effectively integrated the administrative leadership of William & Mary. It is no longer the case, as it was when I arrived, that we could host a leadership retreat inviting the 35 senior administrators of the College and see, around the table, no persons of color.

As the result of these decisions, the last sixteen months have been challenging ones for me and my family. A committed, relentless, frequently untruthful and vicious campaign -- on the internet and in the press -- has been waged against me, my wife and my daughters. It has been joined, occasionally, by members of the Virginia House of Delegates -- including last week's steps by the Privileges and Elections Committee to effectively threaten Board appointees if I were not fired over decisions concerning the Wren Cross and the Sex Workers' Art Show. That campaign has now been rendered successful. And those same voices will no doubt claim victory today.

It is fair to say that, over the course of the past year, I have, more than once, considered either resigning my post or abandoning the positions I have taken on these matters -- which I believe crucial to the College's future. But as I did so, I thought of other persons as well.

I thought of those students, staff, faculty, and alumni, not of the religious majority, who have told me of the power of even small steps, like the decision over display of the Wren Cross, to recognize that they, too, are full members of this inspiring community.

I have thought of those students, faculty, and staff who, in the past three years, have joined us with explicit hopes and assurances that the College could become more effectively opened to those of different races, backgrounds, and economic circumstances -- and I have thought of my own unwillingness to voluntarily abandon their efforts, and their prospects, in mid-stream.

I have thought of faculty and staff members here who have, for decades, believed that the College has, unlike many of its competitors, failed to place the challenge of becoming an effectively diverse institution center stage -- and who, as a result, have been strongly encouraged by the progress of the last two years.

I have thought of the students who define and personify the College's belief in community, in service, in openness, in idealism -- those who make William & Mary a unique repository of the American promise. And I have believed it unworthy, regardless of burden, to break our bonds of partnership.

And I have thought, perhaps most acutely, of my wife and three remarkable daughters. I've believed it vital to understand, with them, that though defeat may at times come, it is crucial not to surrender to the loud and the vitriolic and the angry -- just because they are loud and vitriolic and angry. Recalling the old Methodist hymn that commands us "not to be afraid to defend the weak because of the anger of the strong," nor "afraid to defend the poor because of the anger of the rich." So I have sought not to yield. The Board's decision, of course, changes that.

To my faculty colleagues, who have here created a distinctive culture of engaged, student-centered teaching and research, I will remember your strong and steadfast support until the end of my days.

To those staff members and alumni of this accomplished and heartening community, who have struggled to make the William & Mary of the future worthy of its distinctive past, I regret that I will no longer be part of that uplifting cause. But I have little doubt where the course of history lies.

And, finally, to the life-changing and soul-inspiring students of the College, the largest surprise of my professional life, those who have created in me a surpassing faith not only in an institution, but in a generation, I have not words to touch my affections. My belief in your promise has been the central and defining focus of my presidency. The too-quick ending of our work together is among the most profound and wrenching disappointments in my life. Your support, particularly of the past few weeks and days, will remain the strongest balm I've known. I am confident of the triumphs and contributions the future holds for women and men of such power and commitment.

I add only that, on Sunday, the Board of Visitors offered both my wife and me substantial economic incentives if we would agree "not to characterize [the non-renewal decision] as based on ideological grounds" or make any other statement about my departure without their approval. Some members may have intended this as a gesture of generosity to ease my transition. But the stipulation of censorship made it seem like something else entirely. We, of course, rejected the offer. It would have required that I make statements I believe to be untrue and that I believe most would find non-credible. I've said before that the values of the College are not for sale. Neither are ours." (My emphasis: The Board of Visitors offered him hush money?! Unacceptable.) "

Mine, to be sure, has not been a perfect presidency. I have sometimes moved too swiftly, and perhaps paid insufficient attention to the processes and practices of a strong and complex university. A wiser leader would likely have done otherwise. But I have believed, and attempted to explain, from even before my arrival on the campus, that an emboldened future for the College of William & Mary requires wider horizons, more fully opened doors, a broader membership, and a more engaging clash of perspectives than the sometimes narrowed gauges of the past have allowed. I step down today believing it still.

I have also hoped that this noble College might one day claim not only Thomas Jefferson's pedigree, but his political philosophy as well. It was Jefferson who argued for a "wall of separation between church and state" -- putting all religious sects "on an equal footing." He expressly rejected the claim that speech should be suppressed because "it might influence others to do evil," insisting instead that "we have nothing to fear from the demoralizing reasonings of some if others are left free to demonstrate their errors." And he averred powerfully that "worth and genius" should "be sought from every condition" of society.

The College of William & Mary is a singular place of invention, rigor, commitment, character, and heart. I have been proud that even in a short term we have engaged a marvelous new Chancellor, successfully concluded a hugely-promising capital campaign, secured surprising support for a cutting-edge school of education and other essential physical facilities, seen the most vibrant applicant pools in our history, fostered path-breaking achievements in undergraduate research, more potently internationalized our programs and opportunities, led the nation in an explosion of civic engagement, invigorated the fruitful marriage of athletics and academics, lifted the salaries of our lowest-paid employees, and even hosted a queen. None of this compares, though, to the magic and the inspiration of the people -- young and older -- who Glenn and I have come to know here. You will remain always and forever at the center of our hearts.

Go Tribe. And hark upon the gale.

Gene Nichol"

The Fourth Amendment Gone Wild: Part II - Seizures

2008-02-12T07:02:00.000-08:00

Imagine you're taking a Greyhound bus. You board in Miami, and the first stop is Fort Lauderdale. You're sitting on the bus, minding your own business-- too early for a bathroom break. At that stop, two police officers board the bus. The two officers approach you, and ask for your identification. They have guns in their holsters. They block the only exit from the bus. The bus is filled with passengers gawking at the scene. When you show them your ID, they ask to search your bags. Still, there's no way out. Would you feel free to leave? To stand up and say "excuse me" as you try to slide by the armed cops in the narrow aisle? Would you feel that you had the power to end the interaction? That you could say "no thank you," and that would be that?

This was the factual backdrop leading to the definitive case on Fourth Amendment "seizures": Florida v. Bostick, 501 U.S. 429 (1991). Justice O'Connor wrote the majority opinion, defining "seizure," for purposes of the Fourth Amendment, as any situation where a "reasonable person" would not feel free to "disregard the police and go about her business." Not a bad definition, really. I would tend to agree. Of course, when confronted by officers, there are very few situations where I would feel free to disregard the police, but surely that's what the Court intended. Surely, the Court knew that refusing a breathalyzer is a crime in most states, that refusing to provide identification is a crime, and that refusing any request can be construed as resisting arrest. I suppose I can disregard an officer when cross-examining him in open court (a truly transcendental experience), but that's about it. Given the confrontational nature of most any police encounter, surely the court used the adjective "reasonable" to broadly construe "seizures", thereby ensuring that each such confrontation is supported by a warrant and probable cause, right?

Wrong. The Court held that the interaction described above was consensual, and thus not a "seizure." Apparently, its reasonable to refuse to consent to two armed officers wishing to search your bags on a Greyhound bus. This exact scenario was reaffirmed in U.S. v. Drayton, 536 U.S. 194 (2002). Apparently, its reasonable to refuse to answer an officer's questions in an airport. INS v. Delgado, 466 U.S. 210 (1984). Apparently, its even reasonable to run from the police, inasmuch as there is no "seizure" if you do so. California v. Hodari D., 499 U.S. 621 (1991). But guess what? Your running gives the police reasonable suspicion to seize you. Its "reasonable" to run, just don't get caught. In sum, when you cooperate, the interaction is consensual, even though you don't have a choice, since when you do not cooperate your uncooperativeness gives the police sufficient justification to "search" and "seize" you without consent. Is your head spinning yet?

Perhaps many of us would resist the cops in this situation. I'd imagine we're an assertive bunch when it comes to our rights. But what about those people who aren't liberal rabble-rousers like you and me? What about an immigrant who doesn't speak English? What about an African-American who's been bullied by cops his whole life? What about someone with a criminal record? Would those persons feel free to end the interaction? According to Justice O'Connor they should.I like to think I'm reasonable.

Personally, when dealing with cops, my primary goal is to get everything over with as soon as possible. Apparently, however, I'm way off-base. Henceforth, when dealing with cops, I should pretend I'm a Supreme Court Justice. When looking at a police interaction from that perspective, its easy to see how unreasonable it would be to even have to speak to some pedestrian LEO. Because certainly, a Supreme Court Justice would feel free to indignantly refuse to cooperate with two armed officers when cornered in a Greyhound bus. In fact, I'm sure Justice O'Connor has ridden greyhound busses countless times in the past thirty years. I would imagine Justice Rehnquist was often harassed by the cops as he walked the mean streets surrounding his Annandale, Virginia home. Each of the Justices undoubtedly have impeccable street smarts when it comes to dealing with suspicious, menacing, armed police officers. And thankfully for all of us, they've deigned to share. So the next time an officer confronts me, I'll brush him off with the gentle admonition "please, no autographs." If the cop persists, I'll explain that I make the law, and could easily have him fired. If he continues to harass me, I'll call the Secret Service. Since this would be the reasonable course of action for Bill, Sandy, and the gang, the officers' behavior would not amount to a seizure.

Of course, nothing could be so simple as "reasonableness" in the bizarro-land of the Fourth Amendment. If you'll recall, "reasonable" is the operative word for "searches" as well. An investigative technique is a "search" when it invades a "reasonable" expectation of privacy. In that context, "reasonableness" is actually the product of a peculiar formula involving political preferences, police convenience, the Drug War, and the F.A.A.'s minimum elevation requirements. What could be more reasonable?

So, now you know what has been defined out of the Fourth Amendment: Investigative techniques that do not invade a "reasonable" expectation of privacy, (very few expectations being reasonable, even before the Bush Administration), and police interactions that one might "reasonably" feel free to terminate (apparently, most of them). The Fourth Amendment covers whatever is left. These residual police activities, (i.e. "searches" and "seizures"), must be supported by a warrant and probable cause. Except when they don't have to be. Which is most of the time. But that's another post.

My Super Tuesday Projections

2008-02-04T17:49:00.001-08:00

Let's test my political acumen. Most likely, my stunningly accurate predictions in 06 were a fluke! Here, I'm even more emotionally involved, which undoubtedly colors my predictions and clogs my logic, so I've (somewhat arbitrarily) toned down my predictions. My assumption is that Hillary will outdo the polls in the Northeastern states except for in New York, will eke out wins in California and Missouri, and blow Obama out in Tennessee, Arkansas, and New York. Obama will barely win Delaware, Alabama, and Kansas, blow Hillary out in Georgia and Illinois, and win solidly in most of the caucus states.

As for how this will pan out in terms of delegates, I don't have the patience to do the math. Let's make a rough guess that Hillary is up by about 35 delegates on Wednesday morning.

Illinois: Obama, 62% - 31%

Georgia : Obama, 59% - 34%

Alaska: Obama, 53% - 41%

Idaho: Obama, 52% - 41%

North Dakota: Obama, 52% - 43%

Utah: Obama, 52% - 42%

Kansas: Obama, 50% - 46%

Colorado: Obama, 51% - 45%

Alabama: Obama, 49% - 47%

Delaware: Obama, 47% - 46%

California: Clinton, 47.5% - 47%

Missouri: Clinton, 48% - 46%

Minnesota: Clinton, 48% - 45%

Connecticut: Clinton, 49% - 45%

New Mexico: Clinton, 49% - 44%

Arizona: Clinton, 51% - 42%

New Jersey: Clinton, 51% - 42%

Massachusetts: Clinton, 52% - 42%

Oklahoma: Clinton, 52% - 41%

New York: Clinton, 54% - 40%

Tennessee: Clinton, 56% - 39%

Arkansas: Clinton, 58% - 36%

The Fourth Amendment Gone Wild: Part I

2008-01-28T08:14:00.000-08:00

cross-posted at www.downwithtyranny.com

The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fourth Amendment is at the same time procedurally specific and substantively open-ended. In terms of checks and balances, the Founders were very particular about searches and seizures, due to their immediate experience with the overzealous policies of King George in pursuit of potential tax-evaders. With the warrant procedure, they placed the regulation of searches in the hands of judges or magistrates, creating a fundamental check and a most important separation of powers.

The substance of the Fourth Amendment vindicates the "living tree" metaphor, invoked by non-strict-constructionists as a rationale for giving contemporary meaning and relevance to vague provisions ("due process" being the most inevitable question-begger). With the probable cause requirement, the Founders intentionally began a never-ending conversation about the appropriate balance between the interests in law enforcement and those in privacy.

I'd like to delve into the Fourth Amendment in a series of posts. This body of law is so interesting, relevant to our current "constitutional crisis," and applicable to us all, that every progressive should be familiar with it. The goal is to inspire a good discussion of technology, privacy, and the proper balance between regulating crime and regulating cops (the balance between regulation of individuals and regulation of the state, no less).

Despite its subtleties, interpretation of the Fourth Amendment should be fairly simple: abide by the warrant procedure, and measure probable cause by explicitly balancing law enforcement against privacy, giving due weight to prior practice and modern exigencies. As for "searches" and "seizures," those terms should be pretty self-explanatory.

However, thanks mostly to the Berger and Rehnquist courts, the Fourth Amendment has become a most tortured, nuanced and Orwellian body of constitutional law – a paradoxical universe where a search is not a "search," a seizure is not a "seizure," "probable cause" is riddled with new-found exceptions, and "warrants," (no longer important enough to be capitalized), are all but optional. (notwithstanding our justifiable anger over warrantless wiretapping, "warrantless" is really an exception that has swallowed the rule).

Exhibit A: Searches that are not "searches"

With expanding technologies, the judicial system needed a way to deal with new, nontraditional investigative techniques, such as phone taps and wires. Enter the "reasonable expectation of privacy" standard, first adopted in Katz v. United States, 389 U.S. 347 (1967), where the Court held that FBI agents, who had attached electronic listening devices to the outside of a phone booth, violated the Fourth Amendment rights of their suspect. Hence, the phrase is used by courts to delineate when a … umm… an investigative technique … is a "search" regulated by the Constitution. Initially, this standard seemed a promising way to ensure that technology didn't outpace our constitutional framework. Unfortunately, the standard was hijacked by judicial conservatives (along with the rest of the Constitution), and has become the principal vehicle by which the Court has brought the Fourth Amendment down to size. Even Justice Stevens, an otherwise reliable vote for liberty, has often jumped at the opportunity to narrow the textually-mandated judicial oversight of invasive police practices. (Perhaps this is the rare example of why he still considers himself technically a Republican).

Among others, the Court has found the following expectations of privacy unreasonable: the contents of our trash (just about everything we do is manifest in our trash – its not as if any of that is personal); our privately owned "open fields" (even when we post no-trespassing signs); the scents emanating from our vehicles only detectible by canines (because we should reasonably expect to be subjected to canine sniffs anywhere we go); and anything that could be seen by someone in a plane or helicopter that happens to be flying over our backyards . . . as long as they're at the minimum elevation required by the F.A.A. or other regulations. (?!?)

The only recent opinion where the Court has foregone the urge to shrink the Fourth Amendment was Kyllo v. United States, an opinion shockingly written by Justice Scalia. There, the Court held that the use of heat detecting devices on a person's home amounted to a search. Apparently, there is at least a reasonable expectation of privacy in when "the lady of the house draws her sauna." (Yes Justice Scalia really said that.)

Now, mind you, including a search within the purview of the Fourth Amendment means only that the police are required to have probable cause and, (theoretically), a warrant signed by a magistrate. And probable cause is a very low standard. Here's an example: I call the cops, and leave an anonymous tip that my neighbor has drugs in his red car, and will be driving home in his red car at 5:30pm. I know my neighbor has a red car, and I know he gets home from work at 5:30. I'm otherwise full of it. But the cops don't know that because I'm anonymous. They see my neighbor drive home in his red car at 5:30pm, and they have probable cause to search his car, and the resultant right to handcuff him and place him in the cruiser while they do it. (Don't get any ideas, people!)

So, with probable cause being the obvious textual basis for evolving the Fourth Amendment, and being traditionally easy to establish, what did the Court do? It defined some police activities right out of the Constitution. Remind you of anything the executive branch has done recently? Tactically, modern judicial conservatives and modern political conservatives are the same: rather than honestly, explicitly justifying its actions, both political and judicial conservatives take the slicker, more duplicitous approach of turning the operative terms on their heads, so that anyone not paying close attention hardly notices the change until its way too late. Meanwhile, the same conservatives have the gall to demonize the "activist judges" of the Warren Court, who reasonably concluded that "due process" needed some clarification. Ah well. I suppose there's some comfort in knowing that one thing (probably) hasn't changed: if the redcoats ever break down my door looking for black market tea or gunpowder, they may still require a warrant.

District of Columbia v. Heller

2008-01-02T08:38:00.001-08:00

Abortion. Affirmative action. School prayer. Gun control. All examples of divisive constitutional issues which typically pit hard-line reactionaries against persons with more nuanced viewpoints. The Supreme Court, for better or worse, has played a pivotal role on most of these issues. In so doing, it has unwittingly provoked political reactions, creating a bounty of campaign issues for right-wingers over the years. Ultimately these issues galvanized social conservatives, paving the way for the ascendance of the wingnut movement. The obvious example of the Court's role in this regard is now the country's most endangered precedent: Roe v. Wade.

I'll admit, from a philosophical standpoint there is a legitimate argument that the Warren Court overstepped its bounds in some of its decisions, notwithstanding their sensibility and progressiveness. (In the matter of Roe v. Wade--actually a product of the Burger Court, which decided it by a 7-2 majority that included Earl Warren's Republican successor as chief justice, Warren Burger--many law students leave their constitutional law class shocked and dismayed to discover that the opinion really was one of the most reckless pieces of legal reasoning ever to come down from the Supreme Court, laying out a menu of potential policy justifications completely unhinged to any specific constitutional right.)

But whatever its questionable merits as a matter of constitutional law, the occasional overzealous decision has the authority of precedent and is bolstered over time by the mandate of its consistent application. And whatever its validity as a philosophy, the "judicial conservative" viewpoint is naught but a subterfuge when it's only selectively espoused and applied and its fair-weather proponents are merely cynical, opportunistic politicians.

This intellectual dishonesty is exposed in cases where the conservative judicial philosophies clash with conservative political objectives. Typically in these cases politically "conservative" Supreme Court justices have abandoned their judicial "conservatism."

One of the most telling cases this term will be District of Columbia v. Heller. It pits respect for precedent, and the intent of the constitutional framers (essential aspects of the strict constructionist and originalist judicial philosophies), against the NRA's pipe dream--a vast, unprecedented expansion of the right to bear arms. Moreover, unlike with most divisive constitutional issues, the Court has played no role in expanding or diminishing the scope of the Second Amendment until now. The Roberts Court can't pretend that it's merely "correcting" an "activist" decision from the Warren court.

The issue, as phrased by the Court, is whether D.C.'s handgun ban "violates the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes." Since our Nation's founding, the Second Amendment was understood to encapsule a collective right, a right to bear arms explicitly tied to the maintenance of state militias, and historically bound to the revolutionary sentiment that a people should be allowed to "alter or abolish" their government. However, in 2007, the D.C. Court of Appeals became the first federal appeals court to ever strike down a firearm ban based on the Second Amendment. It was only the second time a court interpreted the right to bear arms as an individual rather than a group right.

The Supreme Court will review the decision, agreeing to review the scope of the Second Amendment for the first time since 1939. In that case, United States v. Miller, the Court held that the Second Amendment protects only the ownership of weapons appropriate for use in an organized militia, and that sawed-off shotguns don't qualify.

The Supreme Court has consistently refused to revisit this issue, but the Roberts Court hasn't gotten its hands on a Second Amendment case until now. What will it do? On the one hand, a federal appeals court has never before ignored the Miller precedent in striking down a gun law. So, hopefully, the Supreme Court merely intends to reinforce the Miller precedent, and admonish the D.C. Court of Appeals to stand down. On the other hand, the Roberts Court has already displayed a breathtaking disrespect for precedent, and for "judicial conservatism." It may very well endorse the D.C. Circuit's interpretation, expanding the Second Amendment for the first time in history and striking down the D.C. handgun ban for good. Because easier access to guns is just what our blighted capital needs.

Will this be another case of conservative judicial activism? Another betrayal of the purportedly "objective" philosophy motivating the likes of Justices Scalia, Thomas, and Roberts--and underlying their criticisms of Warren Court precedents such as Roe? Most likely, the decision will come down to the views of Justice Kennedy, as usual. Perhaps he will overturn the D.C. Circuit, and uphold the handgun ban. Precedent, judicial conservatism, policy rationales, and an international consensus on gun control dictate that he do so.

cross-posted at www.downwithtyranny.com

Funniest Political Commercial EVER

2007-10-06T21:57:00.001-07:00

HAHAHAHAHAHAHAHAHA!!!!! HAHAHAHAHAHAHAHA!!!!!
HAHAHAHAHAHAHAHAHAHAHA!!!!!!!!

Keith Olbermann

2007-09-23T20:59:00.001-07:00

What a hero! I am tired of being mad at Bush. But I'm outraged at the Senate Democrats for voting to condemn the people whose support, strategy, money, and hard work earned them the majority. What a bunch of traitors. At Move-On, we voted to put a new ad in the Times, entitled "Congressional Representation or Ass-Kissing Little Chickenshits" For my money, you can replace the "or" with an equal sign.

mathematical approach to terrorism

2007-08-12T11:34:00.000-07:00

I have railed against Bush's policies from the beginning, and don't want to lend them any credibility by such a dispassionate analysis, but in arguing with my law professor/mentor, who is quite possibly the only neo-con for whom I have any respect, this is what I came up with.

Premises:

1 - terrorism is a method not an ideology
2 - sacrificing civil liberties, privacy, resources, or international standing, or pursuing warfare, or torture, or racial profiling could marginally reduce the (R) risk of terrorism by a factor (X)
But, 3 - terrorism is easy; there are so many manifold, emerging, and cheap methods, that its impossible to eliminate the threat completely.
therefore, 4 - it doesn't take special access, knowledge, resources, but only the will to do it.
5 - the policies in 2 cause blowback, by destablizing the countries attacked, galvanizing persons with a worldview supporting terrorist methods, and making life so manifestly cheap to persons vulnerable to such a worldview, that it increases (P) the number of persons with the will to pursue terrorism by a factor (Y).

factors:

R - risk of terrorism
X - factor by which neo-conservative policies might reduce R
P - people with the will to commit a terrorist act
Y - factor by which neo-conservative policies increase P
L - likelihood of a terrorist attack

formula: L = R x P
question: Is RxP > RxX x PxY.

Of course, I think not. But the only argument the neo-conservatives have left is the empirical statement "there hasn't been another terrorist attack in the U.S. since 9-11," so, empirically I suppose its still an open question.

But even if neo-conservative policies did reduce the risk, its not worth it. That's another blog.

Sheep's Prayer

2007-08-12T11:27:00.000-07:00

God grant me the complacency to ignore the things I can change, the ignorance to judge the things I can't change, and the moral laziness never to learn the difference.

Dedicated to those borderline fascists with the nerve to call themselves Christians.

passage from The Brothers Karamazov

2007-08-09T20:13:00.000-07:00

This passage was amazing. Can't say anything intelligent about it, you just have to read it:

"You see, Alyosha, perhaps it really may happen that if I live to that moment, or rise again to see it, I, too, perhaps, may cry aloud with the rest, looking at the mother embracing the child's torturer, 'Thou art just, O Lord!' but I don't want to cry aloud then. While there is still time, I hasten to protect myself and so I renounce the higher harmony altogether. It's not wort the tears of that one tortured child who beat itself on the breast with its little fist and prayed on its stinking outhouse, with its unexpatiated tears to 'dear, kind God! It's not worth it, because those tears are unatoned for. They may be atoned for, or there can be no harmony. But how? How are you going to atone for them? Is it possible? By their being avenged? But what do I care for avenging them? What do I care for a hell for oppressors? What good can hell do, since those children have already been tortured? And what becomes of harmony, if there is hell? I want to forgive. I want to embrace, I don't want more suffering. And if the sufferings of children go to swell the sum of sufferings which was necessary to pay for truth, then I protest that the truth is not worth such a price. ... I don't want harmony. From love for humanity I don't want it. I would rather be left with the unavenged suffering, I would rather remain with my unavenged suffering and unsatisfied indignation, even if I were wrong. Besides, too high high a price is asked for harmony; its beyond our means to pay so much to enter on it. And so I hasten to give back my entrance ticket, and if I am an honest man I am bound to give it back as soon as possible. And that I am doing. Its not God that I don't accept, Alyosha, only I most respectfully return Him the ticket." - Ivan Karamazov, Dostoevsky

"T"

2007-07-17T13:28:00.000-07:00

Some things never change. Over time and geography, in every high school certain well-defined cliques and stereotypes endure. One stereotype is the "band geek." He' shy and insecure. He's not very athletic; doesn't have too many friends; doesn't have the hot girlfriend. And lets face it - sometimes he's just downright weird. The band geek is a lost, lonely soul - especially in a small town like Altavista.

Enter Mr. Temples.

I remember the first piece of music he handed us. We were still working on the B-flat scale - some of us had mastered it, and others hadn't. And we'd never played anything together as a band. It was called "Lone Star Ranger." It was a boring piece, designed for a beginner band. As I would come to find out, often we trombones have the most boring part - like, 24 whole notes in a row, all of them middle-F. Okay, so this one wasn't quite that boring, and we were new, so it took us a couple of weeks to get down the mechanics. Then one day T came in with a tape. He said, "Now I want you to put your horns down, close your eyes ... and listen to the story the music is telling." He put it so simply. But it had such an impact.

"That's silly," I thought. "What story? There aren't any words." But I gave it a good faith effort. I got as far as "well ... its kind of fast-paced, so I guess the ranger is probably on a horse." Beyond that, I couldn't elaborate much more. At the end of the exercise, we wrote down our stories and turned them in. Then, T told us his story. Of course, he painted an elaborate, evocative, passionate picture. I left class rather frustrated. "That's not fair. How was I supposed to know that that was the story."

But then, T was always the best conversationalist. It didn't matter what he was talking about, or if we'd heard the story 100 times beore - we were eager to hear him tell it again. Who else could make Altavista so interesting and exciting? We heard about his senior prom, his trips to DCI competitions with Jenny, or to New York with the band boosters, or the time they won Band of the Day, and one student jumped off of the top of the bleachers to hug him.

One day in the sixth grade, he came in and told us about marching band. He was so animated and excited. He told us how much work it was, how much time it took, that it wasn't for the faint of heart, but that it could be very rewarding. This prompted me to start going to the football games again, where I saw this little band with a sound - and an attitude - the size of Texas. I was floored. I had never wanted to be a part of something so badly. And before long I was.

On the first day of band camp, I was on time. I got yelled at: "Early is on time and on time is late!" We did these extremely boring exercises in the hot August sun, marching up and down the drill field, getting yelled at from 20 different people the whole time. "Roll your feet! Get in step! Put your head up! Stop talking! Put your head up! PUT YOUR HEAD UP!!!" T used to say that even if you fell on your face in the middle of a performance, you should get back up with your head so high, that everyone would think that's what you were supposed to do. At the end of each practice, we were called to attention. "Band! Ten hut!" "WITH PRIDE!" That was our mantra. And we were so proud. Yes, us - the band geeks. We had worked so incredibly hard. We had poured our sweat and emotion into the show, doing drill exercises, breathing exercises, run-throughs, marching from one block to another ad nauseum. practicing at home, section practices, music practice, a hundred fundraisers, helping paint the sets, and on and on - all orchestrated by T. And it was coming together. Yes, we were extremely proud. We were proud of ourselves, and we were proud to be a part of something so special. To turn heads in every competition, where we marched everywhere with our heads high. We were proud, because T was proud of us. And we always wanted to make T proud.

How can one person inspire so many? How can a single person, with hard work and force of personality, shape literally thousands of lives? Maybe, on some level deep down, we knew that he was bigger than one picture, bigger than the show, bigger than music, bigger than life. The thing about life lessons is that you almost never realize you're learning them at the time. T wasn't just telling us how to get through the ups and downs of a performance - he was showing us how to get through the ups and downs of life. With dignity, energy, always giving 200%, perfect practice and work, and with pride - pride in your work, even when it was 24 boring whole notes; pride in your accomplishments, as an individual and a group; pride in your friends and family; and pride in who you are - whether you're the band geek or the star quarterback.

But the most valuable lesson was the first one. I think back on how frustrated I was with the exercise - with "listening to the story." Of course, now I know there is no right answer to Lone Star Ranger. T wasn't asking us to find one objective story. We were supposed to tell the story.

He was giving us a voice.

And now he's not here to tell us his stories - before school, after school, on the bus, or in his impeccably decorated home. The ones we never got tired of hearing. But we long ago commited hundreds of his stories to our hearts. And now, we have a voice. What a wonderful gift he gave us. Altavista has lost a legend, and I've lost my hero, a mentor, and one of the best friends I ever had. But if its true that people live on in the people they impact, then T's doing just fine. Because now I remember that all I ever wanted to do with my life is somehow, in some way, pass it on. And I know I'm not the only one who feels that way.

Thank you T.

Fear And Loathing In Vermont

2007-07-17T13:14:00.000-07:00

They looked like caricatures of the sons and daughters of bureaucrats from northern Virginia. Sitting there, planning their conference, filled with idealistic prattle about progressive causes. And Jesus God there were a lot of them in bumfuck Vermont in an existentially depressing era ... You see, America in the late 90s was a very special time and place to be a part of. There was apathy in every direction. Anyone could douse a flame anywhere with a steady regiment of ignorance and boredom. And, with the rise of profits and temporary autonomy in the internet, there was the sense that we didn't need each other anymore. Now, less than five years later, you can stand on a mountaintop in Vermont and look southward. And with the right kind of eyes, you can almost see the mushroom cloud rising from Washington D.C. But, no sympathy for the devil. Buy the ticket, take the ride.