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.
Wednesday, November 26, 2008
Wednesday, June 4, 2008
Congressman Robert Wexler at DNC RBC Meeting
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
Tuesday, February 12, 2008
William and Mary President Fired for Free Speech
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"
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
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.
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.
Monday, February 4, 2008
My Super Tuesday Projections
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%
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%
Monday, January 28, 2008
The Fourth Amendment Gone Wild: Part I
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.
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.
Wednesday, January 2, 2008
District of Columbia v. Heller
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
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
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