Category Archives: Courts

The Supreme Court Gets One Wrong…Maybe

Posted on by
Reply

A murderous felon in Alabama was, on conviction in 1994, sentenced to life in prison by his jury, and that sentence was overridden by the presiding judge, who ordered his execution.  The man was scheduled to be executed Thursday, but the Supreme Court has stayed the execution pending its decision on whether to hear the man’s appeal of his execution.

The stay is consistent with the Court’s prior rulings striking State laws that allow judges to overrule juries and to impose death sentences where the juries decided otherwise.  In this regard, I agree: the jury is the proper sentencer where a man’s life is in the balance.

However.

The Court’s prior no-judge-overrules precedent is based on its original precedent in a 1958 ruling in Trop v Dulles in which Chief Justice Earl Warren wrote that the evolving standards of decency that mark the progress of a maturing society mean that the 8th Amendment’s injunction against cruel and unusual punishment necessarily means that a born-citizen’s citizenship cannot be revoked by action of the Federal government—that would be a cruel and unusual destruction of a citizen’s political life.  Over a series of subsequent rulings, that evolving standards standard has been applied to an ever broader series of cases the Court has heard (recall that this is deliberate for a Liberal Court: Justice Ruth Bader Ginsberg’s “living Constitution” ideology, for instance).

And so, here we are.  The felon currently appealing his sentence is making the argument, among others, that his execution would itself be a cruel and unusual punishment under those evolving standards because the execution would result from a judge overruling the jury.

No state currently allows a judge to override a jury’s capital sentencing verdict. This constitutes not merely “national consensus,” but unanimous agreement that a sentence of death imposed by a judge contrary to a jury’s life verdict does not comport with our evolving standards of decency and the Eighth Amendment[.]

But this is wrong.  Our society’s standards of decency may well be—I believe they are—evolving (whether the evolution necessarily, or even merely monotonically, moves in a maturing direction is a separate question), but the Constitution has not changed on this.  The only way the Constitution lives, and it lives quite vibrantly, is through Article V and We the People, which provide for amending—evolving, if you will—this supreme Law of the Land.  We the People have not amended our Constitution to say that execution is cruel and (or even “or”) unusual.  Indeed, for judges, or Justices, to presume to carry out this evolution from the bench is, in the late Justice Antonin Scalia’s words, simply not compatible with democratic theory.  No part of the Constitution can be held to mean whatever [it] ought to mean, and that unelected judges decide what that is*.

It’ll be interesting, and instructive, to hear the Court’s rationale for declining to hear the appeal, as it will be to hear the Court’s rationale, if it decides to hear, for overriding the trial judge’s sentence.

 

*A Matter of Interpretation, 2018 New Edition

Update: Corrected poorly selected noun in the 4th paragraph.  The Court hears cases; it renders opinions.

Congressional Districts and Gerrymandering

Posted on by
Reply

North Carolina’s Congressional districts are illegally drawn, says a special three-judge court.

A special three-judge court invalidated the North Carolina map after finding Republicans adopted it for the driving purpose of magnifying the party’s political power beyond its share of the electorate.

I’ll leave aside the disparate impact sewage that local districts must reflect the larger State’s electorate “demographics.”  The larger problem is with the underlying premise of gerrymandering: that some groups of Americans need their political power enhanced relative to other groups of Americans because some groups are, in some sense, fewer in numbers than other groups.

That’s not relevant when it comes to citizenship and the citizens’ right and obligation to vote.  All Americans are the same in the voting booth.  The differentiation occurs legitimately only in the campaigns for office and on the ballot and nowhere else.  Indeed,

[T]he court’s opinion found that the Republican-drawn map violated the Constitution’s guarantee of equal protection and other provisions that deal with the election of members of Congress.

Any form of gerrymandering commits that violation, since any form of gerrymandering by design enhances one group at the expense of another.

It’s long past time for courts to recognize this—and for politicians to preempt the question by acting on their recognition of this simple fact.  Don’t gerrymander.  Draw Congressional districts solely as squares containing substantially equal populations of citizens, with the first four squares’ shared corner at the State’s geographic center and working out from there to the State’s boundaries with abutting States.  The squares’ straight sides (and the squareness of the district) should be deviated from only at those boundaries.

It’s time to treat Americans in the voting booth—in the political arena—as that which we are: Americans.  The demographic membership of an American is deeply secondary to that.

A Federal Judge Has Overstepped

Posted on by
Reply

DACA was implemented by Department of Homeland Security memorandum—not even through Rule Making—and it can be removed by the same process or by Executive Order.  There is no legislation being ignored or abused here; this is purely and solely an internal Executive Branch affair.  Alsup is nakedly insinuating himself in what is only—can only be—a political matter and not a judicial one in a blatant violation of Constitutional separation of powers.

Even ex-Progressive-Democratic President Barack Obama (D) confessed he had no Constitutional authority to order the things DACA orders—before he had his DHS Secretary issue her memorandum.

Nevertheless, a Federal judge, William Alsup (from San Francisco and a Clinton appointee, but that has nothing to do with the illegitimacy of his ruling, only with the likelihood with which he’d issue such a thing) has barred President Donald Trump’s order rescinding it and which order also HIAed the rescission until March to give Congress time to handle the matter legislatively, which is how even Obama originally claimed he wanted it handled.

Alsup’s ruling ignores the law, ignores the supreme Law of the Land, and it creates “rights” that do not exist.  DACA may be good or bad policy, but its implementation or removal is a political decision; it has no place in the judiciary.  This is judicial activism at its worst.  Alsup’s ruling is a clear violation of his oath of office.  He needs to be dealt with accordingly.

YGTBSM

Posted on by
Reply

Another in the annals of.

The Louisiana court system, all the way up to the State’s Supreme Court, has upheld police denial of a (black) defendant’s demand for a lawyer during a police interrogation.  At one point during the interrogation, the suspect said, quite clearly IMNSHO,

If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog ’cause this is not what’s up.

The Supreme Court said the suspect’s statement was too ambiguous to constitute a demand for a lawyer.  Justice Scott Chrichton, in concurring, actually wrote in all seriousness,

In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview….

Elie Mystal, in his article at the link, generously attributed the ruling to an inaccurate transcript—”lawyer dog” vice the defendant’s clearly stated “lawyer, dawg,” even as he, rightly, decried the blatant racism in denying the suspect his lawyer.  Over that “ambiguity.”

I’m not so inclined.  Even without the comma, “lawyer dog” is a pretty clear slang phrase identifying the object of the suspect’s call.

Dawg.

“Continuing to Cooperate”

Posted on by
1

Special Counsel Robert Mueller revealed some indictments and charges, and he “accepted” a guilty plea deal from George Papadopoulos, a volunteer associate of the Trump campaign.

I’ll leave aside the indictments (which charges are wholly unrelated to the Trump campaign or the Trump administration or anything related to them, anyway); what’s interesting is Mueller’s plea deal with Papadopoulos.

Mr Papadopoulos is continuing to cooperate in the investigation, according to his plea agreement.

And that’s what’s key:

Papadopoulos’ cooperation is central to his plea. The plea agreement provides that the government will bring his cooperation to the Court’s attention at sentencing and that sentencing will be delayed until his cooperation is complete.

The prosecution—Mueller—is holding Papadopoulos’ sentence over his head in order to get “evidence” convenient to Mueller’s case.  This is legalized extortion.

I have to ask: what honest prosecutor would find value in what a man in Papadopoulos’ position might say about others whom Mueller is targeting?  What jury could take seriously testimony that the prosecutor—Mueller—has bought and paid for, or pressured out of on threat of heavy sentencing?

This sort of thing isn’t unique to Mueller, for all that Mueller’s pressuring of a witness is very high profile.  It’s a standard prosecutorial tactic.  “Tell me what I want to hear, and repeat it in open court, or go to jail for a very long time.”