Category Archives: Judiciary

No Bill. Just No.

This tweet was posted by Bill Cosby shortly after he left prison and returned to his home. IMHO, never has a bigger piece of BS been posted on the Internet. For those in the audience who are even older than I am, IMHO means, In My Humble Opinion. These acronyms abound in the world of social media but it is becoming more and more important that I remind readers that this blog represents my opinion. This is because now that Chief Justice John Roberts has achieve his lifelong goal of nullifying the Voting Rights Act and eviscerating the Fifteenth Amendment along with it, Justices Neil Gorsuch and Clarence Thomas are taking aim at the First and the Sullivan exemption for critics of public figures may not be long for this world. That’s a subject for another day.

Today we have Bill Cosby. I have managed to avoid writing about Cosby for years. But this tweet, posted just hours after the comedian who was put on trial for sexual assault, convicted by a jury, and sentenced to spend 3-10 years in jail was released from prison, was the last straw.

No, William Henry Cosby, Jr., your release has nothing to do with innocence. It does not make you innocent. And your victory dance is both unseemly and unsightly for a man who remains, in my opinion, both a disgrace and a profound disappointment.

A disappointment, because I still remember my first serious date. The year was 1968. I had my new driver’s license. I had convinced my mother to let me borrow her car. I had convinced a very nice high school classmate to join me on this expedition. And she had convinced her father to trust me with his daughter on a Saturday night trip to downtown Chicago for a grownup dinner and then a show.

That show was at the Auditorium Theater, a newly restored nearly four thousand seat turn of the century venue. The performance consisted of Bill Cosby, alone, with a stool, a microphone, and a follow spot. And he had the packed house rolling in the aisles laughing our heads off for 90 intermission free minutes. This was the year Martin Luther King was assassinated. The year Bobby Kennedy was assassinated. The year of riots in many major cities at the height of the Civil Rights movement, the woman’s rights movement, the anti-Vietnam war movement, riots at the Democratic National Convention in Chicago. I’m a lot older now but I can’t remember another year like that. It seemed to me as if the country was about to explode. But Cosby brought people together, young and old, black and white, it was an amazingly diverse audience. He told stories we could all relate to. He never used a profane word. It was a great first adult date and I talked about it for years.

But my disappointment with the guy once known to millions as “America’s Dad” is nothing. Cosby’s disgrace comes from the actions of his “other” persona. The persona he kept hidden from me and almost everyone else. For the man once defined by the character of Cliff Huxtable and Jell-O commercials is now defined as the man accused by some sixty woman of sexual assault. I know, it’s my opinion again. But you can’t ignore the accusations from so many, all basically telling the same story of a sexual predator who used drugs to have his way with women who could not defend themselves.

Cosby didn’t deny the events, he maintained they were consensual. He admitted to giving drugs to women in a sworn deposition in a civil lawsuit against him. The Fifth Amendment says you can’t be forced to testify against yourself. To force Cosby’s testimony in that case, the local district attorney promised Cosby would not face a criminal indictment. That district attorney left office and his successors broke the agreement.

Cosby was tried twice on criminal charges. The first criminal court proceeding against him ended in a mistrial, but the second jury concluded Cosby had drugged and assaulted Temple University employee Andrea Constand in 2004. He is not now and never will be, at he states in his tweet, innocent.

Which is why I most painfully concur with the decision to release Cosby from prison. It is because Cosby does get one thing right in his tweet when he gives “thanks to the Pennsylvania Supreme Court for upholding the rule of law.”

The decision runs 79 pages but it boils down to one question. Did prosecutors break an agreement with Cosby? The answer is yes. The deposition testimony from the civil case cannot be used against him in a criminal trial. Justice and the rule of law are two separate matters. In this case, the cause of justice was not served. But the rule of law was upheld.

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Ban the Damn Guns

America today is suffering a plague of gun violence.

It wasn’t always this way. Americans used to own guns without engaging in daily massacres. As a Chicago native, I learned as a child about the infamous St. Valentine’s Day Massacre of 1929, when members of one Chicago gang set up and killed seven members of a rival gang. It was so shocking it led to legislation that prohibited automatic weapons in the U.S.

That ban was extended with restrictions on “semiautomatic assault weapons,” as well as magazines that met the criteria for what it defined as a “large capacity ammunition feeding device,” in 1989 after 34 children and a teacher were shot and five children killed in Stockton, California with a semi-automatic Kalashnikov rifle. A pull of the trigger is required for each shot of a semi-automatic. An automatic fires continuously.

The Federal Assault Weapons ban went into effect in 1994 after a 52-48 vote in the Senate. President Bill Clinton signed it into law the same day. But times have changed. The ban expired after ten years and attempts to renew it have repeatedly failed. In 2018, another Valentine’s Day shooting, this one at Marjory Stoneman Douglas High School in Parkland, Florida, killed 17 children and wounded 17 others. This time, then-President Donald Trump called for arming teachers, and the Republican-dominated Florida legislature rejected a bill that would have limited some high-capacity guns.

Fast forward to today. Our acceptance of violence npw stands in striking contrast to Americans’ horror at the 1929 Valentine’s Day Massacre. I’ve done the legal arguments before, most notably here in a column which includes Chief Justice Warren Berger’s declaration that the conservative reading of the Second Amendment is a “fraud.”

I won’t repeat those arguments. What I do want to do is call your attention to the latest judicial idiocy, California has had its own ban in assault weapons for thirty years. Six other states plus the District of Columbia have similar bans. You would think even if the Second Amendment restricts the Federal government on gun control, language putting the right to bear arms in the context of a “well-regulated militia” would allow the states, which at the time the Bill of Rights was written controlled the militia, to pass reasonable legislation to regulate firearms.

U.S. District Judge Roger Benitez of the United States District Court for the Southern District of California now says he knows better than Berger and the state of California. He must figure the words “well-regulated” and “militia” were just thrown in because the Framers had some extra ink they wanted to use up. In a 94-page opinion Benitez declared unconstitutional the California statute. Benitez, appointed to the bench by President George W. Bush, comes out swinging with his opening paragraph:

Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR 15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.

Miller v Bonta, 19-cv-1537-BEN (JLB)

The Law and Crime blog has a detailed set of quotes from the decision. I’ll dwell on just a few. Judge Benitez writes, “The assault weapons ban has had no effect. California’s experiment is a failure.” This conclusion follows an analysis that claims the rate at which assault weapons were used in mass killings in California during the years the weapons ban has been in effect has not changed. Benitez also writes that mass killings are “rare events.” He also states, “A Californian is three times more likely to be murdered by an attacker’s bare hands, fists, or feet, than by his rifle.”

The New York Times ran a partial list of recent mass shootings in the United States.

Politifact earlier this year found that 10 of 11 mass shootings were done with AR-15 weapons. Newsweek says they were used in 26 of the last 80 mass shootings. As to his other conclusion, I have to wonder if he’d like to stand up for a duel. He gets the Swiss Army knife while his challenger gets the AR-15.

The hypocrisy of the conservatives is clearly on display here. If it is the place of judges only to “say what the law is,” Marbury v. Madison, 5 U.S. 137 (1803), Judge Benitez’s judgments on failure and the frequency of events is way out of the base path. If you believe in a state’s right to regulate its own militia, Benitez is also out of bounds.

Voters generally support an assault weapons ban. They support a large magazine ban. They support enhanced background checks. They support closing the gun show loophole. They might support amending the Second Amendment itself to clear up the poor punctuation that the gun lobby and their supporters in Congress and on the bench have used in the last few decades to prevent reasonable regulation. The United States has many more deaths by guns than other western developed countries. The United States has the weakest gun control laws in that group.

Do the math.

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Pay to Play: The American Way

Money has always been a big factor in American politics. You can’t outright pay politicians in return for their vote on an issue of interest to you. That’s bribery and it’s a crime. 18 U.S. Code § 201. But you can come very close. That’s because it costs a tremendous amount of money to run for public office and we leave it to the politicians to raise their own funds.

State-wide races for governor, state legislator, or U.S. House or Senate seats can cost hundreds of thousands or millions of dollars. A major state-wide campaign requires a hefty advertising budget and paid staff to handle things like communications, strategic planning, finances, and legal compliance.

So the holders of public office, from the smallest local post to the highest in the land, spend a great amount of their time raising money to finance their elections. In fact, both the Republican and the Democratic parties have offices located within walking distance of the Capitol. That’s because it is illegal for members to raise money from offices paid for by taxpayer dollars. The party offices contain phone banks and members are expected to put in time working those phones. Dialing for dollars as it were.

What does the donor get for those dollars? As previously stated it is not as crass as, “You make the donation and I’ll vote your way.” But it’s damn close. Consider this scenario: Two constituents are on the line, both want to talk to you about a piece of pending legislation. One is an individual wage earner who is barely making ends meet and either doesn’t contribute to your campaign fund at all or gives a token $25 each election cycle. The other is a professional lobbyist who represents a Fortune 100 company. That company contributes $250,000 each year to a political action committee which runs negative advertisements about your political opponent. Which call will you take?

The Curse of the First Amendment

It is, I must painfully admit, our wonderful First Amendment which is primarily responsible for this problem. While many countries have limits on how much money can be spent on political campaigns, and restrictions on how much money can be contributed, we have to cope with the wisdom of the framers who wrote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution, First Amendment

There is little question that the right of free speech allows one to stand on the tallest soapbox one can find and speak in favor of one’s favorite political candidate. Or that the right of a free press allows journalists to write what they will about the candidates. And that right to petition the Government? That is the right both our individual constituent and the lobbyist were exercising in the example I described above.

Make no mistake about it. Political speech is exactly the kind of speech the framers were writing about when they drafted the First Amendment. This was the kind of speech that could get your head separated from your body if you uttered it back then in many of the countries of Europe and the reigning monarch happened to take offense. So for our long history as a nation political speech has been some of the most protected.

That makes it extremely difficult to restrict the political speech of individuals and does give the rich an advantage. They can afford to buy expensive television commercials and web advertisements promoting their favorite candidates and policies. At least, that’s how Mister Justice Gurvey sees it.

Citizens Dis-United

But I am unlikely to preside from any bench other than the one in my garden. And those who sit on the federal benches of the United States have a far more expansive view of first amendment freedoms. I read the Constitution to apply to the relationship between people, as in the opening words of the preamble, “We the People,” and their government. Our federal judges have thrown corporations into the mix by ruling that corporations are people.

To me the concept is absurd. Business entities that survive the lives of their owners were well known to the framers who wrote the Constitution. In fact, most of the colonies were themselves business entities in the form of royal charters or grants. If the framers wanted these business entities to have the rights of people they would have said so. They did not. And that should be that for any originalist, textualist, or whatever the term the judges on the conservative right like to cite. Except, that they want corporations to have the rights of people. So consistent judicial logic goes out the window and they wave the rules of textualism where failure to do so might lead to a legal result inconsistent with their overriding ideology. Thus speaks the hypocrite.

All of this came to a head in Citizen’s United v. Federal Elections Commission, a 2010 Supreme Court decision that eviscerated federal election law which Congress had developed over one hundred years and which put significant restrictions on corporate attempts to influence elections. Critics charge the effect has been to greatly increase the already outsized influence of corporations, wealthy donors, and special interest groups. And the Court isn’t finished. Just last month it heard Americans for Prosperity Foundation v. Rodriquez, a case that may make the situation even worse.

The Confession of Ted Cruz

So if you want to play the “let’s write the laws” game you have to pay the law-writers. But while “Pay to Play” is, thanks to the Supreme Court, perfectly legal, there is still one rule most people follow: You pay to play but you don’t talk about Pay to Play. That’s because it looks bad, because it is bad. And politicians are afraid of looking bad. At least in front of the voters.

Unless of course you are Ted Cruz, a man so out of touch with reality, or just so dumb, that he just puts it out there. Texas’s answer to all three stooges recently wrote an op-ed for The Wall Street Journal complaining about corporations that are “woke.” By that he means, corporations like Coca-Cola, whose CEO James Quincey criticized voter suppression laws now being enacted in dozens of Republican controlled states saying he opposed “measures in the bills that would diminish or deter access to voting.” Quincey said Coke’s political action committee will not contribute to the campaigns of politicians who support these laws.

Well then, huffs and puffs Cruz, Senator guy who escaped for a vacation in Mexico while the people of his state were freezing during a power outage, if you don’t pay, don’t expect to play, Yes, Cruz supports voter suppression laws, and he tweeted:

There you have it. Pay to play. The Ted Cruz way.

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trump’s attempted coup – THAT WAS the week that was

The Week is Over

The cliché says that journalism is the first draft of history. We shall have to wait the verdict of historians several years down the road to craft a title for the tumultuous events of the last week and put them into perspective. For now it shall suffice to note that the FBI is calling on citizens to help identify members of the violent mob of Donald Trump supporters who attacked the United States Capitol on Wednesday in an attempt to stop Congress from tallying the Electoral College votes declaring Joseph Biden and Kamala Harris the next president and vice-president.

It was the first time since the Constitution was ratified on June 21, 1788, that a President of the United States attempted to overturn the results of an election and remain in office after the election of his successor had been certified by the states and the District of Columbia.

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trump’s attempted coup – Day 5

January 7 – Insurrection

A violent mob of Donald Trump supporters, urged to action by Trump himself, Wednesday attacked the United States Capitol in an attempt to stop Congress from tallying the certified Electoral College votes declaring Joseph Biden and Kamala Harris the next president and vice-president of the United States.

In that, they failed.

But for hours they laid siege to the seat of the American government, marauding through the halls, vandalizing offices, occupying the chambers of the Senate and the House of Representatives, and preventing the members from attending to the business of the day. Before the insurrection was quelled, shots had been fired inside the Capitol and on the grounds, tear gas and flash bangs had been utilized, and four people had died.

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trump’s attempted coup – Day 4

US Senate
(January 6 – Georgia and the Senate)

Pinch me.

Awww…. Not so hard.

We will not know for sure until the official certification. But as of this writing, it looks as if the people of Georgia have come through and elected two Democrats to the United States Senate. That would make the Senate evenly divided, 50 Democrats and 50 Republicans. And in case of a tie vote, the tie is broken by the President of the Senate. “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided” (U.S. Constitution, Article I, section 3). And the President of the Senate is, drum-roll please, the Vice-President of the United States. And the Vice-President of the United States is, rim-shot here, Democrat Kamala Harris!

What does this mean? First and foremost, it means Kentucky Republican Mitch McConnell will get a new title. Minority Leader. And as minority leader, he will be able to control, insert cymbal crash here, absolutely nothing. With the election results still unofficial I am afraid of jinxing something. But I would love to be able to get into McConnell’s face and congratulate him on his new found impotence.

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trump’s attempted coup – Day 3

(January 5 – U.S.D.C. Court)

They are battening down the hatches at the White House. But before we get to that, we have another extraordinary court decision to contemplate.

Yesterday the United States District Court for the District of Columbia denied still another request for an injunction seeking to stop Congress from counting the Electoral College ballots declaring Joe Biden the 46th President when it meets tomorrow. The opinion handed down by Judge James E. Boasberg pulls no punches in describing the scope of the plaintiffs’ complaint:

Plaintiffs’ aims in this election challenge are bold indeed: they ask this Court to declare unconstitutional several decades-old federal statutes governing the appointment of electors and the counting of electoral votes for President of the United States; to invalidate multiple state statutes regulating the certification of Presidential votes; to ignore certain Supreme Court decisions; and, the coup de grace, to enjoin the U.S. Congress from counting the electoral votes on January 6, 2021, and declaring Joseph R. Biden the next President.

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