Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Wednesday, May 31, 2006

There He Stands

As an outcast. Tom Parker is running against Drayton Nabers for Chief Justice. Yet today at a news conference Associate Justice Mike Bolin said:

While Tom Parker's tenure has been marked by divisiveness, an activist judicial philosophy and an inability to do his job, Chief Justice Nabers is a hard worker and strong conservative leader who runs the court fairly, effectively and with integrity.

I do not have to tell you how remarkable it is for a sitting justice - one not involved in any election this year - to so strongly endorse a judicial candidate. Justice Bolin explains:

"I am not a press conference happy jurist," Bolin said, but he said the race for chief justice is too important to stay silent.

As for Mini-Moore's call to ignore the U.S. Supreme Court:

"I wouldn't let someone like the San Francisco mayor ignore the rule of law and pick and choose which laws to follow, and I'm not willing to let Tom Parker do it either," Bolin said.

Mini-Moore says he believes in the rule of law, but he thinks

the rule of law is the Constitution.

No doubt it is. The question, though, is who gets to decide what it means. When is a search unreasonable? Or a punishment cruel and unusual? What is due process? No two people will provide the same answers to these questions. Every court that considers them will come to a different conclusion. Hence, someone has to have the final word. That word may not be correct, but it is essential if we want coherent laws.

As evidence, I again ask you to compare Mini-Moore's jurisprudence:

a judge takes an oath to support the constitution -- not to automatically follow activist justices who believe their own devolving standards of decency trump the text of the constitution. Thus, faithful adherence to the judicial oath requires resistance to such activism

To Martin Luther's theology:

"Unless I am convicted by Scripture and plain reason—I do not accept the authority of popes and councils, for they have contradicted each other—my conscience is captive to the Word of God. I cannot and will not recant anything, for to go against conscience is neither right nor safe."

I see no difference between the two theories. Thus, applying Mini-Moore's would cause the same problem as does the application of Luther's: Schism.

Unintended Consequences

The Decatur Daily asks today whether Alabama's new anti-gay people amendment will unintentionally undermine domestic violence prosecutions. That was the result when Ohio decided to write homophobia into its constitution. In this decision, an Ohio Appellate Court held that the amendment prohibited prosecuting non-married people for domestic violence.

Ohio's condemnatory Amendment states:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage

The Domestic Violence statute protected anyone "living as a spouse." The statute defined "person living as a spouse" as:

a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.

The court held that this expansive definition created a "legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." The defendant and the victim were not legally married; they were quasi-spouses. The victim in the case was protected soley by virtue of being a quasi-spouse. Because the amendment prohibited treating quasi-spouses like spouses, the amendment prohibited the domestic violence prosecution.

Here is Alabama's proposed gay-people-are-gross amendment:

No marriage license shall be issued in Alabama to parties of the same sex and that the state shall not recognize a marriage of parties of the same sex that occurred as a result of the law of any other jurisdiction

This ignorance is already codified at Section 30-1-19 of the Alabama Code:

(a)This section shall be known and may be cited as the "Alabama Marriage Protection Act."

(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.

(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.

(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.

(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.

You can already see that Alabama's hostility towards gay people will not affect our domestic violence laws. The key to the Ohio decision was the prohibition of any legal status for quasi-marriages. Because the domestic violence statute protected quasi-marriages, it violated the amendment. Alabama, to its credit, does not go so far. All we prohibit is gay marriage itself. There is no ban on creating legal relationships similar to marriage. Hence, it does not matter whether or not Alabama's domestic violence law grants quasi-marital status to non-married people.

No, the only result of our soon to be enacted amendment is the intended one: Letting gay people know we do not want them around. The sponsor of the Amendment, Sen. Hinton Mitchem, D-Albertville, puts it best:

"I do not wear my religion on my sleeve," Mitchem said. "I [introduced the amendment] after a trip to San Francisco where I saw a black man and a white woman two men on television in a public place kissing deeply. I do not think it is appropriate for children to grow up in a home where they see that."

Right. The law has no higher purpose than preventing public displays of affection.

Objection, Your Honor, Relevance?

I almost wholeheartedly agree with this statement by the Montgomery Advertiser:

Voters in the Democratic [Attorney General] primary have one of the all-time political no-brainers in this contest. John Tyson, veteran district attorney in Mobile County, is a proven prosecutor with proposals to fight crime that are tough in practice, not just in talk. Tyson, who served 14 years on the state Board of Education before becoming district attorney, would stand out in any field, but in this one his fitness for the office outshines that of his opponent by light-years.

Tyson's opponent in the primary, Larry Darby, once served as a spokesman for the state's atheist organization. He has since moved to the most distant fringes of political thought -- denying the Holocaust occurred, calling for the declaration of martial law to address immigration issues, blasting the federal government as a tool to "advance the interests of the subversive state of Israel" and vowing to attack "subversive interests" such as Alabama newspapers owned by "foreign corporations" he says "appear complicit in treason against Alabama."

Darby does not merit the serious consideration of any voter.

I agree with the conclusion, but that Darby is an atheist is irrelevant to it. He believes there is no god. O.K., how will that change the way he performs his duties as A.G.? What does his atheism tell voters about his legal abilities? I've said it before, and I'll say it again, a candidate's choice of a deity is as relevant to their job as my choice in sports teams is relevant to mine. There was no reason to include Darby's theology in this summary of his lunacy. It is neither a reason to vote for Darby, nor a reason to vote against Darby. Including his atheism in this list was error, harmless error because removing it does not change the result, but error nonetheless.

Tuesday, May 30, 2006

Tom Parker Hates Your Family

Have you seen the newest anti-Parker add? You can read about it, and see parts of it, here. Basically it says he hid donations made by trial lawyers to his 2004 campaign.

What bothers me is why the add says that is a bad thing. If they wanted to attack Mini-Moore for ignoring the reporting laws, fine. If the creators think concerns about vague and attenuated negative consequences for the economy should trump an individual's right to their day in court, and the adds are evidence Mini-Moore disagrees, fine. But what the add asserts is that trial lawyers are out to destroy families.

That is just plain stupid. First of all, let's get the terms straight. Just about every lawyer will end up in court some day. Hence all of them are potentially trial lawyers. Presumably, though, what dopes like the creators of this add mean by trial lawyers is lawyers who usually represent injured individuals in lawsuits against businesses.

But in that battle, who is anti-family? The attorney who represents the bread winner who got run over by the negligent truck driver? Or the guy defending the truck driver's insurer, who drags the litigation on as long as possible in order to pad his own bill and encourage the plaintiff to settle for less than the full value of the claim?

I am not saying civil defense attorneys are evil, all I am doing is pointing out the obvious: Every attorney will do things that could be labeled "anti-family." That is because our loyalties are to our clients, not to someone else's social agenda. No group of attorneys is more family friendly than another.

Sure, lawyers who typically sue businesses are bad for businesses. Opposing a candidate because he is unduly favorable to those lawyers is perfectly fine if you want to support the businesses. Just be honest about the reasons. Don't give us this crap about family values.

The Clones And Abortion

In Alabama,

no person shall perform an abortion upon an unemancipated minor unless he or his agent first obtains the written consent of either parent or the legal guardian of the minor. (Ala.Code 26-21-3(a)).

There are two exceptions. First, if the pregnancy is the result of incest, "written notice to the minor's mother by certified mail shall be sufficient." (Ala.Code 26-21-3(b). Second:

A minor who elects not to seek or does not or cannot for any reason, including unavailability or refusal by either or both parents or legal guardian, obtain consent from either of her parents or legal guardian under this section, may petition, on her own behalf, the juvenile court, or court of equal standing, in the county in which the minor resides or in the county in which the abortion is to be performed for a waiver of the consent requirement. (Ala.Code26-21-3(e)).

Section 26-21-4 provides the standard the court is to use in deciding whether to waive the parental consent requirement:

The required consent shall be waived if the court finds either:

(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or

(2) That performance of the abortion would be in the best interest of the minor.

I mention this for two reasons. First, you sometimes hear folks say that we have "abortion on demand" in this country. I think these statutes refute that claim, for minors at least. The result of the statute is that women under eighteen do NOT have a right to an abortion. They have a right to ask their parents or a court to let them have an abortion. Minors only get the abortion if a parent or a court allows it. That may be a good thing, it may be a bad thing, but it is not "abortion on demand."

Second, Supreme Court hopeful Ben Hand is ignoring the law and the facts when he attacks Justice Lyons for "showing insufficient sensitivity to the lives of unborn children." Hand is mad that on two occasions Justice Lyons voted to allow an abortion without parental consent. Here is Hand's position:

"To me, a life is a life, and [Lyons has] messed it up several times," he said. "I would say there should be a blanket denial to any of them. ... I believe the same Constitution that protects your right to life protects the life of an unborn child."

He may want to deny every waiver case, but the law does not allow him to do so. The law requires a case by case consideration. If the particular minor is mature and well informed or the abortion is in the best interests of the child, then the court has to allow the abortion. Hand may not like it, but that is the law.

Obviously, the waiver standard is amorphous. There will be some cases where everyone agrees the child has not met the standard; there will be some cases where everyone agrees the child has met the standard. But most of the cases could go either way. The deciding factor in those cases will be the judge's beliefs about abortion. This is where Hand ignores the facts. According to the same story, in seventy five percent of the cases Lyons has heard, Lyons has concluded that the waiver was not appropriate. Whenever he can, Lyons is ruling against the abortion. In other words, Lyons is expressing his pro-life position within the bounds of the law.

That, in sum, is the difference between Clones like Hand and Justices like Lyons. Everyone agrees that personal beliefs play a role in judicial decision making. It is unavoidable. The difference is the size of the role. The Clones beliefs are the stars of their decisions. Real judges make beliefs a small part of the supporting cast.


From a description of a Roy Moore speech:

Wyndell Williams drove from his home in Cullman to hear Moore. Holding a sign with a photo of him and his Filipino wife, who has not yet been granted permission to come to the United States, Williams applauded Moore.

"He's a man of his word and a man we can trust to defend our borders," said Williams referring to the on-going immigration issue.

Williams said when his wife, whom he met by browsing through what he called "sort of a catalogue," comes to America it will be legally. "That's what Roy Moore is for, legal immigration. And so am I."

You guess is as good as mine. I just hope she isn't inflatable.

Whose Fault Is That?

Recently, Roy Moore's spokesman J. Holland said:

he's tired of Moore being pigeon-holed as a one-issue candidate, saying Moore is the only candidate that has a platform. He's taken stands against accepting political action committee money, and hammered Riley and the Legislature for approving annual property tax reappraisals, which Moore says are tantamount to annual tax increases. He also wants the state Legislature to meet every other year instead of every year, and supports term limits and closing the U.S. borders to illegal aliens. "Judge Roy Moore is a well-rounded candidate," Holland said.

Sure he is. I have no idea why anyone would think of Moore as a one issue candidate. Of course, there is stuff like this:

[Yesterday] at Birmingham's Linn Park, Moore addressed more than 300 supporters, including veterans. Moore wore a black ball cap with gold lettering spelling out "Vietnam veteran." The West Point graduate, who served in Vietnam, held most of his audience spellbound as he quoted from speeches, much of it from memory, of past presidents and dead soldiers.

The speeches or parts of speeches Moore used all took him to his central point for the day - that America and Alabama were once places that acknowledged God, but are now places where that acknowledgment is under attack.

"For the last 20 years, we've seen an attack to take away our acknowledgment of God," Moore told the crowd. He criticized efforts to ban prayer in public schools. He criticized "men in black robes" who he said think they know more than God and who unlawfully order removal of the Ten Commandments from courthouses.

If Holland does not want people to see Moore as a one issue candidate, then Moore needs to change his message. The problem is Roy Moore, not perceptions of Roy Moore.

Monday, May 29, 2006

Road Kill

Having the day off, I got up early and went for a ride. This was a fairly intense effort over a thirty mile course, featuring three decent climbs. I was cooking through the whole ride, and hit my favorite section feeling very satisfied.

This part, the coolest of the ride, starts at the top of Red Mountain and ends at my doorstep. It's the last four miles of the ride and most of it is downhill. First you zip up, down and around the curvey rollers on Argyle. Then across Pawnee and up one of the last little hills before hitting Altamont. Altamont is a shaded mile on top of the mountain, flat and fast. It ends in a hairpin curve where it turns into Essex. There begins the big downhill. You fly down Essex through Forest Park, around the back of the Triangle Park and onto Clairmont. Continuing down and around Clairmont, you finally turn left at the bottom of the hill.

Almost immediately after the left, you make a right and go up a short, but steep, little rise. If you time it right, your momentum from the big downhill will shoot you about two thirds of the way up, so that you only need a few good pedal strokes to crest it and start down again.

That is what I was doing this morning. I had made the left and was approaching the rise. My outside leg was straight and stiff, keeping the tires glued to the ground. I leaned towards the turn, pressing down on the inside of the handlebars. I was going to slice through the curve and explode up the hill.

But then the dopey squirrel shot out in front of me. If the idiot had kept going it would have been fine. Instead, he scoots across my line, and as I swerve inwards to avoid him, he reverses course. You have probably used your car to do this dance. The result was the same here: Thump.

Momentum and motivation gone, I coasted up the hill and turned around to see the grizly results. No blood, but no movement either. Then he staggered to his feet, only to fall back over again. I got off the bike and picked him up. Nothing felt broken. Not knowing what else to do, I carried him over to the side of the road and placed him under some bushes. I hope he is o.k. I think maybe I just stunned him.

It could have been worse. That little vermin could have caused me to wreck my bike, which recently spent a month in the shop getting a new paint job. If that had happened, well, let's just say I would be on PETA's hit list. As it was, I think we both escaped unharmed.

Sunday, May 28, 2006

A Weekend in Tupelo

I'm sitting on the front porch, paying little attention to the conversation around me. There's a couple of big ol' red headed woodpeckers flying around. They attack a utility pole in a field across the road, then disappear into the weeds. They take off and fly past me over the house and maybe end up somewhere by the pond in back.

When I lose the birds, I turn my mind to the puppy asleep on my lap. She can't be more than a month old, a boxer - who looks like a bobble head doll - snoozing soundly to the rythm of my breath. I don't know her name, not that it matters. This dog will be long gone by the next time I am here. She was the runt of the litter, and already has some issues with worms, or something similar. You can count her ribs.

It's not that her owner is cruel, or even neglectful. The dog will get plenty of food and affection. She will sleep, and spend most of her time, indoors. But the idea of taking a dog to a 'doctor' is foreign here. Shots, spaying, neutering, flee baths, these are unknown. Nature will just take its course. This dog is not strong, she will not survive.

Now I hear the conversation.

"So what are you and Julie fighting about now? I mean, every time I call, I have to figure out who is not talking to who."

"Well I told her that she and Amber could stay here, but I couldn't have no thief in my house."


"Ricky done stole my pain pills, and I know it 'cause Momma told me. I may be lots of things, but I ain't no thief, and I'm not havin' none in my house."

"So why does that mean you and Julie have to fight?"

"It don't. She's the one got all mad about it. I told her she could stay here."

"Right. Anyway, I like your new place."

"I'm hoping maybe to try to buy it one day, but I got to get my stuff together for now. It's got that pond out back, lots of bass in there. And two hundred acres besides. The owner don't care if we go back there either. I'm gonna borry me some money an get a pool this summer. After that I need to save so I can buy a car. Andrew done totalled mine."

"Where do the kids go to school out here?"

"Andrew don't. I'm trying to get him to get his GED. Lisa stays with her grandma in town."

Now I hear something, so I look up. It's the neighbors, across the street, loading up for church. Mom and three kids, all in Sunday clothes, piling into the Expedition. They leave, and dad appears. No shirt, belly hanging over his belt, he fires up the grill. Never too soon to start the barbeque, I guess.

I finish my coffee. The temperature is in the mid-eighties. The breeze is dying, the shade disappearing. We all agree it's time to go inside. The oven broke, so finding a hot breakfast becomes the polite reason for leaving.

We get into our car. Nothing fancy, but it cranks right up, and has no cigarette burns on the seats or food rotting on the floor. We exchange sighs as we back down the gravel and grass driveway. No one ever seems happy, but nothing ever changes.

Then again, I don't know what they say about us. Perhaps the subject is how we live in some little house in some big crime-ridden city. Or maybe they call us uppity, what with that beer I drink costing eight dollars a six pack. My fear? They could discuss how we have jobs that leave us no time to visit family.

I don't know. I never do. All I can say is that at the same time I look forward to getting home I feel guilty for leaving Mississippi.

Saturday, May 27, 2006

A Little Less Talk

Than usual is what there will be on the Alablawg this weekend. I'll be in the ghetto of Tupelo Mississippi, where I'll be happy to have electricity, never mind internet access. It's just one night, so don't worry too much. And I hope your weekend will provide a little more satisfaction than will mine.

Friday, May 26, 2006

The Race Card

From The Hill (H/T Legal Fiction):

Furious black lawmakers, rallying behind Rep. William Jefferson (D-La.), were pulled back from the brink of open revolt against House Minority Leader Nancy Pelosi (D-Calif.) in an emergency meeting with her Wednesday evening.

The meeting with a handful of CBC members was called after Pelosi wrote the embattled lawmaker, who is at the center of a massive bribery scandal, a curt note requesting his immediate resignation from the powerful Ways and Means Committee. . . .

Pelosi’s one-sentence missive to Jefferson called on him to vacate his committee seat “in the interest of upholding the high ethical standard of the House Democratic Caucus.”

Jefferson promptly refused, calling her request “discriminatory.”

Yes, she is discriminating . . . against legislators who are caught on tape taking a $100,000.00 bribe from FBI informants.. No other legislator has done that. Jefferson is in a class by himself right now, and Pelosi is being lenient, if anything.

It would be legitimate for Jefferson to argue that he should keep his seat until proven guilty. To cry racism only makes him look desperate. It also trivializes the real racial issues in this country. Each false shout of wolf makes everyone else reluctant to even investigate the next shout.


GM recently discontinued the H1 Hummer, what had been billed as "the biggest, toughest sport-utility vehicle on the road."

The blame is primarily going to the Hummer's sub-10 miles per gallon fuel 'efficiency.' But I think less expensive alternatives are the cause of the Hummer's declining sales.

The Wait (And Waste) Continues

For a ruling in the Cobb County sticker case. The Eleventh Circuit yesterday punted it back to the district court. (H/T Decision of the Day). This is the case from Georgia where the School Board put this disclaimer in the biology textbooks:

This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.

The question is whether or not that violated the establishment clause. There being no law in that area, just random decisions, each case depends on its particular facts. Is this action more like that unconstitutional one, or yonder constitutional one? It all comes down to who acted when and for what reason they acted. In this case the Eleventh Circuit said there is not enough information in the record to decide, so they have sent it back to the district court. They include 19 "nonexclusive . . . factual issues that it probably will want to address."

Holy waste of resources batman! Granted, the school board probably acted from impure motives. This is their history, after all:

In 1995 the Cobb County School District had an official policy concerning the instruction of students on "Theories of Origin." The policy acknowledged that "some scientific accounts of the origin of human species as taught in public schools are inconsistent with the family teachings of a significant number of Cobb County citizens." It provided that "the instructional program and curriculum of the school system shall be planned and organized with respect for these family teachings."

An accompanying regulation explained how the policy was to be implemented. The 1995 regulation stated that out of "respect for the family teachings of a significant number of Cobb County citizens," the subject of the origin of human species would not be taught in the elementary and middle schools, and instruction in it would not be mandatory in the district's high schools. The regulation did state that elective courses on alternative theories of the origin of human species, including creation theory, would be offered to high school students and noted in curriculum catalogs and listings. In compliance with the 1995 policy and regulation, the school district provided students with science textbooks only after any section containing material on evolution had been torn out of the books.

Yes, heaven forbid the truth should affect anyone's convictions. And "Family teachings?" Come on, at least be honest: "Some families don't like evolution because they think it conflicts with the Bible. We answer to these people at the polls, so, education be darned, we are doing what they want."

This is no longer the policy, but it is the context for the stickers. I have no doubt the stickers arose from religious motivations and acted to mollify religious concerns.

That said, this is a stupid case. Nothing in these stickers is harmful, or even untrue. I certainly do not think they are going to cause anyone to reject evolution, or feel excluded because of differing religious beliefs. Really, they sound to me like a good way to encourage the anti-evolution crowd to open their minds. If the goal is good science, these stickers probably achieve the goal, especially in light of the district's previous treatment of evolution. So, rather than requiring everyone to spend more time and money on the case, I wish the Eleventh Circuit had just ruled one way or the other.

Another Reason Vote Ed Packard S.O.S.

Poser has plenty of others here. Today, a reader e-mailed me a link to this statement on Packard's blog:

Alabama's ballot access requirements are too severe and are punitive by their very nature. I think the Legislature should review the requirements and take steps to expand the ballot choices offered to Alabamians. The Secretary of State, as the Chief Election Official, should be the advocate pushing for these changes.

He is dead right. Yes, we need some way to limit access to the ballot; we don't want to read the phone book in the voting booth. But the current cure - requiring 42,000 signatures - is worse than the disease. It solves the problem but it also makes this a de facto two party state. The result? You can vote for Joe Copeland for governor (or Larry Darby for A.G.), but not Loretta Nall for governor.

If you want to fix the problem short term, print, sign and mail Nall's petition today. If you want to solve it long term, vote for Packard as Secretary of State.

Btw, here is Nall on her most 'outrageous' position:

I think we can all agree that the drug war has failed. We all want the same things. We want safe neighborhoods where there are no gangs, no violence, no people selling drugs to any kid that wants them in an unregulated market. We want to keep families together. If I were to sit down with our law enforcement officials today and have a rational discussion about the drug war you would see that we are all really on the same page. I am not anti-cop but I do readily admit that the drug war has fostered disrespect and contempt for law enforcement. I want our officers to be safe and to protect all of us from real crime.

If you want your court system unclogged and able to deal with crimes like rape and murder then you have to address it by ending the drug war. If you want the forensics lab to devote its time to solving violent crimes with actual victims then you have to address it by ending the drug war. The drug laws actually create the crime that they were designed to protect us from. People who smoke marijuana do not belong in jail. Marijuana should be legal and available to adults. That would solve our prison crisis as most people in prison in Alabama for drug crimes are there for marijuana. It costs us $95 million a year just to house the marijuana smokers in Alabama's prison system. That is a lot of money that we could use to make things better for our state and our communities.

Does that make sense to you? Unless the current law changes, or she gets 42,000 signatures, your answer does not matter.

Peas In A Pod

Former Alabama Governor Fob James has endorsed Roy Moore for governor. No surprise there. James, most famous for dancing like a monkey to mock evolution, ran on the same platform as do the Moore-ons. From a 1998 article on James' primary victory over Winton Blount:

James' hiring of former Christian Coalition director Ralph Reed as a campaign consultant, his support for teacher-led prayer in school and the display of the Ten Commandments in an Alabama courtroom drew endorsements from national leaders of the religious right. . . . James campaigned on a states-rights platform that recalled the civil rights struggles of the 1960s. He has vowed to disregard Supreme Court orders on issues such as school prayer; threatened to call out the National Guard to defend a Ten Commandments display in a judge's courtroom; [and] argued that the Bill of Rights does not apply to the states in matters such as freedom of speech and religion.

Sound familiar? Here is Moore, speaking yesterday at a retirement community in Opelika:

Since the Supreme Court's 1963 ruling that state-support prayer in public schools was unconstitutional, schools have been plagued by violence and killing, Moore said.

"When I was in school, the worst problem we had was chewing gum in the classroom or some kid smoking in the bathroom," he said. "As we've lost our relationship with God, we've lost our relationship with each other."

Better yet, Mini-Moore recently had this to say:

Parker said that, given the right case, he might urge the Alabama Supreme Court to ignore a ruling by the U.S. Supreme Court on the death penalty, freedom of religion or some other issue if he believed the high court was wrong. . . . Parker said he believes federal courts did not have the authority to prohibit Moore from acknowledging God by installing the Ten Commandments monument. "This is a power they claim for themselves, but it's extra-constitutional," Parker said.

What is interesting about this is not so much the endorsement. Anyone even passingly familiar with Alabama knows James and the Moore-ons have the same beliefs about God and government. What strikes me is that James won his primary, whereas it sure looks like the Moore-ons are going to lose, and lose badly, next month.

So why the difference? James was running against a country club republican, as are Moore and the clones this time, so I don't think it is the quality of the opponent. Could it be that Alabamians are finally seeing through he rhetoric? We may not all agree that James, Moore and the clones are wrong when they say states should ignore Scotus's rulings on the Constitution, but have we all at least finally accepted that the battle is over and - rightly or wrongly - Alabama has to do what the Supreme Court tells it to do? Perhaps we have all recognized that for the same reason you don't choose a mechanic based on his politics, you should not choose a governor based on her theology. Maybe so. From that same 1998 story:

Karen Cartee, a University of Alabama political communications analyst, described the [1998] campaign as pathetic.

"Once again, Alabama has managed to avoid any of the true issues facing the state and its people -- education, transportation, welfare, health care, you name it," Cartee said.

"We just keep sinking further and further behind other Southern states. The only thing you can say is this whole primary and runoff have been a trivial mess. When you've got the governor of the state debating evolution and the main candidates calling each other monkeys, it is truly a sad state of affairs."

Perhaps the difference between 1998 and today is that Alabamians have wised up. We are now more concerned with the "true issues." Hence, the Moore-ons message is falling flat. And, hopefully, Alabama will rise up because of it.

George Bush: Like A Rock,

Only Dumber.

I saw that this morning on a bumper sticker. On a five series BMW of all things.

Thursday, May 25, 2006

A New Trial?

We just got back from the Batson hearing, and I feel pretty good.

Here's how these things work. Batson prohibits the state from striking jurors because of race. Winning a Batson challenge is a three step process. First, you convince the court that there is a pretty good chance the state is misbehaving. Then the state gets to respond with race-neutral reasons for the strikes. Finally, you say those reasons are b.s. The court then decides whether the race-neutral reasons were the actual cause of the strike. If not, you win.

Our case is an appeal. The trial attorney never even took the first step; he failed to object on Batson grounds. Normally that means you can never, ever, ever, raise that objection, no matter how obvious and harmful the error. However, in a death penalty case, you are allowed to raise on appeal errors to which there was no objection at trial, and the court will grant relief if the error is obvious and harmful. The court in this death penalty case said there was a very good chance that the state was misbehaving. So even though there was no objection, they considered the Batson issue.

What we did today was steps two and three. The Court of Criminal Appeals sent the case back to the trial court so the state would have a chance to explain its strikes. We argued and fussed for an hour or so, but it all boils down to this:

Us: Judge, Juror Jones has a relative who is a cop. He knew the victim in this case. His own son was murdered, and he admitted that he did not think he could put that out of his mind as he heard this case. In short, he was a perfect juror for the state. They struck him because he is black.

The State: No, we struck him because he has a conviction for writing a bad check.

Us: Well, so does Juror Smith, who is white. They did not strike Juror Smith.

The State: Um, er, uh, let me see here, well we were unaware of Juror Smith's conviction.

Us: It happened right here in Dothan, all you had to do was check with the clerk's office. You checked on Juror Jones.

The State: We can't check everyone, we don't have the resources.

Us: So you just investigate the black jurors?

No doubt this guy had the conviction. The question is whether that was the actual reason for the strike. I say no, because another juror had the same conviction. Race was the only difference between the two. I don't buy the ignorance excuse, either. It takes no time or effort to find out whether or not a potential juror has a criminal record. If they were ignorant, it was willful. Also, saying they only investigate some jurors just pushes the problem back. The result, though, is the same. They only investigate blacks, so only blacks get struck for crimes.

So anyway, I'm sure the trial judge will rule against us. We did not make a real good impression on him. But the purpose of the hearing was to get the facts in the record for the Court of Criminal Appeals. They are not known for being fair minded, but this may be one of those cases where they have to rule for the defense. I'll be sure to let you know either way.

Wednesday, May 24, 2006

Light Blogging

Tomorrow. I'll be in Dothan for a Batson hearing. Batson's the case saying you can't strike jurors based on race. In this capital appeal we say the state violated Batson, the state says they did not, and the Court of Criminal Appeals said there is not enough information in the record for them to decide, so go have a hearing on the issue.

Clash Of The Titans

Some land use issues are clear cut. It's easy to tell the good guys from the bad guys. Kelo, for instance. No doubting the wickedness of the local officials who decided to bulldoze a vibrant neighborhood in favor of Big Rich Corporation. Or Jim Naugle the mayor of Ft. Lauderdale, who had this to say about a tax that would help create affordable housing in his city:

"I'm supposed to subsidize some schlock sitting on the sofa and drinking a beer, who won't work more than 40 hours a week?" he asked. "I deny that there is a problem. You can buy condos all day for $160,000. . . . The concept of this ordinance is from each according to his ability, to each according to need, which is the Communist Manifesto."

Maybe he is right on the economics, but he is still a major jackass.

Sometimes, however, you don't know who the good guys are. Take this situation in California:

A San Francisco suburb voted Tuesday to use the power of eminent domain to prevent Wal-Mart Stores Inc. from setting up shop after hearing from dozens of residents opposed to the big-box retailer. . . . The overflow crowd that packed into tiny City Hall cheered after the City Council decision to seize 17 acres where Wal-Mart intended to build a shopping complex. . . .

Some residents and Hercules city officials say the land, which is currently open space, would be better suited for upscale stores that attract affluent shoppers and give the suburb a classy touch. . . . A handful of residents said Wal-Mart could provide a much-needed place to purchase inexpensive goods, particularly for residents who can't drive out of town. "I know I can go there and get a fair price for a good product," said Glenna Phillips, who has lived in Hercules for 26 years.

So it's the Beast of Bentonville v. Hercules. Only Hercules is not the ancient Roman hero, but a bunch of hoity-toity Californians. For whom do you cheer? It's like sitting in front of the tube on a fall afternoon watching the Gators play the Vols: You wish there was some way they could both lose.

Another Thing I Like About Blogging

Is that it forces you to at least try and be consistent. You're putting stuff in print, for people to read, so you ought to try to treat like things alike.

That said, I've struggled with two recent posts. I like the results of each, but I fear I may have embraced conflicting rationales to reach those results.

In one, I approvingly quote a story that probably is an ad hominem attack on Jeff Sessions. In the other post, I disapproved of a story largely because I thought it was an ad-hominem attack against atheists and Intelligent Design opponents; it did no more than state that noted holocaust denier Larry Darby is also an atheist and Intelligent Design opponent. So am I a hypocrite? One who hides petty personal choices behind high sounding principles?

Here is my theory. Ad hominem attacks are sometimes valid. Suppose, for example, the plaintiff calls a witness to the stand in a lawsuit over a car crash. The witness testifies that the defendant ran a red light when he hit the plaintiff. The defendant then wants to tell the jury that the witness frequently and savagely beats her dog.

That is an ad hominem attack on the witness, no doubt. Should it be allowed? No, because it tells us nothing about the facts at issue. It has no apparent relevance to the case.

What if the defendant wants to tell the jury that the witness has been convicted of perjury? Should it be allowed? Well, it's an ad hominem attack, but it also tells us quite a bit about the trustworthiness of the witness.

In my mind, the Darby story is like the first situation. That Darby denies the Holocaust has no apparent relevance to atheism or opposing ID in science classes. Putting the three together, with no argument what-so-ever, was a pure smear job against atheists and ID opponents.

The Sessions story is like the second situation. Sessions has an abysmal history on racial issues. So, when he stands up to 'testify' about the horrors of immigration -legal or illegal - my reaction is consider the source. Because he is who he is, I do not trust anything he says on racial matters. He has no credibility.

That's my justification, anyway.


Thank God For Mississippi. Like Alabama, in days gone by our neighbor to the East (well, eventually it is) West often used the criminal "justice" system to punish people who thought Blacks and Whites ought to be treated equally. As are many people in Alabama, many people in Mississippi are now ashamed of those injustices. After Governor Haley Barbour refused to pardon one such unjustly convicted civil rights worker, Circuit Court Judge Bob Helfrich vacated the conviction. (The whole story is here).

Now Mississippi attorney and racist Richard Barrett wants the judge to withdraw his decision.

Barrett's reasons for trying to block the exoneration could reach far beyond the Kennard case. He feared that actions such as Helfrich's could prompt the state to distance itself from segregationist leaders of the past.

Forrest County stands to lose its name, Barrett said, because its namesake is Confederate Gen. Nathan Bedford Forrest - founder of the Ku Klux Klan.

That would be truly horrible.

Much to his credit, Federal Judge Charles Pickering opposes Barrett, and filed a response to Barrett's motion.

Pickering, whose family has been in Mississippi seven generations, said no one takes more pride in the state's history than he. The former judge said he was trying to correct an injustice.

"People who cannot win on reason and logic try to enflame the emotions of the people," he added. "Richard Barrett has made a career of doing that."

Sore Loser

The Washington Post today has a great article on Alabama's own Jeff Sessions. (H/T Locust Fork News). You need to read the whole thing, but here are some quotes.

Sessions on his Southern heritage:

Alabama's Jeff Sessions sure knows how to nurse a grudge. Talking about his family earlier this year, the Republican senator recalled that "Lincoln killed one of them at Antietam."

Sessions on the current immigration bill:

"This bill is one of the worst pieces of legislation to come before the Senate," he proclaimed at a news conference yesterday, his second on the topic in as many weeks. He paused, unsatisfied with that superlative. "It's the worst piece of legislation to come before the Senate since I've been here."

A stream of epithets about the legislation flowed from his mouth and those of the two conservative scholars he brought with him. "Colossal error . . . absolute scandal . . . budget buster . . . fiscal disaster . . . catastrophe."

Linda Scott of PBS's "NewsHour" pointed out that the Alabama Farmers Federation takes the opposite view.

The senator fired back: "They want cheap labor and they're not considering the interest of the United States of America."

Sessions on the problems of legal immigration:

Forecasting a mass immigration of 73 million to 92 million over the next 20 years [for those keeping score at home, that would be pretty much the entire population of Mexico], Sessions described the process in extraordinary detail: "The nuclear family that we bring in after five years, they become citizens, they bring in their parents. . . . The parents can bring in their parents if they're still alive. They really can. Maybe they're 90. They can bring in others -- their brothers and sisters. The uncles, all the uncles can come in with this through the parents here. And the wife can bring in brothers and sisters and then the wife brings in her brother, who brings in his wife and two children and she brings in her parents. And it just goes on."

And don't forget his sterling history as a humanitarian:

Sessions was one of just nine senators to oppose a ban on torture. He has raised objections about renewing the Voting Rights Act. In the days after Hurricane Katrina, according to Time magazine, Sessions, pushing for repeal of the estate tax, called a former law professor to see if he knew of any business owner who died in the storm.

And if his current fight in the Senate appears unwinnable, Sessions also knows how to turn defeat into victory. He sits on the same Judiciary Committee that in 1986 rejected him for a federal judgeship; opponents at the time cited his labeling of groups such as the NAACP as "un-American" and his prosecution of civil rights activists for voting fraud.

He makes us all so proud.

The Eternal GWOT

Decision of the Day highlights an interesting case from the Second Circuit Court of Appeals. It was two cases consolidated on appeal. Both plaintiffs are internet service providers who received "national security letters" from the FBI. As the court explains,

An NSL is an administrative subpoena that allows the FBI to gain access to, inter alia, "subscriber information . . . or electronic communication transactional records" held by internet service providers, when this information is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities . . . ." 18 U.S.C. §§ 2709(a) & (b)(2).

Initially, the FBI could send an NSA totally on its own; no court had to approve the letter. Also, if you got one you could not tell anyone about it, ever. Not even your lawyer.

Not surprisingly, the plaintiff's challenged the letter on several First and Fourth Amendment theories. Since then the law has changed, so the Second Circuit remanded the cases for re-consideration in light of the changes.

Now for the interesting part. The government still argues that it can permanently ban any speech about the letters. According to their view, if you get one of these letters, you can never tell anyone. Judge Cardamone explains the government's arguments in his dissent. Their rationale is the truly scary part:

The government advanced the "mosaic theory" as one of the reasons to support a permanent ban on speech. That theory envisions thousands of bits and pieces of apparently innocuous information, which when properly assembled create a picture. At bottom the government's assertion is simply that antiterrorism investigations are different from other investigations in that they are derivative of prior or concurrent investigations. Thus, permanent non-disclosure is necessary because, implicitly in the government's view, all terrorism investigations are permanent and unending.

Two things frighten me. First, the mosaic theory means they are operating without any individualized suspicion. They do not have in mind any particular person, place, or threat. They just need all the "apparently innocuous information." That means everyone in the country is a potential subject of the investigation.

Second, the government may not have explicitly reached it in this case, but here is the logical outcome of their assertions: We can "suspend" your rights while we fight terror. We will be fighting terror forever. Therefore, we can suspend your rights forever.

Too bad Alabama does not currently have anyone to fight for our rights as did our own Justice Hugo Black, who Judge Cardamone quotes:

As Justice Black wrote in New York Times Co. v. United States, 403 U.S. 713 (1971): "The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."

Death Penalty Appeals

The B'Ham news recently interviewed the guber candidates (the state sanctioned ones anyway) about their views on sentencing, including capital sentencing. More than one blogger has already pointed out how homogeneous the answers were. I am only going to comment on Roy Moore's opinion about the appellate process in death penalty cases:

"I don't think there are too many avenues of appeal; I think there are too many frivolous appeals. I think sometimes these appeals are frivolous and should be ruled on very quickly. There are some on death row right now (that) we tried when I was an attorney, and that was a long time ago."

I agree with him that in the average death penalty appellate brief, the majority of the issues presented are frivolous. By frivolous, I mean the attorney who presents them knows they have little to no chance of success. What I want to do is explain why we present frivolous issues on appeal.

There are lots of reasons not to present weak issues. They distract the court from the strong issues. They undercut the attorney's credibility. They waste the court's time, and as an officer of the court the attorney ought not waste the court's time. They use up the attorney's time and pages, resources the attorney could better use on the strong issues. So, in a civil case, or a non-capital criminal case, good appellate attorneys will cut out the weak issues in favor of two or three strong ones.

But death, as they say, is different. Your client is going to lose much more than just money, or freedom. He is going to lose his life. Hence, when an issue is borderline, you'll err on the side of inclusion. That is not all. Issues not presented in the first brief are forever waived. You want to preserve every possible argument. You never know when Scotus may do something crazy, suddenly making what was a weak issue strong. So you throw them all in, hoping the law may change during the appeal.

There is also the bigger picture. Maybe you don't oppose the death penalty itself, but you think it ought to be used very carefully. So you force the appellate courts to sift through every possible error, ensuring that the process was fair. Doing so also increases the costs to the state, giving them reason to refrain from bringing capital charges unless the crime truly deserves it.

And I should be honest, sometimes the goal is simply to keep the client alive as long as possible. You, the attorney, were not there when the crime occurred. Probably you did not represent the client at trial, so your knowledge of that comes from the record. You do know the client, you've sat with him in jail, talked to him, shook his hand. You've met his family, heard them cry. You look at this guy and think, but for the grace of God. You realize he has no shot at winning the appeal, but you want these folks to have some hope. Manipulating the system? Sure. Excusable? You decide.

Tuesday, May 23, 2006

Atheism, Materialism Make You Stupid, Evil

That seems to be the point of this post on Evolution News and Views. The subject is Larry Darby and his opposition to Alabama's attempts to introduce ID into science classes.

As for Alabama's attempted 'Academic Freedom' bills, I've commented on them here. Darby, as we all know by now, is the holocaust denying wacko running as a Democrat for A.G.

The post describes Darby:

Increased attention has been paid to Mr. Darby because of his campaign to become Attorney General of Alabama. Most of the spotlight has been on his outrageous views about the Holocaust. According to "Candidate: Holocaust didn't happen" (by Jay Reeves [Associated Press], Montgomery Advertiser, May 13, 2006), Mr. Darby apparently claims that only 140,000 Jews died in the Holocaust, and that most of those deaths resulted from typhus. This is Holocaust denial in all its ugly un-glory. Previously, Mr. Darby had made national headlines for calling AL Governor Bob Riley's prayer meetings "Christian terrorism."

The very next sentence states:

But through it all, Mr. Darby's die-hard commitment to philosophical materialism has made him one of the fiercest critics of Alabama's Academic Freedom Act. "Science deals with materialism," he reportedly said at that 2004 House Committee hearing.

Although the Alabama Academic Freedom Bill does not mandate or call for the teaching of the theory of intelligent design, Mr. Darby has been a staunch critic of ID all along. He has been a featured speaker and participant at events sponsored by the "Atheist Alliance" that included emphatic denunciations of ID. Most interesting is Mr. Darby's appearance at the Alabama "Rally for Reason," alongside Jeffrey Selman. The rally was sponsored by the Atheist Law Center, of which Mr. Darby is apparently past-president.

So what does the first quote have to do with the second? Is Evolution News & Views telling us that holocaust denial, atheism and opposition to teaching ID are morally and intellectually equivalent? Or that the three are inherently related? Or both? Your guess is as good as mine.

The post never explains how the three are related. All it tells us is that one guy happens to hold to all three positions. From that, I suppose, we are to infer that the three are somehow causally connected.

But that a person holds two ideas simultaneously does not necessarily mean those ideas are related at all, never mind causally related. Darby, for example, in addition to denying the holocaust wants to put National Guard Troops on the border to control immigration. Does that necessarily mean that if you want troops on the border you are also a holocaust denier? Darby also probably believes two and two equals four. Does that mean holocaust denial has anything to do with basic math?

Besides, in practice I'm sure about 99.9% of atheists and ID opponents would strongly condemn Darby for his holocaust denial. Evolution News & Views ought to be ashamed of itself for so irresponsibly trying to tar people who disagree with its views on creation. At the least, they could have tried to support the charges with some arguments.

A Proposed Solution

To the immigration and homosexual problems. I got the idea here. To make everyone happy, we let immigrants and homosexuals live in this country, but also make the following additions (in bold) and alterations (strikes through the original language) to the constitution:

The Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare of Conservative Christian Straight White American Males (CCSWAM) , and secure the Blessings of Liberty to ourselves CCSWAM and our CCSWAM’s CCSWAM Posterity, do ordain and establish this Constitution for the United States of America.

Article I, § 2:

Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons CCSWAM, . . . , three fifths of all other Persons. homosexuals and immigrants.

Article I, § 8:

The Congress shall have Power . . . to protect the sanctity of marriage by illegalizing homersexual relations, and to protect us from foreigners by building a thirty foot high wall along our borders, topped with razor wire. And a moat also. With alligators in it..

Article III, § 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. which a majority of CCSWAM agree to let the court hear, provided that those states or individual CCSWAM who don't like the result do not have to follow it.

Article IV, § 2

No Person held to Service or Labour homosexual or immigrant deprived of rights in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation or court decision therein, be discharged from such Service or Labour, granted any rights but shall be delivered up on Claim of the Party to whom such Service or Labour may be due remain a legal non-person.

Article V

no Amendment which may be made prior to the Year One thousand eight hundred and eight the rapture (after that all CCSWAM will be gone, so who cares what the rest of you do) shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article grant any rights to immigrants or homosexuals and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. Unless it tries to grant rights to immigrants or homosexuals.

Anyway, those are some suggestions.

No Returns

According to this story, earlier this month, a couple visited an "adult toy store" in Decatur, "stealing enhancement pills and a 'king size' rubber sex toy resembling a part of the male anatomy." A few weeks later, local police caught the bandits.

[The cops] found the lifelike, 9-inch toy stolen three weeks earlier. The $50 device was no longer in its package, said Detective George Silvestri.

"Well, we kind of recovered the stolen property," said [a detective]. "But basically, the store manager declined taking it back."

Gee, why wouldn't he take it back?

Btw, selling "adult toys" is a crime in Alabama. Alabama Code 13A-12-200.2 states in part:

It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.

Roy Moore To Scotus: Abortion Violates Equal Protection Clause

A major hat tip to Lee at Bama Blog (he is going to get my reporter of the year award) for this story. Roy Moore has filed an Amicus Brief in the Scotus case of Gonzales v. Carhart. That case is about the federal partial birth abortion act. So far both the district court and the 8th Circuit Court of Appeals have held it unconstitutional because it does not contain an exception for the health of the mother. Moore, as you might guess, is arguing that the act is constitutional. Not only that, he also argues that abortion violates the Fourteenth Amendment. According to Moore, every state is constitutionally required to prohibit the abortion of post-twenty week fetuses.

The brief begins by stating the obvious:

the words of this Constitution and the solemn oath thereto are still relevant today and should control, above all other competing powers and influences, the decisions of federal courts.

No doubt. The problem is defining those words and then applying the definitions to particular cases.

The problem is illustrated by Moore's brief in this case. Moore's argument will rely on the Equal Protection Clause of the Fourteenth Amendment, which states:

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

So does "person" include a fetus still developing in a woman's womb? Good luck finding an answer in "the words of this Constitution." In fact, Moore's brief does not find the answer in the Constitution, rather relying on state laws like Alabama's that declare a fetus a person for purposes of homicide prosecutions, and also on a quote from William Blackstone. But other textual and non-textual sources indicate a fetus is not a person. The same question arose in Roe v. Wade, this is the Court's response:

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3; 53 in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54 [410 U.S. 113, 158]

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn. 55 This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v. Dickinson, 28 [410 U.S. 113, 159] Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.

The point here is not that a fetus is (or is not) a person. The point is that constitutional decision making is more complicated than Moore wants us to believe. Deciding what the text means and how to apply it involves extra-textual sources. Cases making these decisions then guide future cases. That way Scotus does not have to re-invent the wheel with every case or controversy. Which is exactly what Moore's brief does in this case. As the quote from Roe indicates, that 'person' does not include the unborn is already settled law. Scotus has already heard both sides of the issue and settled on a meaning. Moore's argument is a re-tread.

Anyway, leaving aside methodological truisms, we get to the heart of Moore's argument.

because the persons subjected to the procedure of partial-birth abortion are living human beings, the states are denying the fetuses equal protection of the law under the Fourteenth Amendment by failing to protect them in the same manner the states protect other living human beings.

I do not think he is arguing that the constitutional duty to protect begins at conception. The brief goes on to state that 20 week old fetuses "are virtually the same as newborn infants." It makes no mention of anything younger. So, apparently, the duty arises at 20 weeks.

Now, the brief only argues that the Constitutional duty empowers Congress "to remedy this 'oppression of inequality' against these living human beings." But if Moore is correct - if beginning at 20 weeks fetuses are persons entitled by the Fourteenth Amendment to equal protection under the laws - then there is no need for federal legislation. The constitution itself would prohibit abortions of those fetuses. So long as states prohibit killing born children, they would also have to prohibit aborting fetuses after those fetuses reach 20 weeks.

Whatever you think about the persuasiveness of the argument, I think two things are true. First, it is nothing new. Scotus rejected it in Roe. Second, it's probably bad politics. I think many people would be fine with getting rid of Roe provided that left the issue to the states. Moore's argument, however, would largely take the states out of the equation. As does Roe it would take a debatable issue off the floor and impose an absolute rule. If that is the alternative, I think many moderate Roe opponents would become Roe supporters.

Monday, May 22, 2006

An Update

To the previous post.

First, ACS Blog has some comments made by Prof. Geoffrey Stone about criminalizing the publication of classified information. An excerpt:

Should the United States criminally punish the press for publishing classified information? This inquiry poses a prospect unprecedented in American history. For more than 215 years, the United States has managed to flourish in the absence of any federal legislation directly prohibiting the press from publishing government secrets. The absence of such legislation is no accident. It clearly fulfills the promise of the First Amendment: "Congress shall make no law . . . abridging the freedom . . . of the press." . . .

Would it be good public policy to enact such a law? On balance, I think not. Once again, I return to the lessons of history. Even if such a law is constitutional, it is neither necessary nor wise. In more than two centuries of experience, the problem addressed by this "law" [i.e. publishing a secret actually causing harm to the country] has never actually arisen. This would be a law in search of a problem. This is never a sound basis for legislation, and certainly not when dealing with a freedom as precious as the freedom of the press.

Second, those noted anti-american liberals at the Cato Institute have a new report on Dubya's constitutional record. (H/T Talk Left). When you are deciding whether or not to entrust your freedom to King George, keep the report in mind:

With five years of the Bush administration behind us, we have more than enough evidence to make an assessment about the president’s commitment to our fundamental legal charter. Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes

• a federal government empowered to regulate core political speech—and restrict it
greatly when it counts the most: in the days before a federal election;

• a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;

• a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as “enemy combatants,” strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror—in other words, perhaps forever; and

• a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush’s constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.

Be Afraid

First, from a propaganda piece in Sundays B'ham News:

Assorted critics, taking a break from castigating the Bush administration for doing too little to protect the homeland, are now castigating it for doing too much. How dare the NSA receive without benefit of a court order telephone logs from AT&T, BellSouth and Verizon? Even though the records were anonymous and did not include the contents of any calls (Verizon and BellSouth have now denied offering any information at all), hyperventilating worrywarts fret that fascism has descended.

Second, from CNN today:

Attorney General Alberto Gonzales said Sunday he believes journalists can be prosecuted for publishing classified information, citing an obligation to national security. . . ." It can't be the case that [the right to freedom of the press] trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity," Gonzales said.

So, would a country where the government prosecutes as criminals news papers that publish unfavorable stories be more like a democracy? Or a fascist state, a state "marked by centralization of authority under a dictator, stringent socioeconomic controls, suppression of the opposition through terror and censorship, and typically a policy of belligerent nationalism and racism?" In your answer, be sure to account for the following quote from Thomas Jefferson:

The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.

Sure they say the prosecutions would only be for publishing stuff that threatens national security, but think about how well the administration has evaluated previous threats. For example, "The Bush administration periodically put the USA on high alert for terrorist attacks even though then-Homeland Security chief Tom Ridge argued there was only flimsy evidence to justify raising the threat level, Ridge now says." The FBI considers peace activists to be threats to national security. If you criticize the president, you might be a traitor. Finally, here is Dubya himself on how well the administration evaluated the threat posed by Iraq: "It is true that many nations believed that Saddam had weapons of mass destruction. But much of the intelligence turned out to be wrong."

But, hey, Iraq has worked out fine anyway. So who cares if the administration similarly evaluates the threat posed by newspapers. We can trust them with the power to censor the press. They are honest and competent. And every subsequent administration will also be trustworthy, right? I mean, even if HRC wins in '08, we can feel safe. We have nothing to fear. This is the government, they know what is best, and most importantly, they are here to help.

Summit Medical Center

Lee at Bama Blog has collected the news and offers his opinion here, here, here, here, and here. Kathy at B'Ham blues comments here. Poser's take is here.

Long story short, non-Doctors at said clinic told a patient she was six weeks pregnant and then gave her an abortion-inducing drug. Less than a week later, the woman gave birth to a six pound four ounce stillborn child. While this is the most tragic incident, the investigation of it has uncovered plenty of other problems.

All I'll say now is that, contrary to the assertions of some bloggers, what occured at Summitt was almost certainly a felony.

Here, from Stenberg v. Carhart, is the general constitutional framework (internal citations omitted):

We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution's guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. . . . We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.

Three established principles determine the issue before us. . . . First, before “viability the woman has a right to choose to terminate her pregnancy.” . . . .

Second, “a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability” is unconstitutional. . . . An “undue burden is . . . shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” . . . .

Third, “ ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’"

In accord with the constitution, Alabama has chosen to proscribe post-viability abortions. Section 26-22-3 of the Alabama Code states:

no person shall intentionally, knowingly, or recklessly perform or induce an abortion when the unborn child is viable.

Doing so is a Class A felony, unless:

[The] abortion is performed by a physician and that physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.

So, it appears that someone at Summitt has committed a felony. A non-Doctor performed the abortion, so the exception does not apply. Viability seems to be a given. To satisy the mental element of the statute ("intentionally, knowingly or recklessly") whoever provided the drug must have had some idea that the fetus was viable, or else whoever provided the drug ignored procedures that would have provided that knowledge. In my mind, the only way anyone could have 'mistaken' a fully grown baby for a six week old fetus is if they ignored procedures or else just did not care. In other words, if they acted "intentionally knowingly or recklessly."

The question is going to be how many people were involved? Was this just some assistant? Or was their a conspiracy with the Docs? Perhaps trying to evade the requirements of Section 26-22-3? I'm sure we will find the answer to these questions, and much more, as the investigation (during an election year) continues.

Sorry For The Lack Of Posts

This weekend, but I could not bring myself to look at either the news or my computer. Great food, two outstanding rides - road and mountain -, Do Dah Day, fantastic meals, naps, several hours by the pool reading "Marley and Me," time with friends: It was like a vacation in my own neighborhood.

Anyway, the news looks promising this morning, so I'm sure to be back at full strength today.

Friday, May 19, 2006

Nall Campaign Update

From Hammer of Truth:

Sorry for not blogging anything today, but we've got a serious problem going on in Birmingham with the Loretta Nall ballot access drive in Alabama. The police are now demanding IDs and telling our petitioners they can't collect signatures on public property (in this case, a sidewalk on a state university campus). We are going to talk to the police right now and see if we can sort this out.

All I know is what you just read. And this:

There is no doubt that as a general matter peaceful picketing and leafletting are expressive activities involving speech protected by the First Amendment. . . . It is also true that public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public forums. In such places, the government's ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

The Supreme Court decision from which this quote is taken - U.S. v. Grace - held that the sidewalks abutting the Supreme Court building were public places and that a statute prohibiting "signs, banners or devices" on those sidewalks was unconstitutional.

UAB's sidewalks, like those at issue in Grace, "are indistinguishable from other public sidewalks in the city that are normally open to the conduct that is at issue here." So, unless the city comes up with a better excuse than did the government in Grace, the result ought to be the same in this situation.

"Hi, There, Energy Eaters"

Have you ever seen the Simpson's episode where the kids take a class trip to the power plant? They watch a cartoon about nuclear energy, in which Smilin' Joe Fission explains why nuclear energy is everyone's friend. Sure, it produces some nasty left overs, but as Smilin' Joe explains while sweeping the waste under a carpet, we can "just put it where nobody'll find it for a million years."

With that in mind, watch the new ExxonMobil commercial, the theme of which is: "Carbon Dioxide - They Call It Pollution, We Call It Life."

For a hilarious re-working of the commercial, go here. For the facts, go here, and here.

Major Thanks To Hammer Of Truth

For leading me to Jeremiah Bullfrog's explanation of why Brokeback Mountain means we need a federal anti-gay marriage amendment:

I was a fixin ta' git out the throwin stars and tear up that DVD, but I got sucked into the plot dangit! How cum that thar hunky feller wouldnt run away with that thar purty one? How could that wife jez let 'im go up to that mountain after knowin they wuz a sparkin? At the end I cried a little bit, but jez cauze that thar purty girl got left...

That thar movie jez proves that GW and his buddies need ta cum up with some way to illegalize gay marriage. Look at how sad everbody wuz in that movie! People's a' cryin and a' hollerin and fallin on each other...

You wanna know if you is able ta' marry ask James Dobson. He's the one that makes the call on stuff like that...

That is the funniest blog I have read in a while, maybe ever. For certain a new daily read. If you need another example, consider Mr. Bullfrog's explanation of why we must pre-emptively strike Mexico:

Because only three things keep Mexico from possessing one of them thar NUCULAR BOMBS!:

1) 25-50 years of intense research and plutonium accumulation,
2) 500 billion dollars, and,
3) a team of top-notch nuclear scientists that hate freedom and want to destroy GW...

Imagine that! Nukes in our hemisphere! Hell Naw!

Jes' Like when the dog tries to make it with the cat....You just gotta put a stop to it, no matter how hard that ol' dog just humps and is a abomination dangit!

Its good to know that GW is out there, findin problems before they start and puttin a end to 'em so's we dont even know they is there...pre-emptively

Just go read it, it's awesome.

The Daily Strikes Again

It lacks the fireworks of their other interviews with Alabama judicial candidates, but the Decatur Daily has an interesting story on Mark Anderson, a Republican candidate for the Court of Civil Appeals. Two things.

First, like everyone else, he distances himself from the Moore-ons.

Referring to the high-profile duel between Justice Tom Parker and Chief Justice Drayton Nabers, he said judges are bound by an oath to follow precedents of higher courts, even if those precedents are poorly decided. . . .

An op-ed piece written by Parker in January criticized the state Supreme Court for abiding by a U.S. Supreme Court decision that declared the execution of minors to violate the U.S. Constitution.

Like Parker, Anderson said the U.S. Supreme Court case was poorly decided. Unlike Parker, Anderson said ignoring the precedent was not an option.

Mini-Moore likes to say his oath is to the Constitution, not to the Supreme Court Justices who interpret it. Hence, loyalty to his oath means disobeying those Justices when they "wrongly" interpret the Constitution. His words:

a judge takes an oath to support the constitution -- not to automatically follow activist justices who believe their own devolving standards of decency trump the text of the constitution. Thus, faithful adherence to the judicial oath requires resistance to such activism

That argument sounds a lot like Martin Luther at the Diet of Worms:

"Unless I am convicted by Scripture and plain reason—I do not accept the authority of popes and councils, for they have contradicted each other—my conscience is captive to the Word of God. I cannot and will not recant anything, for to go against conscience is neither right nor safe."

Now, whatever you think about the persuasiveness of Luther's belief that Scripture trumps Papal authority, you have to recognize that it has not worked out so well for Christian unity. Just count the number of different protestant churches you pass on the way to work. Sola Scriptura may be great in theory, but it's terrible in practice.

If we decide to follow Mini-Moore, we will end up just like the protestant church. Like the Bible, the Constitution is often vague and ambiguous. Applying it to today's world is tricky. No two people are going to read it in the same way. Hence, if the rule is Sola Constitution, every person will be a law unto herself. To avoid this, someone has to have the final interpretive authority. That someone is the United States Supreme Court.

The second interesting point from the story is this:

Anderson said left-leaning judges for years distorted law to arrive at pre-ordained results, and he fears the same is happening again, this time by right-leaning judges.

"Neither side should control the court. Lately things have smacked of activism from the right rather than activism from the left," Anderson said. "Neither is acceptable."

All most people see are the headline cases about abortion, or capital punishment. But in the normal day to day cases the situation is very different. State or federal, any appellate court hearing a criminal case is not asking which side is correct, it is asking how it can most easily rule in favor of the state. The civil side is not much better for plaintiffs. This has been the case for some time now, it's just nice to hear a Republican judge admit it.

Safe Legal And Rare

Not in this case:

State health officials on Wednesday shut down a Birmingham abortion clinic after investigating a complaint that a woman was told she was six weeks pregnant and was given an abortion-inducing drug, then delivered a 6-pound, 4-ounce stillborn child at a hospital.

The rest of the story only gets worse. God, that poor woman.

Thursday, May 18, 2006

No We're Not Racists!

In case you missed it, here is a World Nut Daily columnist on Monday, predicting Dubya's immigration speech:

he will be lying, again, just as he lied when he said: "Massive deportation of the people here is unrealistic it's just not going to work."

Not only will it work, but one can easily estimate how long it would take. If it took the Germans less than four years to rid themselves of 6 million Jews, many of whom spoke German and were fully integrated into German society, it couldn't possibly take more than eight years to deport 12 million illegal aliens, many of whom don't speak English and are not integrated into American society.

But today, the column is missing that language. Jesus' General has the full report. As for the author of the column, he has this to say:

The ludicrous accusations of my desire to round up and deport illegals, much less massacre them, serve very well to demonstrate how many bloggers leap at the chance to indulge in hysterics and moral preening. They demand an apology? They'll receive nothing but well-deserved contempt.

Right. Turning to the holocaust as inspiration for an immigration policy in no way suggests you want to 'round up and deport illegals.' How silly of us.

Road Construction

Some serious allegations from the Libertarians in a press release today:

Gov. Riley will celebrate opening the last section of US280, completing four lanes from Birmingham to the GA line.

I doubt he’ll make any comment about those made homeless and otherwise damaged by misuse of eminent domain by the State of Alabama. While cases of this sort of abuse by the State Lands Division against mostly black and poor white citizens of our state were more publicized – similar abuse by ALDOT is lesser known because of the efforts of Bob Riley and friends.

Instances of this abuse took place on US280 in Congressman Riley’s district, yet he did nothing to defend civil rights of property owners impacted by this federal highway project. Specifically, owners were kicked out of their homes before they were paid (still holding legal title to their property) so that others could live in their house while owners were homeless. At least one case is still ongoing in the courts almost a decade later – no surprise given ALDOT’s history of such great disregard for civil rights.

When asked to stop this abuse, then Congressman Riley’s responded by saying, “You know the road is coming – get out of the way.” Mr. Riley may be wealthy enough to let others live his home without compensation waiting to finally be paid – but most Alabamians are not.

I don't know if any of this is accurate, but if so it would certainly be outrageous. I post it, though, because it brings to mind a related problem: The poor folks whose houses are next to the right-of-way. While their homes do not get bulldozed, that means there is no taking. Because there is no taking, the state does not have to compensate them for the noise and pollution they get to enjoy when the road opens. They end up with the worst of all worlds: Home ruined and no compensation.

If you pay attention, you see this all the time. I think I notice it more than most because cycling provides a much better view of the world than does driving. Anyway, if you want examples of this problem in the making you could start with the intersection of Old Leeds and the new Grant's Mill. Other new spots in B'ham include where Corridor X/I-22 crosses Coalburgh Road. To see the accomplished damage, get off 20/59 some time and drive through the adjoining "bad" neighborhoods, taking in the fumes and rumblings of the highway, and counting how many homes have the interstate for a backyard.

I would love to see a statute providing some type of compensation to these folks. Destroying someone's home so I can get to my destination five minutes sooner does not seem like a very fair trade.