Law

Quotes Suitable for Framing: The Ox-bow Incident

 

 

My dear Wife, Mr. Davies will tell you what’s happening here tonight. He’s a good man and has done everything he can for me. I suppose there are some other good men here, too, only they don’t seem to realize what they’re doing. They’re the ones I feel sorry for. ‘Cause it’ll be over for me in a little while, but they’ll have to go on remembering for the rest of their lives. A man just naturally can’t take the law into his own hands and hang people without hurtin’ everybody in the world, ’cause then he’s just not breaking one law but all laws. Law is a lot more than words you put in a book, or judges or lawyers or sheriffs you hire to carry it out. It’s everything people ever have found out about justice and what’s right and wrong. It’s the very conscience of humanity. There can’t be any such thing as civilization unless people have a conscience, because if people touch God anywhere, where is it except through their conscience? And what is anybody’s conscience except a little piece of the conscience of all men that ever lived? I guess that’s all I’ve got to say except kiss the babies for me and God bless you. Your husband, Donald.

The Ox-Bow Incident (1940)-Walter Van Tilburg Clark

Massachusetts Abortion Clinic Bubble Zone Law Struck Down

 

 

Today a unanimous Supreme Court, in MCCULLEN ET AL. v. COAKLEY, ATTORNEY GENERAL OF MASSACHUSETTS, struck down the Massachusetts “Bubble Zone” law, keeping pro-life protestors  35 feet away from abortion clinics, as a violation of the First Amendment.  That is a good thing.  The bad thing is that it was authored by Chief Justice John Roberts, and I will let Justice Scalia explain what a limited victory for the pro-life cause this is, and what a disappointment it is that the Chief Justice wrote it.

 

JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgment.

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).

The second half of the Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion-speech edition of the First Amendment . But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily-or at least unnecessarily insofar as legal analysis is concerned.

I disagree with the Court’s dicta (Part III) and hence see no reason to opine on its holding (Part IV). →']);" class="more-link">Continue reading

Inter Arma Enim Silent Leges

In times of war the laws fall silent.  That is from the Latin maxim Inter Arma Enim Silent Leges.  A  study of history reveals just how true that is, and Justice Scalia reminds us of that fact:

U.S. Supreme Court Justice Antonin Scalia told law students at the University of Hawaii law school Monday that the nation’s highest court was wrong to uphold the internment of Japa­nese-Americans during World War II but that he wouldn’t be surprised if the court issued a similar ruling during a future conflict.

Scalia was responding to a question about the court’s 1944 decision in Kore­ma­tsu v. United States, which upheld the convictions of Gordon Hira­ba­ya­shi and Fred Kore­ma­tsu for violating an order to report to an internment camp.

“Well, of course, Kore­ma­tsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again,” Scalia told students and faculty during a lunchtime question-and-answer session.

Scalia cited a Latin expression meaning “In times of war, the laws fall silent.”

“That’s what was going on — the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification but it is the reality,” he said.

Avi Soifer, the law school’s dean, said he believed Scalia was suggesting people always have to be vigilant and that the law alone can’t be trusted to provide protection.

Go here to read the rest.

Internment camps were set up after Pearl Harbor during the invasion scare.  Several thousand Italian-Americans and eleven thousand German Americans were interned during the war, but these were individuals who were picked up because investigations indicated that they could be a domestic threat.  The west coast  Japanese were simply scooped up with no individual investigations.  J. Edgar Hoover, head of the FBI, opposed the internment of the Japanese, regarding it as completely unnecessary, but his views sadly were ignored.  About 120,000 Japanese -Americans were interned during the war, the vast majority loyal Americans.

The Supreme Court upheld the constitutionality of the internment in the case of Korematsu v. United States.  The vote was 6-3.  Six out of the eight Supreme Court Justices appointed by FDR voted to affirm the constitutionality of the internment.  The lone Republican on the court, Justice Owen Roberts, wrote a dissent which deserves to be remembered.  It begins simply and directly:

I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

This is not a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States,  320  U.S. 81, 63 S.Ct. 1375,  [323  U.S. 214, 226] nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated. →']);" class="more-link">Continue reading

Demons Have Grievances Too

Demon Grievance

 

In Hell there will be nothing but law and due process will be meticulously observed.

Grant Gilmore

Dear Satan,

It is with great animosity that I file this official complaint regarding my recent assignment to possess a high school student at Blessed Karl Rahner Catholic Community.  As you are well aware I am a very junior demon and this was my first possession assignment outside of Hell. The training I received from senior demons in preparation for this assignment did not prepare me in the least for what I experienced. From what I was told, I would be sent into the world to fight the forces of good and score a victory for the powers of Hell. Instead I myself was exposed to a Hell I have heretofore never experienced.

As you are aware, as a junior demon I have been assigned to the more shallow circles of Hell and my contract explicitly states I am not to be exposed to anything approaching the 5th circle or greater. As you will see my experience during this possession rates at least an 8th, if not 9th circle level of torment.  I have included a statement of what transpired below as evidence of my claims.

In addition, I am petitioning for compensation.  I want to be assigned for at least six weeks to demon corps seven, which is assigned to tempt Catholic politicians. As you know the demons in this corps do practically nothing since it is impossible to tempt people who have no conscience. This will give me adequate time to recover from my traumatic possession experience inflicted by the negligence of those senior demons who failed to properly prepare me. Thank you for your consideration of this request.

Demonically,

Anibalus ']);" class="more-link">Continue reading

April 24, 1863: Promulgation of the Lieber Code

Art. 43. Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of postliminy, no belligerent lien or claim of service.

Francis Lieber led a colorful life.  Born in Berlin in 1798, he enlisted in the Prussian Army in 1815 and was wounded at Waterloo.  Unable to attend a university in Berlin due to his membership in a Liberal group that opposed the Prussian monarchy, he attended Jena University and, a brilliant student, completed his dissertation on mathematics in four months in 1820.  He took time out from his academic career to fight in the Greek War of Independence in which he was severely wounded.  He served as a tutor for the son of the Prussian ambassador in Rome for a year and wrote a book about his experiences in Greece.  Receiving a royal pardon, he returned to Prussia only to run afoul of the authorities again for his Republican beliefs.  Imprisoned, he took advantage of the time to do what any good Romantic of his generation would do, he wrote a book of poetry, Songs of Wine and Bliss.

After his release he fled to England, where he supported himself by acting as a tutor.  Meeting his future wife and marrying her, the Liebers left the Old World to start a new life in the New World in 1827.  There Lieber embarked on an academic career.  In Boston he achieved notoriety for opening a school which gave instruction in swimming, a first in America.  He edited a 13 volume Encyclopedia Americana.  From 1833-1835 he resided in Philadelphia while preparing a plan of education for Girard College.  In 1835 he began a sojourn of 21 years duration at the University of South Carolina teaching history and political economics.  He retained an interest in Germany, and returned for a few months after the revolution of 1848 although his hopes that Germany would take the Liberal path he favored were quickly dashed.

From 1856-1865 he was professor of history and political science at Columbia.  In 1860 he was also appointed a professor of political science at the law school at Columbia, a post he would hold until his death in 1872.

The coming of the Civil War tragically divided Lieber’s family, just as it divided the nation.  One of his sons fought and died for the Confederacy, while his other two sons fought for the Union.  Lieber himself was a staunch advocate of the Union and an opponent of slavery.  He founded and headed the Loyal Publication Society that wrote scholarly pro-Union propaganda during the War.  He first met Lincoln at the White House in 1861 to confer upon him an honorary degree from Columbia.  Thereafter he was called to Washington frequently to consult with Lincoln, Stanton and Seward on questions of international law.

During his academic career Lieber had written many books and articles on law, politics and history that had given him an international reputation.  It is therefore not surprising that Lincoln turned to Lieber to draft a code of Law to govern the Union forces during war-time.  The Code was promulgated in General Order 100 on April 24, 1863. →']);" class="more-link">Continue reading

The Fear of God and the Law

The fear of the Lord is the beginning of wisdom: and the knowledge of the holy is prudence.

Proverbs 9:10

 

Traditionally in English criminal indictments this formula was used “not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil”.  This of course contained a great truth that used to be embodied in Western jurisprudence, that human laws could do only so much to prevent evil and that the eternal battle waged in every human heart and mind between good and evil was the true determinant of whether men would commit terrible acts against, not merely the momentary statutes of Man, but the eternal Law of God, as partially represented in the Ten Commandments given to humanity by God on Mount Sinai.

In the wake of the appalling evil of the murder of the innocents at the elementary school in Newtown, Connecticut yesterday, there are cries for legislation, usually from advocates of gun control, to purportedly aid in preventing this type of tragedy from happening again.  There is also, inevitably, endless commentary.  One piece of commentary I found striking was that by John Podhoretz at Commentary:

 

The connection between the protection of children and the practice of monotheism dates back to the beginning. After Abraham becomes the first Jew, the first monotheist, he is tasked by God to sacrifice his beloved son Isaac, the miracle child of his and his wife Sarah’s old age, and he takes up the task without complaint until God stays his hand. The story of Isaac’s binding, the akedah, is one of the most challenging of the Bible and is often taken to mean God was testing Abraham’s faith with the ultimate demand. But one might also say that at the very dawn of the worship of the One God, the Bible was placing the sacrifice of children outside the realm of the thinkable for the first time.

The idea that civilization is dedicated to the protection and preservation of the weak and the innocent, and not about fulfilling evil impulses to defile and destroy innocence, is the root and core of the West. One cannot conceive of anything more monstrous than a person or persons who could look small children in the eye and systematically shoot them dead. Which is why this crime, among the worst crimes in American history, is not just an assault on the children, or their families, or the town of Newtown—though it is all those things.

What the killer(s) did today was nothing less than a contemporary sacrifice to Moloch, in whatever form Moloch manifests himself today—the appeasement of a voice in the head, most likely. Evil, even if it is loosed due to mental illness, is an effort to destroy the common good by making good appear powerless, ineffectual, weak. Today saw a horrifically effective effort to give evil a victory. It has opened a portal and brought Hell to earth.

Gehenna is real again. ']);" class="more-link">Continue reading

The Declaration of Independence as Law

Debates sometimes arise as to whether the Declaration of Independence is law. The Declaration isn’t law as a law saying go on green and stop on red is, although it is set forth under the United States Code.  It is much more important than that.  It is one of the essential building blocks of what we as a people believe.  It has been held to be such in numerous decisions of the United States Supreme Court and I cite one of them below: →']);" class="more-link">Continue reading

So You Want to Do Criminal Defense Work

 

 

As long time readers of this blog know I am an attorney, for my sins no doubt.  Although the bulk of my practice is civil, over the years I have defended hundreds of defendants accused of crimes, mostly felonies.  This is part of my ongoing series about the life of a lawyer.  For people who have not heeded my warnings about the profession and want to become attorneys, here are some tips regarding criminal defense work:

10.   Guilty, Guilty, Guilty!-  Contrary to what you may have gleaned from television, movies and novels, almost all of your clients will be as guilty as mortal sin.  However, there is a difference between actual guilt and what the State has the burden of proving at trial.

9.     Clients lie-  People accused of crimes will sometimes be forthright with their defense counsel, but frequently they will lie.  This can be a dangerous handicap at trial, especially since an attorney has an ethical duty not to knowingly have his client commit perjury.  Sometimes the best thing any defense attorney can do is to rip to shreds a client’s lies in an interview prior to trial and advise them that what you have just done is merely a foretaste of what they will receive in cross-examination from the prosecutor.

8.     Cops lie- Not all cops by any means, but enough so that a defense attorney will treat police reports with the scepticism of a priest listening to a politician’s confession and not hearing the sin of lying brought up.  An example of this is the videotaping of field sobriety tests.  It was assumed in Illinois that this technological development would lead to more DUI convictions.  After all, cops arresting people for DUI would routinely report that the person arrested had badly failed the field sobriety test.  Instead, it has been a boon for defense attorneys, since the videotape evidence is often at variance with what the police initially report after the arrest.

7.      Witnesses can surprise you-Last year I was defending an individual where a witness identification of my client was a significant factor.  At the bench trial the State produced a witness to identify my client.  The witness took a look at my client from the stand and said he could not be sure as to his identification.  That took both the State and my client by surprise.  Never assume that either your witnesses or the State’s will not give you both good and bad surprises.

6.       Motion to suppress-Remember your constitutional law course?  It wasn’t a complete waste of time after all!  I enjoyed constitutional law in law school, and it is extremely useful on motions to suppress, as Supreme Court cases on fairly fine distinctions of constitutional law come in very handy in determining whether evidence is admissible or not.  It is often advisable to do a motion to suppress even if you think you will lose.  It gives you more insight into the State’s case as the prosecutor defends against the motion to suppress, since the investigating officers are subject to cross-examination, and often-times aspects of the case can be made to appear weak in the eyes of the judge, even if he allows the evidence in.  That can be a useful factor at both the trial and, if your client is convicted, at sentencing.  Most judges will be more inclined to leniency in sentencing in my experience if the conviction was based on some weak or questionable evidence. →']);" class="more-link">Continue reading

Rumpole of the Bailey

 

I have sometimes been known to say, especially after a fairly crazy day in the law mines, yesterday was such a day, that I practice law mainly because of the amusement that it affords me.  As long as courts, judges, attorneys, and innocent and not so innocent clients exist, vaudeville will never be dead.  I rarely have found entertainment on television to match it in dramas or comedies regarding attorneys.  Most of them tend to be bloated soap operas, a la that wretched piece of tripe from the eighties, L.A. Law, but every now and then I do find a show that is a cut above, entertaining while relaying some truth about the legal system.

Perhaps the best I have come upon is the British show Rumpole of the Bailey, which ran from 1975-1992.  Written by John Mortimer, a playwright and noted Queen’s Counsel, (a rank given to British Barristers who are considered the top of their profession),  it follows the legal misadventures of Horace Rumpole.  Rumpole is a barrister, a British attorney who represents clients in court.  A self-described “Old Bailey Hack” (The “Old Bailey” being the London criminal court.),  both fame and fortune have eluded Horace.  No judgeship for him, not even the rank of Queen’s Counsel.  (Horace refers to them dismissively as Queer Customers.)  However, Horace is a happy man.  He realizes that he is a gifted trial attorney, and that knowledge is good enough for him.  The episodes usually revolve around one case, as we see Rumpole mostly prevailing, while illustrating both his own absurdities and those of the British legal system, his clients and society at large.  John Mortimer, at least in his younger days, was a political left winger, but there are no sacred cows in Rumpole land, no matter if they moo to the left or the right. →']);" class="more-link">Continue reading

Notre Dame 88

By Charles E. Rice

Fr. Norman Weslin, O.S., at the complaint of Notre Dame, was arrested in May 2009 and charged as a criminal for peacefully entering the Notre Dame campus to offer his prayer of reparation for Notre Dame’s conferral of its highest honor on President Obama, the most relentlessly pro-abortion public official in the world.  The University refuses to ask the St. Joseph County prosecutor to drop the charges against Fr. Weslin and the others arrested, still known as the ND 88 although one, Linda Schmidt, died of cancer this past March.  Judge Michael P. Scopelitis, of St. Joseph Superior Court, recently issued two important orders in this case.

The first order denied the State’s motion to consolidate the cases of multiple defendants.  That motion would have denied each separate defendant his right to a separate jury trial.  The order did permit consolidation of the trials of twice-charged defendants on the separate offenses with which that defendant was charged; a defendant charged, for example, with trespass and disorderly conduct would therefore not have to appear for two trials.  Judge Scopelitis also denied the prosecution’s attempt to force each defendant to return to South Bend for each proceeding in the case, which would have coerced the defendants to abandon their defense.  Instead, the Judge permitted the defendants to participate by telephone in pre-trial conferences.

→']);" class="more-link">Continue reading

Mosque Opponents: Be Careful What You Wish For, You Might Get It

The debate over the so-called Ground Zero mosque near the former site of the World Trade Center in New York has raised public interest in, and opposition to, other proposed or recently built mosques and Islamic centers throughout the country.

In areas where Muslim migration or immigration has been significant, some citizens have attempted to discourage construction of new mosques. Few come right out and cite the threat of terrorism; more often they seem to resort to time-honored NIMBY (Not In My Back Yard) tactics such as creative interpretation of zoning ordinances, claims of decreased property values, or claims of real or potential problems with traffic, noise, etc.

Before I go any further, I want to make it clear that I understand the need to be vigilant regarding the potential for violent subversion, as well as the dangers of taking such a politically correct approach to militant Islam that people hesitate to report obvious suspicious activity for fear of being labeled bigots (as seems to have happened in the Fort Hood massacre case).

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Not So Fast…

A Panel of the 9th Circuit has surprisingly issued a wise decision, deciding to allow Proposition 8 to remain in place while the 9th Circuit considers its constitutionality.

This was undoubtedly the right decision. It makes no sense to force a state to marry people while knowing that a later decision could invalidate all those marriages.

One hopes that this is the beginning of a trend in reversing Judge Walker, whose rulings in this case can best be described as what happens when judicial activism meets the dictatorship of relativism.

Proposition 8 Struck Down, For The Time Being

By now I’m sure you all know that Proposition 8 was struck down by a federal judge. Who knows what will happen on appeal. There is much to be said, but I want to focus on one narrow and possibly tangential point. This phrase from the judge’s ruling, a phrase being reposted on facebook in many statuses:

“A private moral view that Same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation.”

The absurdity of that sentence really struck me. There was nothing “private” about the view of the “superiority” of hetereosexual couples. It has been carried on through generations of communities and in the present day was represented by 52% of Californians. How a popular decision that represented thousands of years of ethical thinking and concern for the family became a private morality is baffling.

More troubling is the implication of the judge that a “moral view” is not a proper basis for legislation. Since when has this been the case? Our laws on pedophilia, minimum wage, health care, torture, human rights, etc. are based at least on part on “moral views,” views that in some respects may be just as if not more private than the ones the judge rejects today.

If morality is not a basis for legislation, what on earth is? Morality guides us in making decisions; without a moral or ethical compass (or perhaps even without a religious one) there is no basis for legislation to be made. Laws are supposed to help make society run better, but there is no way to make society run better unless you have a notion of what a “better society” looks like, and you don’t get to that notion without morality.

State recognition of homosexual marriage is one thing, but this ruling attacks the foundation of our government. Morality must have a place in the public sphere and must be one of the foremost foundations of legislation.

To be sure, the judge is simply smoke-screening for the fact that he is imposing his own standards of morality. But the fact that his statement rejecting a moral basis for legislation is being so celebrated should worry all Americans.

American Bar Association Considering to Support Same Sex Marriage

The American Bar Association will be considering supporting same-sex marriage at their next meeting in San Francisco.

It urges state, territorial and tribal governments to eliminate laws restricting marriage between same-sex partners.

Supporters say the adoption of the measure would build on past ABA policies supporting protections for gay couples and their families. The House of Delegates in 2004 approved a recommendation opposing efforts to enact federal legislation preventing states from allowing same-sex marriage. “Everyone who worked on it is hopeful,” said Michele Kahn, a partner at Kahn & Goldberg who chairs a New York State Bar committee on gay rights. The State Bar in June 2009 came out in support of same-sex marriage, dropping its support of civil unions or domestic partnerships as alternative measures.

Kahn said so far no formal opposition has come forward against the measure.

What I find amazing is that there is no formal opposition.

I know a lot of pro-life and practicing Christian lawyers, how can this be?

Elena Kagan Says It Is Fine If The Law Bans Books

SCOTUS nominee Elena Kagan has argued before the Supreme Court that it’s fine if the Law bans books.

Her rationale?

Because the government won’t really enforce it.

I’m no legal scholar but this sounds like a 3rd grade argument.

Aren’t our nominees suppose to have better reasoning skills and a solid grasp of the U.S. Constitution?  As well as a fundamental understanding  of such concepts like Freedom of Speech?

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