UNDERDOG - Criminal/Drunk Driving Defense in Maryland, Virginia, DC - Constitutional Law

Thanks, Mildred and Richard Loving.

nospam@example.com (Jon Katz) — Tue, 06 May 2008 00:00:00 -0400

Growing up in southern Connecticut, I recoiled in horror over the blatant, violent, and rampant racism that overtook so much of the South right into the 1960's. Confronting such a reality made me also recognize all the more the substantial extent of racism right in my Northeast United States backyard -- and, sadly, even my local backyard -- without the South's then-recent Jim Crow laws.

Mildred and Richard Loving were a low-key counterpoint to my numerous strongly-worded responses over time to people saying words that at best have been racially insensitive, with some speakers admitting their racism outright, and with most of them denying being racist and sometimes trotting out that one of their best friends is this or that race or religion.

Appropriately surnamed, Mildred and Richard Loving were in love and wanted to marry, having no Jim Crow-busting agenda beyond that. However, as an interracial married couple in 1958 Virginia, they were prosecuted and convicted for violating the state's law criminalizing interracial marriage (with the case having moved so quickly, apparently to get released from pretrial detention, that it seems doubtful that they even had a lawyer when entering their guilty pleas). As the New York Times reports, the Loving's sentencing judge "Judge Leon M. Bazile, in language Chief Justice Warren would recall, said that if God had meant for whites and blacks to mix, he would have not placed them on different continents. Judge Bazile reminded the defendants that 'as long as you live you will be known as a felon.'”

In 1967, the Lovings overturned Virginia's marriage miscegenation law out of the ballpark with a unanimous United States Supreme Court. The racist judge Bazile died less than a month before the case was argued before the Supreme Court. which decided the case in two months flat. In overturning the Loving's conviction, Chief Justice Earl Warren declared: "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." Loving v. Virginia, 388 U.S. 1 (1967).

Only eight years after this Supreme Court victory, Richard Loving died in a car accident. Last Friday, Mildred Loving passed away at sixty-eight. These two apparently otherwise very private people became permanent public figures through their last name, which will remain synonymous with smashing racism not only with interracial marriage but as another nail in the coffin of Jim Crow.

As an aside, one of the Loving's two Supreme Court lawyers, obtained through the American Civil Liberties Union, was the now-retired Philip J. Hirschkop, just around two years out of law school when he argued the case, with lawyer Bernard Cohen arguing in rebuttal. Read this colorful account of this lawyer who is very colorful, to say the least, and who has apparently never shied away from defending the most controversial of clients. What a counterpoint: the salty-tongued Phil Hirschkop representing the low-key Lovings. Perhaps it was yin and yang; perhaps not.

Thanks, Mildred and Richard Loving, for staying true to yourselves, and for having stepped out of the shadows of anonymity to advance this essential fight against racism and for justice. Jon Katz

A vote for McCain will further shred civil liberties from the federal courts.

nospam@example.com (Jon Katz) — Thu, 17 Apr 2008 00:00:00 -0400

Although I am not fond of Barack Obama and am less fond of Hillary Clinton, I absolutely oppose John McCain. For starters, he will keep the Iraq war going and will disrespect civil liberties more than Obama or Clinton will do. For starters, McCain undoubtedly will tap into the bucket of Bush I and Bush II appointees, who in general are more hostile to civil liberties than those who served under Bill Clinton and Jimmy Carter. Additionally, McCain proudly proclaims he is a conservative, which says more against than for civil liberties.

Presidents leave a particularly long legacy on civil liberties through their federal judicial appointments, particularly by their appointments to the Supreme Court. All federal judges are installed for life, unless they are impeached or retire.

For the latest example of the severe damage done by presidential federal judicial appointees long after the president leaves office, take a look at yesterday's 7-2 Supreme Court vote in Baze v. Rees, __ U.S. _ (April 16, 2008) rejecting the lethal injection death penalty challenge that arose from the risks that the tri-part lethal injection cocktail is unconstitutionally cruel and unusual for the unseen excruciatingly lengthy pain that it can cause. Who voted in the minority? Only Bill Clinton-appointed Ruth Bader Ginsburg and Bush I-appointed David Souter. The remaining justices, who rejected this death penalty challenge, were all appointed by Republicans, except for Clinton-appointed Stephen Breyer, who tends to support giving substantial regulatory discretion (here, including choosing the method of execution) in the hands of the legislative and executive branches of the government.

Although the sky has not yet completely fallen on civil liberties after eight years of reactionary Regan followed by four years of Bush I, the intervening eight years of the Bill Clinton administration (whose judicial appointments were not sufficiently protective of civil liberties, either) will not be enough to prevent severe and accelerated federal judicial damage to the Constitution if McCain becomes president. McCain proudly pronounces his conservative bona fides, which will inevitably lead to his appointing more federal judges hostile to civil liberties than if Obama or Hillary Clinton make the appointments. Certainly, the Senate must approve federal judicial appointments, but even during the Reagan years, the Borking of the Bork nomination took so much energy by his opponents that the Reagan administration was able to regroup with its remaining federal judicial appointments; no Senate vote has kept any subsequent Supreme Court nominee off the bench.

Aside from the repeated vacancies at the federal District and Circuit Court level, the next president likely will appoint at least one Supreme Court justice, if not more. Justice John Paul Stevens will be eighty-eight next week and will be nearly ninety-three when the next president leaves office; it is very doubtful that Stevens will stay on the bench as long as that. Ford-appointed Stevens is often, but certainly not always, one of the more reliable justices for giving some real offset to at least five of the justices who are more dangerous to civil liberties, those five being Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy. .

In any event, even if Obama and Clinton are averting campaign focuses on civil liberties in order to try to be more "electable" against McCain, such downplaying only leaves a bad taste in my mouth and a continuing cynicism about most political candidates and elected officials. Jon Katz

ADDENDUM The justices essentially treated this Baze case as being about the Constitutionality of current lethal injection methods, and not the Constitutionality of the death penalty itself. However, it appears that Justice Stevens is the only sitting justice who might be ready to rule the death penalty itself to be unconstitutional. For instance, in his concurring opinion, Justice Stveens proclaims:

"I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring)."

In her dissenting opinion in Baze, joined by Justice Souter, at the outset Justice Ginsburg demonstrates how seriously mistaken are the remaining justices who upheld Kentucky's lethal injection approach:

"Kentucky’s three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be “constitutionally unacceptable.” Ante, at 14. The constitutionality of Kentucky’s protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentucky’s system is constitutional, the plurality states, because “petitioners have not shown that the risk of an inadequate dose of the first drug is substantial.” Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentucky’s protocol lacks
basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and 2 BAZE v. REES GINSBURG, J., dissenting third drugs. I would vacate and remand with instructions to consider whether Kentucky’s omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

Further increasing the risk of excruciating pain from lethal injection is the widespread use of people insufficiently trained in medicine to carry out the lethal injections. Justice Alito's concurring opinion in Baze demonstrates the widespread rejection among medical associations of the involvement of medical professionals not only in carrying out lethal injections, but even in seeking to reduce the pain caused by lethal injection.

In any event, at least five justices, including the dissent, made clear that Baze's upholding of the Kentucky protocol does not prevent Constitutional challenges to other states' lethal injection protocols, even though Baze rejects the Constitutional challenge to Kentucky's lethal injection protocol.

To self-execute or not self-execute, that is the question! Or is it?

nospam@example.com (Jon Katz) — Wed, 26 Mar 2008 00:00:00 -0400

Bill of Rights (Image from the public domain.)

Yesterday saw five of the most conservative of the Supreme Court justices refusing to require a state court system (in Texas) to let an International Court of Justice ruling cause Texas to deviate from its law that does not permit more than one state-level habeas corpus proceeding. Medellin v. Texas, __ U.S. _ (March 25, 2008). Justice Stevens concurred in the majority opinion, but found much to like, as well, in the dissent of Justice Breyer, who was joined by Justices Souter and Ginsburg.

Criminal defendant Medellin's habeas corpus action reviewed by the Supreme Court in Medellin was not a run of the mill habeas corpus action. Mr. Medellin is among the countless occupants of Texas's death row. Although living in the United States since early childhood, he is a Mexican national who was questioned by the police, spilled the beans about his involvement in the gang rape and murder of two teenage girls, and apparently was denied his right under the Vienna Convention -- a treaty passed by the United States Senate, with the Constitution including treaties among the supreme law of the land -- to be advised of his right, as a non-United States citizen, to consult with a consular representative from his country of citizenship (who presumably would have told Mr. Medellin about his right to counsel and the extent to which the Mexican government would help him pay for or find a criminal defense lawyer or give him other advice). Medellin apparently raised the consular consultation issue in his second state habeas corpus petition in the light of the Avena decision from the International Court of Justice at the Hague, which directed United States courts to review the cases of several dozen convicts who alleged they were denied advice of their right to consular consultations under the Vienna Convention.

The lengthy Medellin majority and dissenting opinions cover much ground, and require more than the one quick reading I gave to give a sufficient overview of the ruling, aside from the following key points. Such blogs as Opinio Juris and Scotus address the opinion further than do I in this blog entry. Nevertheless, this is a very important Supreme Court ruling that has implications beyond criminal proceedings to reach the effect on American courts of the rulings of all international tribunals on both criminal and non-criminal matters (including international tribunals interpreting the application of NAFTA and the World Trade Organization).

Before going into some of the key points of Medellin, the very noticeable tension between the majority and dissent appears to revolve in large part around a reluctance of the majority to see American court sovereignty handed over so easily to international tribunals without that requirement being made as clear as day in the governing treaty itself or perhaps even in clarifying federal legislation (and not in clarifying presidential orders or other presidential memoranda, because here the Supreme Court gave no effect to such a recent presidential clarification). The dissent, on the other hand, seems to say that such compromises of American court sovereignty are for American treaty makers (the president must approve the treaty, and then the necessary number of senators must approve it) to make or not to make, and that -- at least in this instance -- the treaty and Congress need say nothing more for federal and state courts to be required to give effect to the rulings of such international tribunals, to the extent that the applicable treaty gives such binding effect to the international tribunal.

Here are some of the key points of Medellin:

1. Apparently still alive and well is the Vienna Convention's requirement that those who are not citizens in the country where arrested be advised of their right to consular consultation. The Supreme Court seems to leave open courts' authority to enforce this provision of the Vienna Convention, but was not about to tell Texas to deviate from its prohibition against subsequent habeas corpus proceedings.

2. If Medellin were challenging a federal versus a state prosecution at the habeas corpus level, the Supreme Court may have given effect to the ICJ's Avena decision, at least here where president Bush signed a memorandum giving effect to ICJ decisions interpreting the Vienna Convention, and where federal prosecutions are pursued to the president's executive branch.

3. The majority seems very concerned about reaching an opposite result than it did, lest unforeseen and harmful results follow from having American courts bound by international tribunals that are not governed by safeguards of the United States Constitution.

4. Perhaps influencing some of the justices in the majority in Medellin is an aversion to giving more review rather than less review to habeas corpus challenges involving capital cases.

5. This case is important for interpreting all treaties, including the extent to which they will be treated by courts as self-executing or not. Jon Katz

Meeting Winter Soldiers, Amy Goodman, and James Yee.

nospam@example.com (Jon Katz) — Wed, 19 Mar 2008 00:00:00 -0400

Amy Goodman and James Yee (Photos by Jon Katz, March 18, 2008,)

How many people, when asked "What were you doing during [some major historical event]?" can only shrug their shoulders to say they missed it all, during the daily grind of work, the commercial monster, commuting, eating, sleeping, and beer? It is easy to do; my biggest motivator for doing the opposite comes from kicking myself for having chosen law school studies one night over what turned out to be my only life's chance to meet the late Abbie Hoffman, who spoke just two blocks away.

America has been at all out bloody war for over five years. The Federal Reserve has bailed out Wall Street with huge corporate welfare when the economy is still in trouble at best. Gasoline prices keep rising not only because oil producers have a big enough demand to get away with it, but also because America's addiction to fossil fuels competes with a heroin addict's cravings for junk. For those who have not woken up yet, it is time to do so. Gone should be the days when those in power smile at a relatively docile population that is complacent enough to get a good enough paycheck biweekly and to be occupied by sports and other non-political diversions during leisure time.

With that backdrop, during the last five days, I have met Winter Soldiers, Amy Goodman, and James Yee. Here is a short rundown.

With the Winter Soldiers, I resume where I left off on March 4, when I blogged about American veterans of the wars in Iraq and Afghanistan taking over from the 1971 tradition of the Vietnam veteran participants in the original Winter Solder investigation. I volunteered along with numerous other lawyers around the nation -- organized through the National Lawyers Guild -- to be on call to give legal advice to witnesses who might wish consultation about their criminal exposure both for divulging allegedly classified information, and for any admissions of war crimes and other wartime activities subject to court martial proceedings.

I missed the opportunity to advise any of the witnesses, as more lawyers signed up for my March 13 timeslot than witnesses wishing their advice. The next day, morning court finished early enough before afternoon court began that I was able to drive to the Winter Soldier site two miles up the street from our office, at the National Labor College in Silver Spring, Maryland. Near the sidewalk entrance to the college were several dozen pro-war protesters against the Winter Soldier investigation, with signs urging honked horns in support. Further down the entrance, as I was told to expect, unarmed civilian security folks in t-shirts asked my business, and I was waved through after telling them I am a lawyer member of the National Lawyers Guild and showed them my business card. Profoundly influenced by the first Winter Soldier investigation, I was determined to get at least a glimpse of this gathering. My visitor pass is here; the conference took place on the fortieth anniversary of the My Lai massacre.

On my arrival, a panel of veterans were discussing their struggles in getting sufficient healthcare for injuries suffered while in Iraq and Afghanistan. For many wounded soldiers, it seems that they struggle with a mountain of bureaucratic paperwork and often a faceless military medical bureaucracy that would make the oppression visited by governmental power on Kafka seem like child's play.

I said hello to a few people who seemed to be Iraq and Afghanistan veterans. I then met some Vietnam war veterans, including two who testified at the original 1971 Winter Soldier. One of the Vietnam Winter Soldier witnesses told me about a presentation by Vietnam veterans in Washington, D.C., apparently near the time of the first Winter Soldier, where one of them talked of seeking an American soldier throw a Vietnamese child down a well, and an animal after the child. Had the child not met such a terrifying fate, he would be over thirty-five today. Later that night, the same speaker went berserk in his hotel room. It turned out that this ordinarily mild-mannered man was the one who threw the young boy and the animal down the well. War dehumanizes.

Another Vietnam Winter Soldier witness told me how he learned where were the American-placed bouncing Bettys -- landmines that would hurl into the air at waist-height and shoot out deadly shrapnel -- and would dodge them to leave the base to go into town, where he would return with drugs to share. This man knew an 80-pound grandmother whose village ultimately came under attack by American soldiers. Terrified, the woman clung to this soldier who would dodge bouncing Bettys. The late Sgt. __ -- who I was told drank himself to death many years later over such reprehensible violence -- shot her pretty much in half as she clung to this soldier.

The Vietnam war ended in 1975, which gave the American military propaganda machine a chance to start a new war twenty-eight years later in Iraq, inundated with soldiers and civilians far removed from the horrors of the Vietnam war.

Amy Goodman of Democracy Now! -- awarded yesterday the local American Civil Liberties Union's annual Henry W. Edgerton Civil Liberties Award -- feels that the tide will turn on American public opinion on the current Gulf war, if only news coverage of the war for one week mirrored the intensity and frankness revealed in journalists' films and still photos that helped turn the Vietnam war into a most unpopular was in the United States. She feels that the media are heavily limiting real revelations of what has been happening at the multi-day Winter Soldier.

Amy and fellow awardee Ralph Temple warned of the harm to democracy that comes from a mainstream news media that is heavily invested in America's for-profit corporations, and that include such military industrial complex companies as General Electric, which owns NBC television. Ralph further warned that only eleven corporations control the bulk of news coverage in the United States.

Amy has been in town daily covering the Winter Soldier investigation. She emphasized the critical importance of having such independent news outlets as Pacifica bringing their ideas and music to the airwaves without accepting corporate funding. She would make a great trial lawyer.

Also at yesterday's ACLU annual lunch was keynote speaker James Yee, whom Amy Goodman has previously covered. Mr. Yee tumbled from being a decorated Muslim chaplain at Guantanamo several years ago, to being charged, manhandled, and locked up for many days as if he were a terrorist. Countering any notion that any evidence was strong against Mr. Yee, the Defense Department ultimately dismissed the case, and he was honorably discharged after resigning his commission.

Yesterday, I met James Yee and Amy Goodman at the end of the ACLU awards gathering. For years I have felt that Amy Goodman is indispensable, no matter how biased or not she may be. For months I have been planning on blogging about Mr. Yee, whose lawyer Gene Fidell is a dynamite local lawyer who previously served with me on the local ACLU board.

I recommend obtaining Amy Goodman's and James Lee's latest books. Amy's latest book is Static: Government Liars, Media Cheerleaders, and the People Who Fight Back (Hyperion 2006). James's book is For God and Country: Faith and Patriotism Under Fire. (Public Affairs 2005). I bought each book, and each writer gave me their inscription. Amy wrote: "Jon- Make Static!" James wrote: "To Jon- Stand firmly for Justice." Both of them urge others to stand up for justice and to watch out about being lulled into a false sense of security and comfort by huge power structures who want nothing more than such a false feeling of security.

Jon Katz

Boston College law professors say no to Mukasey.

nospam@example.com (Jon Katz) — Fri, 14 Mar 2008 00:00:00 -0400

The Bill of Rights. (From the public domain.)

When then-attorney general Dick Thornburgh had been invited as my law school's commencement speaker, I was none too pleased. To me, Thornburgh's Justice Department continued where the Ed Meese Justice Department left off, with rampant disrespect for immigrants' rights, a First Amendment-trampling anti-obscenity campaign, advocating drug-testing of its employees, and, of course, continued assault on women's right to choose abortion. Sadly, regime change did not result in a Clinton Administration that championed civil liberties nearly as much as I hoped it would (and the notion of a drug-testing-free society has become a quaint one for now), although Clinton certainly was pro choice, and his administration withdrew from obscenity prosecutions in favor of child pornography prosecutions.

My close law school friend Lou Manuta and I identified and weighed our options: boycott the graduation; tape protest messages to our graduation caps; or proceed with the graduation but leaflet the attendees. We arrived at the third option after concluding that a small-scale boycott would not be a message to anybody, and that there's not much of a persuasive message to put on a graduation cap. Consequently, we put together a simple leaflet saying: "George Washington Law School welcomes Dick Thornburgh as keynote speaker.... But," and continuing on the inner pages to detail our above-listed concerns. With some fellow graduates joining our cause -- which probably had more of a positive impact than the two of us just boycotting the lackluster graduation ceremony -- we called ourselves Law Students for Justice, suggested in the leaflet that people contact Mr. Thornburgh directly with their concerns (we sent a letter and the leaflet to Mr. Thornburgh in advance), and recruited a few people to hand out the leaflets as attendees filed in. More on Thornburgh's lackluster speech and my two meetings with Thornburgh (who emailed me that he believes in disagreeing agreeably, when I emailed him this blog entry about him) and other opponents is here.

I had not thought of rallying law professors to this Thornburgh protest. Having assumed (perhaps incorrectly) from our Amnesty International petition tables and other general observations that even most sympathetic professors would prefer not making such waves, I focused on some of our fellow soon-to-be graduates to join our cause. Today, George Washington University students have great faculty supporters of human rights in the form of blogger Jonathan Turley; human rights pro bono advocate Ralph Steinhardt, who taught while I was there; and probably some of the clinical law professors.

How pleased I was to learn that twenty-two Boston College law professors this week sent this letter to attorney general Michael Mukasey requesting that he reconsider his acceptance of an administration invitation to speak at the May 2008 law school graduation. The professors made an excellent point that if he were to speak on campus in a regular speech format, the audience could grill/skewer/question him about waterboarding and other extreme interrogation methods. As a graduation speaker, he will have the final and only word. Thanks to BC law school's Eagle and ABA's website for reporting on this story.

Educational institutions should think more closely in selecting graduation speakers, issuing honorary degrees, and putting donors' names on buildings. This is not to say that their selections should be dull or non-controversial. On the other hand, take American University, which for years had the Adnan M. Khashoggi Center on campus -- which at least some students and faculty opposed -- and later removed the man's name after Khashoggi, of Iran-Contra fame, apparently defaulted on his donation promise.

In 1989, George Washington University, where I went to law school, conferred an honorary doctor of laws on former Korean president Roh Tae Woo, who was far from a darling of human rights. George Washington University never learned its lesson. In 2006, GW handed out honorary degrees to George Bush I and Barbara Bush. GW bestowed the same honor in 2004 to General John Shalikashvili when opposition to the Iraq war was already high, and justifiably so. Granted, along the way, GW made some good picks with honorary degrees, including late Supreme Court Justice William Brennan, Bishop Desmond Tutu, and musician Billy Taylor.

My college, Tufts University, seemed to make many wiser honorary degree decisions once I got there, often calling attention to many deserving of wider attention -- including Eugene Ionesco, Maya Angelou and John Updike -- while still giving honorary degrees to many government officials, although generally avoiding awarding them to the likes of Henry Kissinger and Fidel Castro. However, before I arrived there, Tufts' Fletcher School wrongheadedly made plans to establish a Ferdinand Marcos chair (complete with bondage straps and electric shock torture implements?) but then dropping the chair plans when he fell short $1 million of his $1.5 million pledge (it appears the school kept the half million dollars that was paid). The things money can buy.

In any event, thanks to the Boston College twenty-two for inviting attorney general Mukasey to be somewhere else on BC law school's graduation day. Jon Katz.

"NO TRESPASSING" signs be damned in 4th Amend. challenges?

nospam@example.com (Jon Katz) — Wed, 05 Mar 2008 00:00:00 -0500

Bill of Rights. (From the public domain.)

On February 28, 2008, Maryland's intermediate appellete court proclaimed that so long as the cops are on legitimate business, they can knock (and keep on knocking -- even banging, probably -- for minutes on end) in an effort to talk with suspects. Under those circumstances, what are a bunch of "no trespassing" signs between the cops and the suspect for search and seizure challenges? Nothing, says Maryland's Court of Special Appeals. Jones v. Md., _ Md. App. _ (Feb. 28, 2008). I hope this case gets appealed and reversed. Jon Katz.