The General Assembly of the Commonwealth of Pennsylvania has passed a bill rejecting the “obligation to retreat” theory and vigorously affirming the right of self defense.

Philadelphia Inquirer:

“The General Assembly finds that:

“(1) It is proper for law-abiding people to protect themselves, their families and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.

“(2) The castle doctrine is a common-law doctrine of ancient origins which declares that a home is a person’s castle.

“(3) ... The Constitution of Pennsylvania guarantees that the ‘right of the citizens to bear arms in defense of themselves and the state shall not be questioned.’

“(4) Persons residing in or visiting this commonwealth have a right to expect to remain unmolested within their homes or vehicles.

“(5) No person should be required to surrender his or her personal safety to a criminal, nor should a person be required to needlessly retreat in the face of intrusion or attack outside the person’s home or vehicle.”

The question is whether democrat, pro-Gun Control Governor Edward Rendell will sign the bill, or defy strong public support by vetoing it.

If the bill passes into law, watch crime rates plummet in Pennsylvania.

The answer is: not well. The Embassy Bomber who killed 224 people in the simultaneous truck bomb attacks on US embassies in Kenya and Tanzania in 1998 was acquitted in a Manhattan Federal District Court of all but one count of a 285 count indictment.

Jennifer Rubin, in Commentary, explains what went wrong.

The acquittal of Guantanamo detainee Ahmed Khalfan Ghailani yesterday on all but one of 285 counts in connection with the 1998 al-Qaeda bombings of the U.S. embassies in Kenya and Tanzania has once again demonstrated that the leftist lawyers’ experiment in applying civilian trial rules to terrorists is gravely misguided and downright dangerous. The soon-to-be House chairman on homeland security, Peter King, issued a statement blasting the trial outcome and the nonchalant response from the Justice Department:

“I am disgusted at the total miscarriage of justice today in Manhattan’s federal civilian court. In a case where Ahmed Khalfan Ghailani was facing 285 criminal counts, including hundreds of murder charges, and where Attorney General Eric Holder assured us that ‘failure is not an option,’ the jury found him guilty on only one count and acquitted him of all other counts including every murder charge. This tragic verdict demonstrates the absolute insanity of the Obama Administration’s decision to try al-Qaeda terrorists in civilian courts”

Congress can start by ending federal-court jurisdiction over detainees. Then they should demand Eric Holder’s resignation — preferably before his serially wrong advice causes any more damage to our national security.

As the New York Times explains:

[P]rosecutors built a circumstantial case to try to establish that Mr. Ghailani had played a key logistical role in the preparations for the Tanzania attack.

They said the evidence showed that he helped to buy the Nissan Atlas truck that was used to carry the bomb, and gas tanks that were placed inside the truck to intensify the blast. He also stored an explosive detonator in an armoire he used, and his cellphone became the “operational phone” for the plotters in the weeks leading up to the attacks, prosecutors contended.

The attacks, orchestrated by Al Qaeda, killed 224 people, including 12 Americans, and wounded thousands of others.

But the case was ill-suited to civilian courts, and a key witness was excluded from testifying:

But because of the unusual circumstances of Mr. Ghailani’s case — after he was captured in Pakistan in 2004, he was held for nearly five years in a so-called black site run by the Central Intelligence Agency and at Guantánamo Bay, Cuba — the prosecution faced significant legal hurdles getting his case to trial. And last month, the government lost a key ruling on the eve of trial that may have seriously damaged their chances of winning convictions.

In the ruling, the judge, Lewis A. Kaplan of Federal District Court, barred them from using an important witness against Mr. Ghailani because the government had learned about the man through Mr. Ghailani’s interrogation while he was in C.I.A. custody, where his lawyers say he was tortured.

The witness, Hussein Abebe, would have testified that he had sold Mr. Ghailani the large quantities of TNT used to blow up the embassy in Dar es Salaam, prosecutors told the judge, calling him “a giant witness for the government.”

The judge called it correctly, and explicitly warned the government of “the potential damage of excluding the witness when he said in his ruling that Mr. Ghailani’s status of ‘enemy combatant’ probably would permit his detention as something akin ‘to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.’”

In other words, what in the world was the bomber doing in an Article III courtroom? He was, quite bluntly, part of a stunt by the Obama administration, which had vilified Bush administration lawyers for failing to accord terrorists the full panoply of constitutional rights available to American citizens who are arrested by police officers and held pursuant to constitutional requirements.

Once again, the Obama team has revealed itself to be entirely incompetent and has proved, maybe even to themselves, the obvious: the Bush administration had it right.

Michigan federal district Judge George Caram Steeh III upheld the Obamacare individual health insurance purchase mandate in a case challenging the law brought by the conservative Christian Thomas More Law Center.

The Politico story

Steeh’s decision referred to a number of intellectually questionable precedents expanding the Commerce Clause outrageously through the use of casuistical reasoning.

As Judge Steeh not inaccurately observes, a body of precedent law exists sustaining congressional edicts based on the constitutional power to regulate interstate commerce effectively reaching all sorts of persons and activities not in fact engaged in Interstate Commerce.

Post New Deal jurisprudential understanding of the Commerce Clause limitation amounted to the Constitution forbidding congressional interference only in cases of individual persons or activities that could not be in any way, shape or form theoretically causally connected (even negatively) to the national economy or to rational goals of liberal policy by clever and well-educated attorneys.

Such a standard is, of course, completely nugatory and impotent to stop anything at all, and Judge Steeh abashedly alludes to the relatively recent, and distinctly innovative for their era, cases of Morrison and Lopez to establish the contrary. I smiled ironically upon reading that.

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.

Judge Steeh’s decision is a competent and professionally produced example of carefully reasoned liberal statism, and very much represents the Keep-the-Constitution-in-Exile reasoning that will be used to defend Obamacare when the various state lawsuits eventually reach the Supreme Court.

The New Federalism and Rational Basis casuistry will meet again in the nation’s highest court before terribly long.

Ilya Somin, at Volokh, pessimistically believes the mandate is more likely to be upheld than not.

I think we have the better reasoning and a narrow conservative majority on the Court, backed by a national negative consensus on Obamacare. I’m not so sure we are going to lose.

Death of Achilles, Villa Reale, Milan

Louis Case, at American Thinker, points out that the complicated Machiavellian shenanigans needed to get Obamacare through Congress inevitably include the potential legal seed of the destruction of the entire bill.

Virginia’s lawsuit argues that the federal government has no constitutional authority to require individuals to purchase health insurance policies.

Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law—that is, the rest of the law stands.

But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)

If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown’s election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts—a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.

As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended.

The late Ken Rex McElroy

After 30 years, David Baird, prosecuting attorney of Nodoway County, Missouri, is retiring after being defeated 1,356 votes to 1,381 votes, a margin of 25 ballots, in the democrat party primary.

The famous town bully shooting in Skidmore which took place within months of Mr. Baird first assuming office remains unsolved to this day.

Kansas City Star:

Ken Rex McElroy, 47, was a big, burly man with bushy sideburns, cold eyes and an ever-present gun. He was the Skidmore bully. On July 10, 1981, on a hot summer morning in a fed-up town, he was shot to death in plain view of 30 to 40 people who gathered around his Chevrolet pickup outside a beer joint on Main Street.

Killed instantly by rifle bullets, his foot pushed the accelerator to the floor. The engine roared. Like something in literature, no one shut it off. They just walked away.

Except for McElroy’s wife, nobody told who did it. Investigators and grand juries heard the same thing time and time again: “I heard shooting and got down. Didn’t see a thing.”

Apparently, McElroy was mean enough to unite a town of plain, good folks to do murder. He had terrorized Skidmore for years. He allegedly stole livestock, burned houses, chased women, preyed upon young girls — and threatened a bullet or buckshot for anyone who got in his way.

Baird could never charge anyone.

Wikipedia article.

Despite being a democrat, it sounds like Mr. Baird was a responsible prosecutor. Let’s hope his successor continues to follow his example.

McElroy’s pickup truck

Xavier Alvarez, decked out in a US Army uniform with medals he never earned

In November of 2006, Xavier Alvarez was elected to represent the city of Pomona on the board of the Three Valleys Municipal Water District as a war hero who had been awarded the Medal of Honor.

Alvarez claimed to be a retired 25-year Marine Corps veteran, who was many times wounded and had received the nation’s highest award for military valor for serving as a helicopter pilot and rescuing US POWs from behind enemy lines during the War in Vietnam. In fact, Alvarez was never in the military, and was 17 years old when the Vietnam War ended in 1975. (Inland Valley Daily Bulletin link)

In 1977, Alvarez was exposed and was prosecuted and pled guilty under the Stolen Valor Act of 2005, which made the unauthorized claim, display, manufacture, or sale of US military decorations or awards a federal misdemeanor. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000, but then appealed claiming the 2005 law violated his right to free speech (!).

Preposterous, wouldn’t you say?

But not too preposterous to persuade a three-judge panel of the 9th Circus. Judge Milan D. Smith opined, joined by Judge Thomas Nelson, as Josh Gerstein reports, that there is a free speech right to lie.

We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths. But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment.

While asserting that they were not endorsing “an unbridled right to lie,” Smith and Nelson said regulations of false speech that have been upheld by the courts were limited to narrow categories where a direct and significant harm was caused. But, they said, the harm caused by people making false statements about military decorations was not evident.

Both of these judges were Bush appointees, leading one to conclude that there must be something in the water out there.

An attractive 26 year identified only as Luisa sunbathing topless on a beach at Anzio, Italy was approached by a woman who demanded that she stop applying sun block to her bosom because it “troubled her sons aged 14 and 12.” The sunbather declined to comply, and the irate mother summoned the carabinieri.

A complaint was filed, and the incident provoked an international debate.

The young lady’s attorney, Gianluca Arrighi, delivered the following defense statement:

Let’s be clear. My client is tall, brunette and has an ample breast and is therefore going to naturally be sensuous when she applies cream to her chest.

An Anzio police spokesmen conceded to the press: “From what I heard she was very attractive.”

News.com.au (Australia)

Telegraph

Above the Law

Vaughn R. Walker

It seems that Judge Vaughn Walker’s ruling in Perry v. Schwartzenegger striking down the State of California’s Proposition 8 ballot initiative which prohibited state recognition of Same Sex Marriage is highly vulnerable to being overturned on the grounds that the judge ought to have recused himself. John C. Eastman explains in the same San Francisco Chronicle which last February was assuring readers that Judge Walker’s personal sexual orientation was a “non-issue.”

Judge Vaughn Walker’s Proposition 8 decision last week has thrust his personal life into the limelight. The San Francisco Chronicle has reported that the fact that Judge Walker “is himself gay” is the “biggest open secret” in town. The BuzzTab blog calls him “the apple of gay advocators eyes.” The Los Angeles Times reported just last month, after the conclusion of closing arguments in the case, that he is “openly gay” and “attends bar functions with a companion, a physician.”

Is any of this relevant to Judge Walker’s ruling striking down Proposition 8?

Well, as University of Notre Dame law Professor Gerard Bradley recently noted, the mere fact that Judge Walker may be homosexual would not necessarily have required recusal. But the fact that he “attends bar functions with a companion, a physician,” and may therefore be in a stable homosexual relationship of the kind that could lead to marriage, is an entirely different matter.

The political philosopher John Locke noted in his Second Treatise on Civil Government that “it is unreasonable for men to be judges in their own cases (because) self-love will make men partial to themselves and their friends.” That sentiment, undoubtedly true, is actually codified in federal law. A judge is required to disqualify himself in any proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has … personal knowledge of disputed evidentiary facts concerning the proceeding; [or] ... (c) the judge knows that the judge … has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.”

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

National Review Online expresses justifiable indignation at the latest case of judicial outrage.

It has been clear since before the beginning of the year that Judge Vaughn Walker of the U.S. District Court in San Francisco was on a mission to establish a federal constitutional right to same-sex marriage and thereby to overturn California’s Proposition 8, a constitutional amendment passed by the people of the state in 2008.

From his decision to have a “trial” of the “facts” in the case rather than proceed straightaway to legal arguments about the constitutional issues (a choice that surprised even the plaintiffs’ attorneys) to his attempt to stage a nationally televised extravaganza (brought to a halt by the Supreme Court) to his unconcealed bias in favor of the plaintiffs in virtually every aspect of the proceedings… , Judge Walker has been preparing us for a baldfaced usurpation of political power for quite a while.

What Walker did not prepare us for is the jaw-dropping experience of reading his sophomorically reasoned opinion. Of the 135 pages of the opinion proper, only the last 27 contain anything resembling a legal argument, while the rest is about equally divided between a summary of the trial proceedings and the judge’s “findings of fact.” The conclusions of law seem but an afterthought — conclusory, almost casually thin, raising more questions than they answer. On what grounds does Judge Walker hold that the considered moral judgment of the whole history of human civilization — that only men and women are capable of marrying each other — is nothing but a “private moral view” that provides no conceivable “rational basis” for legislation? Who can tell? Judge Walker’s smearing of the majority of Californians as irrational bigots blindly clinging to mere tradition suggests that he has run out of arguments and has nothing left but his reflexes.

But the deeper game Judge Walker is playing unfolds in those many pages of “fact finding” that make up the large middle of his ruling. There, through highly prejudicial language that bears little relation to any fact, the judge has smuggled in his own moral sentiments — in precisely the part of his opinion that would normally be owed a large measure of deference in the appellate courts.

———————————————————
William A. Jacobson is optimistic that Judge Walker’s decision will be overturned.

The politics of this opinion probably could not come at a worse time for Democrats. There is no groundswell of support for gay marriage, with even Obama having expressed the view during the campaign that marriage is between one man and one woman. The opinion attempts to short-circuit the political process by finding a constitutional right which most people—even people who might support gay marriage—do not recognize.

At the end of the day, I do not expect this decision to survive constitutionally, and the supporters of gay marriage may rue the day that they sought to impose a solution from the courts of law rather than the court of public opinion.

———————————————————
I’m less sanguine about Justice Kennedy’s likely ruling myself, though I think rational constitutional interpretation has at least a chance. I do think Erik Erikson is right in observing that, in the end, Americans can just add a clarifying amendment to the US Constitution and put a stop to the nonsense once and for all.

39 states have banned gay marriage.

It takes only 38 states to ratify a constitutional amendment.

A majority of the American public and three-quarters of the American states have been overruled by one federal judge in San Francisco. To be fair, the ruling only affects Northern California. It will be appealed. The odds are, for now, that the judge will be overruled.

But again and again the political elites in this country think they know best. From the mosque at Ground Zero to gay marriage to Obamacare, the majority of the people and states are forced to deal with a minority that does not respect them and democratic and legal institutions that oppose them.

If a minority of political elites and liberals can impose their will and values on a majority sufficient enough to amend the constitution, it is time for the majority to respond with constitutional force.

In Thomas Jefferson’s words, “In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

!n 1997, attorneys signed up 400 black farmers to sue the Department of Agriculture for discrimination, claiming that they were denied loans or made to wait longer for loans because of bias. So the Clinton Administration simply chose to settle the case.

Wikipedia explains:

Under the consent decree, all African American farmers would be paid a “virtually automatic” US$50,000 plus granted certain loan forgiveness and tax offsets. This process was called “Track A”.

Alternatively, affected farmers could follow the “Track B” process, seeking a larger payment by presenting a greater amount of evidence — the legal standard in this case was to have a preponderance of evidence along with evidence of greater damages.

Originally, claimants were to have filed within 180 days of the consent decree. Late claims were accepted for an additional year afterwards, if they could show extraordinary circumstances that prevented them from filing on time.

Far beyond the anticipated 2,000 affected farmers, 22,505 “Track A” applications were heard and decided upon, of which 13,348 (59%) were approved. US$995 million had been disbursed or credited to the “Track A” applicants as of January 2009[update], including US$760 million disbursed as US$50,000 cash awards.[3] Fewer than 200 farmers opted for the “Track B” process.

Beyond those applications that were heard and decided upon, about 70,000 petitions were filed late and were not allowed to proceed. Some have argued that the notice program was defective, and others blamed the farmers’ attorneys for “the inadequate notice and overall mismanagement of the settlement agreement

So now the Obama Administration is piling a further dubious capitulation on top of the first (which awarded $1 billion), and is agreeing to pass out an additional $1.25 billion to people who applied too late, and an additional 70,000 “victims” are going to cash in, on top of the first 16,000.

It’s a game. Trial attorneys cook up an alleged class of victims, and sue the government. A democrat administration obligingly settles, and everyone gets rich, especially the trial lawyers. It’s easy to win when the other team is on your side, and is eager to throw the game.

Zombie at PJM discusses the implausibility of all of this.

A typical Chipotle Mexican Grill in operation

Walter Olson, now operating out of CATO, who makes something of a specialty of chronicling the most spectacular cases of legal absurdity, was (quite deservedly) particularly proud of finding this one yesterday.

The Chipotle Mexican Grill heralds its “Chipotle Experience,” in which customers can watch their food being made behind a glass partition. Now a Ninth Circuit panel (including famously liberal judges Stephen Reinhardt and Dorothy Nelson) has ruled that the “experience” violates the Americans with Disabilities Act, to quote the AP, “because the restaurants’ 45-inch counters are too high. The company now faces hundreds of thousands of dollars in damages.” The ruling arrives just in time for the ADA’s 20th anniversary, which, as the Washington Post notes, is serving as the occasion for a virtual binge of new regulation-making by the Obama Administration and Congress.

Online reaction to the Chipotle case is tending toward the negative if not incredulous, even at places like the San Francisco Chronicle (“Good Lord, people are complaining because they can’t see a taco, get a life.”) But it’s also worth noting this significant passage (via Ted Frank at Point of Law) from the court record that the Ninth Circuit panel had to overcome:

The [district] court found that [wheelchair-using complainant] Antoninetti had failed to show irreparable injury because he had not revisited either restaurant after Chipotle adopted its written policy and because his “purported desire to return to the®estaurants is neither concrete nor sincere or supported by the facts.” It also stated that Antoninetti’s “history as a plaintiff in accessibility litigation supports this Court’s finding that his purported desire to return to the®estaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment.”

“We hold these truths to be self evident, that all men are endowed by their Creator with the right to be entertained by watching their burrito being prepared.”

It’s a wonder that, in California in particular, the blind don’t get to sue Hollywood for making moving pictures they cannot see, and the deaf don’t get to collect penalties from concert venues and the opera.

One can see in the case of Julea Ward versus Eastern Michigan University the way in which progressive academic institutions, professional organizations, and judges can all collaborate in defining educational requirements, professional standards, and the law in a such a fashion as to outlaw non-progressive opinion in the academic world as well as denying access to practice of professions to non-progressives.

Detroit News:

A federal judge [on wednesday] dismissed a lawsuit brought against Eastern Michigan University by a master’s student who said she was removed from the school’s counseling program because of her strong religious views against homosexuality.

As part of her course work, Ward had refused to counsel homosexual clients, saying she believed homosexuality was morally wrong.

The university removed Ward from the counseling program after determining her actions violated university policy and the American Counseling Association (ACA) code of ethics.

Julea Ward sued the university in 2009, alleging violation of her First Amendment and religious rights.

On Monday, U.S. District Judge George Caram Steeh ruled in favor of the university and granted it summary judgment.

“The university had a rational basis for adopting the ACA Code of Ethics into its counseling program, not the least of which was the desire to offer an accredited program,” Steeh said in a 48-page opinion.

“Furthermore, the university had a rational basis for requiring its students to counsel clients without imposing their personal values.

“In the case of Ms. Ward, the university determined that she would never change her behavior and would consistently refuse to counsel clients on matters with which she was personally opposed due to her religious beliefs—including homosexual relationships.”

The judge said Ward’s “refusal to attempt learning to counsel all clients within their own value systems is a failure to complete an academic requirement of the program.”

2005 ACA Code of Ethics (pdf)

Personal Values

Counselors are aware of their own values, attitudes, beliefs, and behaviors and avoid imposing values that are inconsistent with counseling goals. Counselors respect the diversity of clients, trainees, and research participants.

———————————————————
A similar case is underway involving a student in the counseling program at Augusta State University in Georgia.

Eugene Volokh quotes a New Jersey case in which a Judge Payne of the Superior Court, in the course of rejecting a restraining order against a Moroccan husband, adopted the interesting viewpoint that the husband’s cultural opinions immunized him from the laws of the state of New Jersey, allowing him to inflict non-consensual sex upon his wife.

While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:

This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.

After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant’s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff’s contrary wishes.

Happily, the Appellate Court reversed, but this judicial incident is undoubtedly only the first of what will become a trend of multicultural rulings from American benches.

The correct legal precedent, IMHO, is that expressed by General Charles Napier in connection with the custom of suttee in India. Napier told the Hindoos:

You say that it is your custom to burn widows. Very well. We also have a custom: when men burn a woman alive, we tie a rope around their necks and we hang them. Build your funeral pyre; beside it, my carpenters will build a gallows. You may follow your custom. And then we will follow ours.

In the aftermath of the Swiss decision to reject the American bid to extradite Roman Polanski, the predicatable indignant editorials are beginning to appear.

Eugene Robinson, in the Washington Post, is not at all satisfied with the outcome.

It’s relevant that Polanski has never shown remorse. He claimed in a 1979 interview that he was being hounded because “everyone wants to (have sex with) young girls.” It’s irrelevant that the victim, now a middle-aged woman, has no interest in pursuing the case and reliving a traumatic episode. What matters is what Polanski admitted doing to her 33 years ago—and the fact that Polanski decided to run away rather than face the music.

Swiss officials noted the obvious: that Polanski never would have visited Switzerland if he had thought he was putting himself in legal jeopardy. Since he’s not a legitimate candidate for kidnapping and rendition by the CIA, he’s now home free—unless he somehow makes another mistake. He’ll always have to look over his shoulder.

That’s punishment of a sort, but not nearly enough. How about this: As long as he steers clear of U.S. justice, why don’t we steer clear of his movies?

I strongly disagree with the majority of the journalistic community on this one, and since I’ve already explained why at considerable length, today I plan to take pleasure in quoting myself.

The most interesting aspect of all of this is the fact that Roman Polanski’s flight thirty one years ago was precipitated by precisely the same sort of journalistic feeding frenzy which has been replayed all over again recently. A firestorm of sensationalized accounts of Polanski’s misdeed alarmed the publicity-conscious judge who intended to set aside the conventional processes of justice and overrule a plea bargain already agreed to by both the prosecution and the defense.

Polanski did not escape justice. He had already served a 42 day term of imprisonment, which was supposed to constitute his actual sentence. Polanski also settled privately with the young lady, paying her a sum of money of a specific amount never publicly disclosed. What Polanski escaped was injustice.

He escaped a breach of the normal, impartial, and objective processes of justice, which were in the process of collapsing due to official cowardice and unwillingness to resist a wave of public indignation, mischievously created by irresponsible journalism.

Long-standing cultural restraints on sexual expression and activity have been dwindling away in America for all of the last century, but one powerful prohibition not only survives, but continues to be able to turn ordinary Americans into something very much resembling belligerent Muslims bent on wiping out any stain upon the chastity of their females in blood: the issue of age.

Underage sex is still a kind of priapic third rail. And like Nabokov’s Humbert, Roman Polanski proved to be another sophisticated European gentilhomme d’un certain âge susceptible to the charms of the knowing nymphette. His sin happens to be relatively unique in being capable of getting Americans in general worked up into a lather of righteous indignation just as effectively in 2009 as in 1978 or in 1955 (the publication date of Lolita).

In exactly the same way that the idea of black sexual aggression directed at white women was once upon a time so horrifying an idea to the general community in certain American states that any close resemblance to that supreme phobia could suffice to set into motion the processes of storytelling which would fit the details of the actual case into the terrible archetype, frequently with lethal results, so too today is the idea of adult sexual aggression directed at children a compelling, and potentially dangerous, archetype.

Let’s try another literary trope. Picture Roman Polanski, not as Humbert Humbert, but as Tom Robinson, the black defendant in To Kill a Mockingbird. Just like the Polanski case, To Kill a Mockingbird features a public frenzy of indignation at a defendant accused of being a sexual aggressor toward an innocent victim, who is supposed to be protected from the advances of anyone like the defendant by powerful social taboos. Just as in the Harper Lee novel, adjudication of the Roman Polanski case revolved around issues of just who was the actual initiator and whether female consent had been given. Fearful archetypes and framing narratives can work in exactly the same in either case, can’t they?

76-year-old Roman Polanski is now again a free man.

European civilization and rationality, for once, triumphed over American mobocracy and barbarism when the Swiss Ministry of Justice took a technical route to dismiss the US request for extradition of internationally-renowned director Roman Polanski.

The Swiss had asked to examine American records establishing whether a previous plea arrangement for an observation period of confinement in a psychiatric unit had been accepted by both sides and subsequently reneged upon by a press-conscious judge. The Los Angeles district attorney’s office refused to supply the relevant records, which tends to suggest strongly that they would have confirmed the reality of the alleged plea bargain arrangement. So, the clever Swiss, noting that the records could prove that Polanski had already actually served his sentence making the extradition request invalid ruled that the extradition request was incomplete and consequently defective, and deserved to be dismissed.

US justice in this matter was, by comparison, politically-motivated featuring, in 1977 and now, public officials posing as champions of the people in the midst of a firestorm of gossip, innuendo, and public misunderstanding whipped up by an opportunistic press. The Swiss tried to do justice. The Americans tried to score points with the mob. I applaud the Swiss.

Variety

New York Times story

Previous Polanski coverage.