Category Archive 'The Law'
24 Sep 2020

Liberal Supreme Court Victories No More

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In the liberal stronghold of the Atlantic, Minnesota Law Professor Alan Z. Rosenshtein warns his fellow lefties that the time of liberal goals being legislated from the bench is drawing to an inevitable close.

[T]he Warren and early Burger Courts painted a vivid, alluring picture of what justice by judiciary could look like. And even if liberals understood, deep down, that those two decades were an aberration in American legal history, the Court has given them just enough victories since then to keep the dream alive. For lawyers and law professors, there is also the simple matter of professional vanity: If the Supreme Court is the vanguard of American justice, then judges, and thus the lawyers who argue before them and the scholars who analyze (and, when necessary, chastise) them, are the nation’s most important profession—the priests and elders of the civic religion that is American constitutionalism.

Fundamentally, though, many liberals loved the Supreme Court for the same reason they loved the law: a vision of universal harmony and justice brought about by reason and persuasion, not the brute forces of political power. Victory in the political arena is always incomplete and uncertain, not to mention grubby. Politics appeals to our baser instincts of greed and fear and competition—which, of course, is why it is so powerful. By contrast, law—whether through “neutral principles” or “reasoned elaboration” or elaborate moral theories, to name a few of the core organizing ideas of 20th-century legal theory—holds out the promise of something objective, something True. To win in the court of the Constitution is to have one’s view enshrined as just, not only for today but with the promise of all time.

But eventually liberals lost faith that the Court would interpret the Constitution in their favor. What started as a trickle of disillusionment grew throughout the 1980s and ’90s and became a torrent when Roberts became chief justice in 2005 and led the conservative wing to undermine a number of liberal legal priorities, from gun control to campaign-finance law to voting rights. Although many liberal lawyers still dutifully fight in federal court to protect rights where they can, they do so with the increasing understanding that they are simply delaying the inevitable. And legal scholars have gradually given up on the Court as a guarantor of constitutional values, advancing theories of popular constitutionalism or progressive federalism to serve as a counterweight to the Court’s conservative transformation. Whatever was left of the Court’s sacred aura as above partisan politics was ripped away by Mitch McConnell’s denial of a vote to Merrick Garland in 2016 and the bitterness of the confirmation hearings over Brett Kavanaugh two years later.

The clearest sign that many liberals are giving up their remaining idealism about the Court is that, for many moderate Democrats (not to mention those on the progressive left), court packing has gone from a fringe theory to not just a viable option but a moral imperative if Joe Biden wins in November and the Democrats take back the Senate.

RTWT

09 Sep 2020

Kyle Rittenhouse Viewed For the Left’s Topsy-Turvy Perspective

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Fuzzy, but Rittenhouse is identifiable.

The liberal Chicago Tribune strokes its chin, and pondering Kyle Rittenhouse’s chances in court, leans heavily in the direction of conviction.

Could prosecutors show that Rittenhouse, 17, of Antioch, committed an unlawful act that provoked attacks on him? If so, the law holds that he would have to show he exhausted his chances to flee or otherwise avoid being harmed before shooting, attorneys said. And whomever was the aggressor, Rittenhouse would have to show he reasonably believed he had to shoot to prevent his death or serious injury. …

Videos show that Rittenhouse was among numerous civilians armed with rifles who interjected themselves into the protests, property destruction and looting that followed Blake’s shooting. Kenosha County prosecutors have charged Rittenhouse with murder, first-degree reckless homicide and four other counts. …

Liberal commentators have argued that Rittenhouse needlessly killed two people after wading heavily armed into unrest over police violence against African Americans. New York Times columnist Jamelle Bouie wrote that, “Rittenhouse should not have been there, and we should agree — all of us — that the shooting should not have happened.”

It is interesting that liberals consider Rittenhouse agreeing to protect a friend’s business and property from looting and destruction amounts to “interjecting himself” and “[he] should not have been there,” while they seem to see no problem at all in persons rioting and committing arson being there. All the culpability for the “shooting [that] should not have happened” belongs to Kyle Rittenhouse, not to the rioters who attacked him.

Once again, we find that Leftism constitutes a systematic inversion of values and of reality.

RTWT

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Wisconsin Right Now has an interesting report bearing on the issue of provocation.

The criminal complaint charging Kyle Rittenhouse with two counts of homicide leaves out a key point: Why Joseph Rosenbaum, a convicted sex offender, was chasing the 17-year-old in the first place.

Two eyewitnesses interviewed by Wisconsin Right Now say Rosenbaum was enraged because Rittenhouse, and others, were using fire extinguishers to put out an arson fire in a dumpster that Rosenbaum, and others, were trying to push toward police squad cars.

They also believe that Rosenbaum may have been determined to rob Rittenhouse because the teenager seemed like the “weak” member of the herd and had walked off by himself. They think this because they say Rosenbaum, 36, “intricately” tied his shirt around his face, they believed to conceal his identity. Whether that would have been the case is obviously an unknown, but it was their perception.

The two eyewitnesses, Justice and Dylan Putnam, were willing to put their names to it. Videos also back up pieces of what they told us. There’s video of Rittenhouse with the fire extinguisher, video of Rosenbaum pushing the burning dumpster, and, of course, video of Rosenbaum chasing Rittenhouse down and cornering him behind a car before Rittenhouse opened fire.

“Kyle took a fire extinguisher from someone,” said Justice Putnam, who added that she saw him trying to put out the arson fire in the dumpster. “That started the altercation.”

RTWT

Wouldn’t it be hilarious to listen to a prosecuting attorney trying to argue that Rittenhouse “provoked” his attackers by trying to put out an arson fire?

02 Sep 2020

The Kenosha Shootings: A Tactical & Legal Analysis

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Commentator “Austrian” writes, at AR15.com forums:

By now the majority of you will have seen or heard of the pair of engagements in Kenosha, Wisconsin (hereinafter the “Engagements”) between one Kyle Rittenhouse and a number of other individuals, some recently departed, others now unfortunately unable to operate a keyboard with any efficiency, particularly when proper capitalization is required of their typewritten text. In the wake of these encounters it is quite something to see the degree of bad information, misinformation, and disinformation that has showered the socialinterwebsitetubes, particularly from a tactical and legal perspective.

On the tactical side, it is surprising that matters seem so distorted, since the Engagements must rank among the most comprehensively filmed deadly force CQB incidents in some years (and one of the only engagements in recent memory involving an AR system). In fact, despite the poor lighting conditions, the mobile nature of the camera operators (none, to my knowledge, trained combat photographers), and the chaos of small unit action that will be familiar to anyone who has been in the midst of it, it is possible to view the most cogent parts of the engagement in vivid detail, from multiple camera angles, and with stereo sound. On the legal side, well, many new expert commentators may lack a formal law degree, but they did stay at a Holiday Inn Express (7887 94th Ave, Pleasant Prairie, Wisconsin, 53158) and probably ordered several on-demand Better Call Saul episodes the night before the Engagements besides.

Given the sudden merger of two subjects of great interest to me, and a five hour phone call I had with an old acquaintance now an employee of the Federal Government of the United States based not far from Wisconsin, I could not but look into the Engagements more carefully. Having done so, I could not but type up my analysis. Having done so I could not but seek a forum for publication.

Rittenhouse prevailed in at least four physical encounters, at least one if not two of which involved contests for control of his weapon by larger, presumably stronger assailants. …

Legal Analysis:

Engagement 1:

Reasonable belief…

In the initial encounter with Short Bald Subject, Rittenhouse can be seen turning at least once to face the pursuing Short Bald Subject after Short Bald Subject hurled an object at Rittenhouse. In that quick turn it is possible that Rittenhouse brought his rifle barrel to bear. Short Bald Subject seems to hesitate, but continues to come on just as strong thereafter, charging Rittenhouse at full tilt. I would be at pains to articulate an argument that Rittenhouse did not reasonably believe that force was necessary to avoid a physical confrontation.

..that he faced imminent…

You don’t get a lot more imminent than an adult male charging you at full tilt, especially as close as Rittenhouse permitted Short Bald Subject to approach (1.0-1.5 meters from the look of it).

…danger of death or great bodily harm…

It is entirely reasonable, within the context of civil unrest, mob action, and a lack of any real police presence, to expect that a full on physical fight with a determined adversary will result in your great bodily harm. I would expect that Rittenhouse’s own exposure to police cadet programs and training would make this reasonable belief by him easy to establish based on what he may have learned in such programs, but anyone watching the news or even vaguely aware of the propensity for mob violence in cities facing unrest (and Kenosha in particular) would be reasonable in fearing great bodily harm or death if they are jumped in that context. Ironically, Rittenhouse’s own words in the prior video interview, that he was armed because he might have to go “into harm’s way” is a good piece of evidence vis-a-vis his state of mind at the time.

…and, that the use of deadly force is necessary to prevent said harm.

Again, Short Bald Subject was not stopping for anything. Given the video evidence of Short Bald Subject’s disposition at the Ultimate station earlier, I suspect any third party will be able to safely infer that the prison-hardened Short Bald Subject did not intend to give Rittenhouse an over-the-knee spanking. …

Engagement 2:

Reasonable belief…

In the video of the chase immediately before Engagement 2 Rittenhouse can be clearly seen looking behind him, obviously registering the number of pursuers he faced. If he had any doubts about their intentions the blow delivered to the rear of his head by White Shirt (a Misdemeanor Battery in Wisconsin) should have made them clear. When Rittenhouse fell to the ground and turned to face his attackers he had a view of at least a dozen individuals approaching him, including the four primary assailants.

..that he faced imminent…

While Red Backpack is deterred by the sight of the barrel of the rifle coming to bear and therefore receives no fire, in each of the cases where Rittenhouse used deadly force (Light Pants, Huber, Grosskreutz) Rittenhouse fires when contact is either imminent or already initiated.

…danger of death or great bodily harm…

An attempted drop kick to the head (White Pants), a skateboard-wielding assailant fighting for control of Rittenhouse’s weapon (Huber), and a handgun carrying assailant that fakes surrender to try and gain tactical surprise (Grosskreutz).

Nearby an individual with a blunt instrument held upward. A group of pursuers who had chased Rittenhouse two or three blocks already shouting out things like “Get his ass!” and who swarmed on him when he fell.

…and, that the use of deadly force is necessary to prevent said harm.

Rittenhouse’s attackers were undeterred by the presence of and then even the discharge of his weapon. Still two of them (Huber and Grosskreutz) attacked. …

Tactical conclusions:

Effective slings are essential elements of weapon retention in CQB and the correct setup is a huge equaliser even against melee encounters with larger adversaries. This is a lesson for me in particular. I have resisted sling systems in the past.

Don’t rely on firearm discharges or pointing to deter opponents determined to close distance with you.

Not that you needed reminding, but rifle stopping power is far superior to handgun stopping power. All three subjects Rittenhouse scored clear hits on were out of the fight immediately. One (Grosskreutz) melted down even though he had ample means to continue the fight. Grosskreutz is only alive today because of Rittenhouse’s amazing (perhaps even naive) restraint. I don’t know of any tactical instructor that wouldn’t counsel a follow-up shot to center mass on Grosskreutz immediately after the arm-strike.

If attacking an individual armed with a firearm do not flinch no matter what. If you commit to grappling with a rifle or pistol holder you have to see your attack through. Four larger, assailants, one armed with a blunt instrument (skateboard) and one with a handgun were unable to subdue a nearly prone Rittenhouse because they shied from the muzzle blast at key moments. Had Grosswreutz followed through with his initial charge after the fatal center mass hit on Huber, Rittenhouse would likely have been subdued.

RTWT

HT: Vanderleun.

27 Aug 2020

Contra Costa County DA Requires Officers Consider Whether a Looter “Needed” Stolen Goods Before Charging

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Jennifer van Laar, at Red State, explains what Justice as administered by minority left-wingers elected with George Soros-funding looks like.

Last week we brought you the story of Nichelle Holmes, a Deputy District Attorney in California who made social media posts proclaiming “We want more than a citation for vandalism” for the couple who painted over a Black Lives Matter mural in her jurisdiction. The office has now charged the couple with a “hate crime.”

Holmes’ boss, Diana Becton, is in her first term as elected District Attorney, one of a number of district attorneys heavily supported by lefty billionaire George Soros. Sources tell RedState that as soon as Becton took over she implemented major changes in the way the office was run and in the way crimes were charged and how aggressively cases were prosecuted. One recent change, which I’ll address further in a moment, has to do with charging people for “looting,” which is basically stealing during a state of emergency (i.e., protests or riots).

Becton is BFF’s with St. Louis’ Kim Gardner and Chicago’s Kim Foxx, who’ve been in the news for their terrible policies. This week she co-authored a Politico op-ed with Gardner, Foxx, and two other Soros-funded DA’s explaining their philosophy and 11-point plan for further ruining America’s cities.

The quintuplet started off by sharing their completely inane understanding of the origins of our justice system (apparently not understanding that criminal legal systems pre-date the colonization of North America):

    “Our criminal legal system was constructed to control Black people and people of color. Its injustices are not new but are deeply rooted in our country’s shameful history of slavery and legacy of racial violence. The system is acting exactly as it was intended to, and that is the problem.

    “We should know: We’re Black, we’re female, and we’re prosecutors. We work as the gatekeepers in this flawed system. And we have some ideas for how to fix it.”

Say what? And the fact that they’re the gatekeepers is scary as hell – not because of their skin color or their gender (wait, is gender actually a thing anymore?), but because they want to remove the blindfold from Lady Justice’s eyes.

Instead, these prosecutors place a duty to enact societal change upon their deputies and believe they must “rectify past wrongs”:

The decisions that prosecutors make can either work to rectify the inherent harms in the legal system or perpetuate them. Part of our responsibility, as elected public servants, is to be self-aware and recognize that we are part of the problem. It is our moral and ethical duty to start advancing racial equity-minded policies—and community advocates and voters should hold us accountable for doing so.

    Working from within, we have begun the steps to rectify past wrongs. We are implementing policies that include declining to prosecute minor offenses, overturning wrongful convictions, refusing to take cases from officers with a history of racial bias and expunging marijuana convictions. And we are currently working within our own offices to make the system fairer and more just.

Becton, the Contra Costa County DA, is already putting “racial equity-minded policies” in place and enforcing them in her office. The following “Looting Guidelines” document was provided to RedState by a confidential source and verified as authentic by a separate source familiar with the office’s policies. [see below]…

So, let’s get this straight. Deputy District Attorneys and/or the county’s law enforcement officers are supposed to go through a flow chart, including a psychological and financial analysis, to determine if looting charges should be filed?

This is what’s happening in the Bay Area right now.So, let’s get this straight. Deputy District Attorneys and/or the county’s law enforcement officers are supposed to go through a flow chart, including a psychological and financial analysis, to determine if looting charges should be filed?

This is what’s happening in the Bay Area right now.

And if the property owner points a gun at looters, these DAs will indict for assault.

07 May 2020

Print This And Carry in Your Wallet

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HT: Vanderleun.

01 Apr 2020

Harvard Law Professor Rejects Originalism

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Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.

He looks cherubic and harmless, doesn’t he? Well, he rejects the framers’ goal of limited government, preferring the promotion of morality and “the common good.”

He expressed his new vision of illiberal Dworkianism in a recent editorial in the Atlantic, titled “Beyond Originalism.”

Originalism comes in several varieties (baroque debates about key theoretical ideas rage among its proponents), but their common core is the view that constitutional meaning was fixed at the time of the Constitution’s enactment. This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social.

Alternatives to originalism have always existed on the right, loosely defined. One is libertarian (or “classical liberal”) constitutionalism, which emphasizes principles of individual freedom that are often in uneasy tension with the Constitution’s original meaning and the founding generation’s norms. The founding era was hardly libertarian on a number of fronts that loom large today, such as freedom of speech and freedom of religion; consider that in 1811, the New York courts, in an opinion written by the influential early jurist Chancellor James Kent, upheld a conviction for blasphemy against Jesus Christ as an offense against the public peace and morals. Another alternative is Burkean traditionalism, which tries to slow the pace of legal innovation. Here, too, the difference with originalism is clear, because originalism is sometimes revolutionary; consider the Court’s originalist opinion declaring a constitutional right to own guns, a startling break with the Court’s long-standing precedents.

These alternatives still have scattered adherents, but originalism has prevailed, mainly because it has met the political and rhetorical needs of legal conservatives struggling against an overwhelmingly left-liberal legal culture. The theory of originalism, initially developed in the 1970s and ’80s, enjoyed its initial growth because it helped legal conservatives survive and even flourish in a hostile environment, all without fundamentally challenging the premises of the legal liberalism that dominated both the courts and the academy. It enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts, appealing over the heads of the justices to the putative true meaning of the Constitution itself. When, in recent years, legal conservatism has won the upper hand in the Court and then in the judiciary generally, originalism was the natural coordinating point for a creed, something to which potential nominees could pledge fidelity.

But circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.

This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.

To be sure, some have attempted to ground an idea of the common good on an originalist understanding, taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge “moral readings of the Constitution.” Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.

Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.

Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.

RTWT

The framers were, of course, conscious that the new Republic would be composed of thirteen colonies, founded at different times by different groups of people for different reasons with differing cultures, economies, and dominant religious denominations. They were living in a time in which the disastrous European Wars of Religion loomed large in memory, and they had drawn the rational conclusion that attempts by the State to control the conscience of the individual with regard to opinion and forms of conduct not impacting others were both tyrannical and futile.

Professor Vermuele thinks otherwise. Having ascended to an eminent position in the modern academical meritocratic order, he considers himself wiser than Madison, Jefferson, Washington, Franklin, and the other framers, and he obviously believes his own contemporary apprehension of morality and “the common good” is better than theirs, and superior as well to that of the 330 million other living Americans whom he is prepared to instruct and coerce.

Personally, I am no more interested in being ruled by Platonic Guardians of the Roman Catholic Integralist bent than I am by being ruled by bien pensant left-wing sophisters like the late Ronald Dworkin.

15 Nov 2019

Indiana Is Clearly Still Part of the Real America

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Judges Andrew Adams, Sabrina Bell and Bradley Jacobs.

NPR describes an unfortunate situation involving three Indiana judges where things got a bit out of control that might happen to anyone:

Back in May, three Indiana judges got into a fight. It was the crescendo of an incident brimming with colorful details: a gaggle of judges drinking the night before a judicial conference, a failed attempt to visit a strip club called the Red Garter, a brawl in the parking lot of an Indianapolis White Castle.

The altercation apparently started sometime after 3 a.m., when one of the judges, Sabrina Bell, raised a middle finger at two men yelling from a passing SUV, and ended after one of those men shot two of the judges.

In between, the three judges took a number of actions that “discredited the entire Indiana judiciary,” according to an opinion posted by the Indiana Supreme Court this week, suspending the judges.

The court found that the three — Andrew Adams, Bradley Jacobs and Sabrina Bell — had “engaged in judicial misconduct by appearing in public in an intoxicated state and behaving in an injudicious manner and by becoming involved in a verbal altercation.” Adams and Jacobs engaged in further judicial misconduct “by becoming involved in a physical altercation for which Judge Adams was criminally charged and convicted.”

The document lays out the events as soberly as possible, but the details remain spicy:

    “While in town to attend a statewide educational conference for judicial officers, 10 hours before the program convened, Respondents walked the streets of downtown Indianapolis in a heavily intoxicated state. When Judge Bell extended her middle finger to a passing vehicle, neither Judge Adams nor Judge Jacobs discouraged the provocation or removed themselves from the situation.”

The three had ended up at a White Castle after trying to go to a strip club at 3 a.m. and finding it closed. A fourth judge went into the White Castle, while Bell, Adams and Jacobs stood outside.

Two men in the passing vehicle, Alfredo Vazquez and Brandon Kaiser, parked their car after the gesture from Bell.

Bell and Vazquez traded further insults. A physical altercation ensued among the four men, with Adams and Vazquez allegedly hitting and kicking each other as Jacobs and Kaiser wrestled on the ground. Kaiser then allegedly pulled a gun and shot Adams once in the stomach and Jacobs twice in the chest.

Adams and Jacobs were both seriously wounded and required emergency surgeries; Jacobs was hospitalized for two weeks.

Bell tried to stop the fighting by pounding on the door of White Castle for help and calling 911 once shots were fired.

While at the scene, Bell was recorded on video telling police detectives something akin to “I feel like this is all my fault,” though the opinion notes that Bell “was intoxicated enough that she lacks any memory of the incident.”

Kaiser, who allegedly shot Adams and Jacobs, has been charged with 14 crimes related to the brawl, including four charges of felony aggravated battery, according to The Indianapolis Star.

The court suspended both Jacobs and Bell for 30 days without pay. Adams, who pleaded guilty in September to one count of misdemeanor battery, is suspended for 60 days without pay. He was sentenced to 365 days in jail but was required to serve only two.

In the White Castle incident, the court said, the three judges “gravely undermined public trust in the dignity and decency of Indiana’s judiciary.”

RTWT

11 Jun 2019

Attorney Advertises

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30 Apr 2019

Good News: Judge Rules Confederate Statues Protected By State Law

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Statue of Lee removed from Charlottesville, VA park.

CBS19:

Charlottesville Circuit Judge Richard Moore has ruled that the statues are war monuments, which are protected under state law. That likely means the city doesn’t have the legal right to take them down.

In his nine page ruling, Moore cites the fact that both Robert E. Lee and Stonewall Jackson are depicted in their military uniforms and on horses associated with their time in the Civil War.

“I believe that defendants have confused or conflated 1) what the statues are with 2) the intentions or motivations of some involved in erecting them, or the impact that they might have on some people and how they might make some people feel,” Moore writes. “But that does not change what they are.”

Moore finds the issue to be so clear-cut that “if the matter went to trial on this issue and a jury were to decide that they are not monuments or memorials to veterans of the civil war, I would have to set such verdict aside as unreasonable…”

The lawsuit was filed after Charlottesville City Council voted to remove the statue of Lee in early 2017. City councilors Mike Signer, Kathy Galvin and Wes Bellamy are named individually for their roles in that vote, as are former councilors Bob Fenwick and Kristin Szakos.

While legal analysts have said this ruling could sink the city’s defense, Moore notes that this ruling doesn’t guarantee the plaintiffs will prevail.

He still has several other motions under consideration.

Plaintiffs spokesperson Buddy Weber says plaintiffs are pleased, but also cited the remaining motions as questions that still need to be answered.

In an email, city spokesperson Brian Wheeler says the judge now has to decide whether the city has to pay damages and attorneys fees and whether that question will go to trial in September.

In his ruling, Moore writes that he hopes to rule on remaining motions in the next month.

13 Mar 2019

Unethical Certainly, but a Federal Crime?

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The Hartford Courant pays special attention to the Yale angle.

The former women’s soccer coach at Yale University and a Greenwich lawyer are among 50 people who have been indicted in a vast college admissions scam the government says was carried out by unscrupulous college officials, a crooked admissions consultant and wealthy parents willing to pay bribes to get their children into some of the nation’s top universities.

In a conspiracy engineered by California businessman William “Rick” Singer that extends from elite schools to celebrities and wealthy executives, parents spent anywhere from $200,000 to $6.5 million to guarantee their children’s admissions to elite schools, said Andrew E. Lelling, the U.S. Attorney in Boston.

The college admissions system was rigged against students who worked hard, got good grades and engaged in community service who sought admission to elite colleges and universities, Lelling said Tuesday in announcing the indictments. The FBI called the investigation “Operation Varsity Blues” and said about 300 FBI and IRS agents arrested 46 people on Tuesday.

In addition to Yale soccer coach Rudy Meredith, 33 parents were indicted for their role in the scheme, Lelling said. They include the actors Felicity Huffman and Lori Loughlin, CEOs, and others, such as Gordon R. Caplan of Greenwich, co-chairman of the global law firm Willkie Farr & Gallagher LLP in New York. Caplan has not responded to a request for comment.

“All of them knowingly conspired with Singer and others to help their children either cheat on the ACT or Sat and or buy their children’s admission to elite schools through fraud,” Lelling said.

“There will not be a separate admissions system for the wealthy,” Lelling said. “And there will not be a separate criminal justice system either…“

Bribes were paid and frauds committed to gain admission for students to colleges such as Boston University, Yale University, Boston College, Northeastern University, Georgetown University, the University of Southern California, the University of California San Diego, the University of California Los Angeles, Wake Forest University, Stanford University and the University of Texas at Austin.

Lelling said it would be up to the colleges and universities who were the victims of the alleged frauds to determine what, if anything, to do with the students admitted under what the government says were fraudulent circumstances.

The government called Singer, 58, of Newport Beach, Calif., the mastermind of the scheme. He ran a college counseling and preparation business called The Edge College and Career Network LLC, which was known as The Key, and the nonprofit Key Worldwide Foundation, which the government says was nothing more than a sham organization that laundered the millions Singer’s company took in. Singer, who cooperated with federal agents during the investigation, was expected to plead guilty Tuesday to racketeering conspiracy, money laundering and other crimes.

In once instance, according to the court documents, Singer accepted a $1.2 million payment from a parent to secure a students’ admission to Yale.

More parents could be indicted as the investigation continues. …

“As the indictment makes clear, the Department of Justice believes that Yale has been the victim of a crime perpetrated by its former women’s soccer coach,” Yale spokesman Thomas Conroy said Tuesday. “The university has cooperated fully in the investigation and will continue to cooperate as the case moves forward.”

The government said it was tipped to the scheme while in the midst of an unrelated investigation.

There were three elements to the scheme: bribing SAT or ACT exam administrators to allow a person to secretly take the test in the place of a student, or to correct the student’s answers; pay bribes to university athletic coaches and administrators to have students admitted under the guise of being recruited as athletes, and using the facade of Singer’s charitable foundation to launder money and pay bribes. Some would then deduct on their taxes payments made to the phony foundation.

Longtime Yale coach Rudy Meredith, who resigned in November, is accused of accepting a $400,000 check from the family of a Yale applicant he ensured would be admitted to the university as part of the women’s soccer team, according to court documents. Meredith, who is accused of working in concert with Singer, has agreed to plead guilty to wire fraud, honest services wire fraud, and conspiracy and has been cooperating with the government’s investigation since April 2018 with the hope of receiving leniency when he is sentenced, according to the government.

“Beginning in or about 2015, Meredith agreed with Singer and others known and unknown to the United States Attorney to accept bribes in exchange for designating applicants to Yale as recruits for the Yale women’s soccer team, and thereby facilitating their admission to the university, in violation of the duty of honest services he owed to Yale as his employer,” according to court documents.

The applicant’s family paid Singer and his associated businesses about $1.2 million as part of the scheme, according to court documents.

That applicant did not play competitive soccer and Singer is accused of preparing a phony athletic profile to be used during the admissions process that made the student appear to be a co-captain of a prominent club soccer team in southern California.

Meredith agreed to secure a spot at Yale for another applicant in exchange for $450,000 from the applicant’s father, according to court documents.

The two men are charged with conspiracy to commit wire fraud and wire fraud.

“The corrupt behavior alleged by the Department of Justice is an affront to our university’s deeply held values of inclusion and fairness,” Yale President Peter Salovey wrote in a letter to the university community Tuesday. “I am committed to making certain the integrity of the admissions and athletic recruitment processes is not undermined again.”

“As the investigation unfolds, the university may take further actions. I will work closely with our athletics director and dean of undergraduate admissions to make any necessary changes to protect the university from the kind of criminal behavior the Department of Justice described today,” Salovey said.

Meredith, who lived in Madison, resigned from Yale in November and said he was leaving to after 24 years “to explore new possibilities and begin a different chapter in my life.”

Caplan, the Greenwich resident and lawyer in New York, is accused of paying Singer to help his daughter achieve a top score on the ACT, a college entrance exam, by having her purport to have a learning disability.

Caplan paid $75,000 last December to ensure that his daughter would get the desired score on the ACT, according to the indictment.

RTWT

$1.2 million to get into Yale? All I can say is: Wow!

Apparently, earlier this morning, in one of those disgraceful and utterly unnecessary dawn raids, Felicity Huffman was arrested by FBI agents with drawn guns!

Donald Trump really ought to put a stop to unnecessary dawn arrests and unnecessary displays of federal force. This kind of thing is patently an abuse of authority.

Reading about this scandal for the first time yesterday afternoon, I was, like most of America, I expect, basically amused. Parental desperation and excessive ambition is really a theme for comedy. Everybody knows perfectly well, after all, that representatives of the Kennedy and other dynasties, however lacking in intellectual orientation and however delinquent, get automatic entrée into Harvard.

Everybody knows that standards for representatives of minority victim groups are dramatically lowered, while standards for model minority Asians are dramatically raised. Everybody knows that there will be a large thumb on the scale in favor of the scion of plutocrat alumnus that paid for the University’s new science laboratory.

Life is not entirely fair.

Of course, bribing soccer coaches and cheating on tests is obviously wrong, and a number of schools and national testing services ought to be embarrassed, but I have trouble myself seeing just where the FBI and the IRS come into this.

Have we really reached the state of affairs in which every piece of chicanery, every payoff, every case of cheating is a FEDERAL CRIME?

Felicity Huffman was arrested for “conspiracy to commit mail fraud and honest services mail fraud.” Singer and Meredith are accused of “wire fraud, honest services wire fraud, and conspiracy.” Are wire fraud and mail fraud different or exactly the same thing? Who knows? Where did the mail or the telephone or telegraph come into any of this anyway?

Are we supposed to assume that because Felicity Huffman’s daughter’s college application was mailed, or emailed, in, and Felicity paid for some cheating on her daughter’s tests, that made it mail or wire fraud and brought the whole affair under federal jurisdiction?

This sounds to me exactly like the cases of federal authority brought under the principle of federal jurisdiction over Navigable Waterways and applied to some guy’s backyard that has seasonal rain puddles.

24 Aug 2018

Paying Off a Mistress Does Not Violate Campaign Laws

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Mark J. Fitzgibbons identifies 17 million reasons.

President Trump’s disgraced former personal lawyer, Michael Cohen, copped a plea deal on Tuesday in the U.S. District Court in Manhattan that includes his making a criminal campaign contribution in the form of hush money to Stormy Daniels.

Mark Levin and former chairman of the Federal Election Commission Brad Smith discussed this “non-crime” on The Mark Levin Show Tuesday night. Levin correctly points out that Cohen pleaded guilty to “a non-existent crime.”

Brad Smith later tweeted, “No matter how you cut it, paying blackmail to an alleged mistress is not an obligation that exists because you are a candidate, and hence not a campaign expenditure.”…

If in fact legal settlements of personal matters are illegal campaign contributions, then the list of guilty politicians certainly is long. And, as we learned in 2017 about the sexual harassment settlements paid by Congress using a slush fund from taxpayer dollars, the leaders in the House of Representatives of both political parties are implicated by the $17 million in payments over a period of 20 years and at least 268 settlements.

The Deep State is indeed acting like the Star Chamber, getting people to confess to nonexistent crimes to help ensnare others for political reasons.

14 Jul 2018

“There Oughta Be a Law!”

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The Atlantic quotes Professor Stephen L. Carter warning that those who favor the creation of new laws should always consider in the process the violence inherent in enforcing them.

Law professors and lawyers instinctively shy away from considering the problem of law’s violence. Every law is violent. We try not to think about this, but we should. On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.

The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.

But all of us should.

RTWT

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