Monday, April 21, 2014

LAW DAY SPEECH 4/22/2014: American Democracy and the Rule of Law: Why Every Vote Matters"

A.C.O.R.N. was an organization dedicating to registering new voters- until it got caught up as the victim in one of the biggest political hoaxes of the 21st century.

The ABA today announced the theme for the 2014 Law Day. In recognition of the approaching 50th anniversaries of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the theme "American Democracy and the Rule of Law: Why Every Vote Matters" calls on every American to reflect on the importance of a citizen’s right to vote and the challenges that remain to ensuring all Americans have the opportunity to participate in our democracy."

IMAGINARY VOTE FRAUD:

Six years ago I attempted to make a bet which, had it been taken up, would have netted me ten million dollars. What was the bet?

How many of you have heard something in the news during the last 10 years about States- including Georgia- enacting strict new photo ID laws for voters? Why, you ask, is it that when we can't get legislatures to pass needed legislation, did so many States take the time and trouble to enact laws- including photo identification requirements for otherwise validly registered voters- that make it harder for people to register, and harder for registered voters to cast their ballots?

It hasn't just been photo identification laws which will restrict the number of otherwise eligible voters to vote: laws have been passed in several states which have restricted early voting. Some States have made it more difficult for convicted felons who have completed their sentences to have their voting rights restored. Other states have made it more difficult for groups such as students to vote in the towns where their colleges or universities are located. The State of Texas allows persons to get a concealed firearm carry permit with forms of identification that are not allowed at the polls- including student ID's with photos.

So what was my would-be ten million dollar bet? I offered that bet during the weeks before the 2008 presidential election, when there were national outcries of rampant voter fraud, when the Republican presidential candidate, John McCain and right wing commentators were howling that a liberal community get out the vote organization, A.C.O.R.N. was trying to steal the election. ACORN stands for: "The Association of Community Organizations for Reform Now." It once was the nation's largest organization working for social justice and stronger communities- but it died in 2010, after it had become a symbol of rampant voter fraud.

There was just one problem with the stories about ACORN stealing elections via voter fraud: they were all made up. Completely. One story that made headlines had to do with independent contractors working for ACORN in Nevada who were collecting money from ACORN for registering non-existent people to vote, including members of the Dallas Cowboys football team. The contractors would turn in their lists to ACORN, which would then pay them a set price for every new voter registered. That sure sounds like fraud, doesn't it? But think about it: who was the victim of the fraud? Did any of those fictitious voters- like someone pretending to be Dallas Cowboys quarterback Tony Romo- who was actually registered by the contractor- show up to vote in Nevada's election? Not hardly. The victim of the fraud was ACORN itself- it was paying people to register real human beings as voters, but instead they were registering fictitious people who never showed up to vote in the election.

So my bet was this- and I fervently hope that the next time a government official tells you that we need photo ID to curb rampant voter fraud, some one will offer the same bet to him or her: if more than 10 people in the entire country show up to vote under another person's identity, for the 11th person and every person after him in the United States who shows up to vote at the polls in the 2008 presidential election who votes under another persons' name, I will pay $1,000.00: but only if you will pay me one million dollars for every number less than 10. In other words, if only 9 people voted under another person's name, I would get one million dollars. 8 people, two million. And so on down to 0- where I would get 10 million dollars.

There were almost 130 million votes cast in the 2008 election: 69,498,516 for Barack Obama and 59,948,323 for John McCain. Care to guess how many of those votes were cast by persons at the polls using another person's name? That's right: ZERO. I could have picked up a cool $10 million if any of the fear and hate mongers crying about "vote fraud" had the guts to take up my bet.

So the next time you hear a pundit or a politician using the phrase "voter fraud," look hard at them and ask yourself: what does this person have to gain by suppressing the votes of legitimate voters who are least likely to carry a photo ID? The answer is probably that the legitimate voters whose votes they suppress are more likely to vote for the other side, and by suppressing enough votes they hope to steal a close election their side would otherwise have lost.


MONEY IN POLITICS:

Two recent decisions of the United States Supreme Court have been cited as having a huge- and negative impact- on money in politics.

CITIZENS UNITED v. FEDERAL ELECTION COMM'N, 558 U.S. 310 (U.S. 1-21-2010)
and
McCUTCHEON v. FEDERAL ELECTION COMMISSION, 12-536 (U.S. 4-2-2014)

There are two themes of these cases: Citizens United decision decided that corporations are people, too. They get First Amendment freedom of speech protections from government regulation. Here is the essence of that decision: "The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether."

The McCutcheon case did not have to do with corporations: it had to do with overall spending limitations by persons wanting to give money to a number of candidates running nationwide, rather than restricting their financial contributions to a few. Here is what the Court said: "Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U. S. 1, 26-27. It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others."

Here is my question: how many of you cast a vote in an election for federal office- Congressman, Senator, President- based on the amount of money spent on the candidates? Is there any amount of money spent on advertising, on flyers, on yard signs, or door bell ringers, that would get you to change your cherished principles and vote for the other guy- or lady?

Put another way, how many of you think that you can be flimflammed by sleazy ads that characterize your candidate in the most unflattering light possible? The answer is that the more that voters are ignorant of the actual character and the actual record of candidates- the attackees and the attackers- the more influence money has on elections. The more that you know- the more that you take the time to be informed- the less influence money can have on your vote.

I HAVE A SIMPLE SOLUTION to the money in politics problem: simply allow every candidate attacked in any radio or television ad to preview it, then film or record a response, twice as long as the first, that will air free of charge immediately following the attack ad. In one stroke, the power of money to influence elections will be reversed- like a judo move that uses the attacker's force against him. Every unfair attack ad will be unmasked immediately. No need for the attacked candidate to rush out to raise money to respond to unfair attack ads. The wealthy opponents- whether corporate Political Action Committees, called PAC's, or superwealthy billionaires like Las Vegas casino magnate Sheldon Adelson or the infamous Koch brothers, Charles and David, will be providing their opponents with double the bang of the bucks they spend trying to buy an election.


EVERY VOTE MATTERS:

Fourteen years ago this country had a presidential election between two major candidates and one third party candidate whose presence in the race may have altered the course of modern American history. Before that election in November of 2000, it was a common occurrence to hear people say: what does it matter who is elected? No matter which candidate- the Democrat or the Republican- wins, my vote won't matter. Both parties are the same, and nothing changes in Washington no matter who takes office.

That election, however, proved that who wins does matter. At the time of the election, we were at peace, we were running a surplus, and hard as it is to believe, the biggest issue in the 2000 election was how we were going to spend the surplus- paying down the national debt, shoring up Social Security and Medicare, or in tax cuts.

A few votes- 537- in the State of Florida- decided the 2000 election.

George W. Bush (W) 2,912,790 Republican
Al Gore 2,912,253 Democratic


So please remember: your vote counts, as do the votes of your friends, your family, and your neighbors. Our country does not ask much of us- show up for jury duty, pay our taxes, stop for red lights. We don't even have a draft anymore. So getting up on election day- or one of the early voting days leading up to it- and trucking down to the polls to do your civic duty should be a no brainer.

THANK YOU.

Sunday, April 06, 2014

Questions for candidates



If you are attending any candidate forums, either as a panelist or a citizen, you might want to borrow one of these questions to ask to determine whether the person running has: (1) common sense, and (2) the courage to express a sane, yet unpopular, opinion.

(1) What action, if any, would you take to make a public option available to any American who wants health insurance but not from the private sector? Put another way, are you in favor of Medicare for all- that is, allowing any American to sign up for Medicare, regardless of age, so long as they pay the additional annual cost to the government for their coverage , and if not, why not?

(2) Would you favor legislation to remove medical malpractice suits from the tort system, converting all claims for damages or injuries from medical providers (doctors, hospitals, pharmaceutical companies, etc.) to a no fault system that would provide compensation to all victims, regardless of fault, and which would eliminate all medical malpractice insurance premiums for physicians, hospitals, and drug companies?

(3) Are you for or against requiring mandatory electronic locks on all firearms so that they can only be used by the legal owner of them?

(4) Are you for or against mandatory background checks for all firearm purchases to keep them out of the hands of persons convicted of violent crimes and out of the hands of the mentally ill?

(5) Are you in favor of ending the legalized bribery of public officials by prohibiting all offers of money to political candidates and by substituting mandatory public financing of electoral campaigns?

(6) Would you support a law that would allow any political candidate attacked in a radio or television ad to be able to preview the ad before it airs, then have free air time to respond that would run immediately after the attack ad?

(7) Would you support a law that would end the immunity of all governments whose employees cause injury- either deliberately or through negligence- to American citizens?

(8) Would you support a law that would prevent the deliberate government killing of human beings without charges being brought and a fair trial, except in self defense or on the battlefield against uniformed combatants after Congress has declared War?

(9) Would you support a law that would prohibit the warrantless interception of any and all communications by or to American citizens?

(10) Would you support a law which would end a secret court in the depths of the Justice Department and which would require public hearings or trials in all case involving American citizens?

(11) Do you support a rules change in the United States Senate to end all filibusters and all holds on nominations?

(12) Would you support federal legislation, call it the "Dave" law (for the movie of that name starring Kevin Kline), that would make the government the employer of last resort, so that any American who wants to work would have a job available to him or her, thus ending all involuntary unemployment?

(13) Would you support a fiscally neutral (the Federal budget would not increase or decrease) revision to the Federal tax code that would substitute direct payments for all credits and deductions?

(14) Would you support revising the tax code to treat all income the same- that is, capital gains, interest income, rental income, and so forth, would all be taxed at the same rates and would all be subject to Social Security and Medicare taxes?

(15) Would you support making both Social Security and Medicare more financially stable by removing the cap on income subject to Social Security and Medicare taxes and, for all persons under 65, means testing both Social Security and Medicare?

(16) Are you for or against permitting persons of the same gender to marry? Why?

(17) Are you for or against decriminalizing marijuana? Why?

(18) Would you support a Constitutional amendment to make all judicial appointments, from the Supreme Court on down, for 10 years instead of for life?

Sunday, January 26, 2014

ADVICE TO A SENATE HOPEFUL: MICHELLE NUNN


The seal on the podium says "President of the United States" Is this a foreshadowing for U.S. Senate candidate Michelle Nunn?


Ms. Michelle Nunn
Atlanta, GA

Re: your efforts to secure the Democratic nomination for the United States Senate

Dear Ms. Nunn:

I was recently invited to an event held in Albany to meet you and to contribute to your campaign. That was the first I became aware that you were a candidate for the seat in the United States Senate currently occupied by Saxby Chambliss. Curiosity caused me to check your website (where I learned nothing about you or any possible ideas or proposals you have), to read archived news stories about your history, and to watch the Lori Geary interview footage posted by Jim Galloway of the Atlanta Journal-Constitution. It was immediately obvious from the way you responded to Ms. Geary's "gotcha" question "have you ever voted for a Republican" that you either are politically astute or that you have excellent advisers and the ability to absorb their lessons to avoid common pitfalls in political races. You realized that if you answered the question, no matter what else you said during that interview, the sound bite- and headline- would be that you had voted for a Republican. From my limited information about you, it appears that you handle yourself well on camera and that you have a reasonable prospect of winning a state wide race in a fair environment. I'm not tuned into Georgia politics, but I would guess that your opponent would most likely be Congressman Jack Kingston.

However, politics isn't fair. And your opponents will do their best to define you, as Ms. Geary noted, by describing you as a "huge liberal," a "leftist" for "MoveOn.org", and as "another vote for the liberal agenda of Senate Majority Leader Harry Reid" (I'm paraphrasing here).

My sense is that many if not most voters do hanker for political leaders who will tell them the truth- but that they don't want uncomfortable truths that come without simple and effective solutions. I also think that a really good idea- one that would work, that attracts voters across party lines, that is unique- will do a lot to take you out of the realm of politics as usual that cause most voters to tune out politicians' messages and promises and to pay more attention to the negative attack ads that, sadly, have come to define modern American politics.

I'd like to take a moment and give you some examples. If this letter reaches you, and if, after reviewing my suggestions, you would like to have a conversation or exchange correspondence, my office information is on the letterhead.

HEALTHCARE REFORM: Three simple words: "Medicare for all." Otherwise known as "the Public Option." However, to avoid the pitfall of Republicans attacking big spending Democrats who want to force people to purchase health care they don't want, add the following caveats: there will be no individual mandate to purchase health care coverage (the call for repeal of that provision alone will remove that arrow from the opponent's quiver in a general election) , but coupled with repeal is a provision that any person under 65 who wants to opt into Medicare can pay a monthly premium equal to the incremental cost to the United States government for adding one more person to the Medicare rolls. In other words, it will not cost taxpayers one cent.

This will take the "Obamacare" argument (a possible albatross, based on the amount of lying and gross exaggeration that will continue after the program is more fully implemented) and turn it around against Republicans. Their biggest arguments are against the individual mandate and against the additional costs to taxpayers. In one stroke, you have taken both of those off the table, yet created a better system by adding a public option at no cost to taxpayers. You will leave a Republican opponent arguing that insurance companies should once again be allowed to deny coverage for pre-existing conditions, refuse to renew policies, and have a life time cap that will throw people into bankruptcy. As I once put it: Republicans want parents of a dying three year old girl to have to put out penny jars in restaurants to raise the funds for their child's life saving operation. That's a visceral image that makes them very uncomfortable- yet it is accurate, and most voters remember seeing those jars in restaurants and receiving fund raising letters to try to save a child's life.

MEDICAL MALPRACTICE REFORM: A little over 9 years ago, the Fulton County Daily Report ran a guest column I wrote in which I suggested a plan to eliminate all medical malpractice insurance premiums for physicians, hospitals, and pharmaceutical companies, and replace it with a no-fault, workers compensation program. It's a no lose proposition for everybody. When I suggested it during a live debate in 2004 at the local Atlanta ABC station, a physician in attendance working for another candidate (Mary Squires) was so enthusiastic that he told me he wished he had two votes in the primary so that he could cast one for me. Here's a link to a website where I posted a similar article. (Note that Sanford Bishop also liked the idea, but Congressional Democratic leaders weren't so enthusiastic back in 2009 when they still controlled the House.) http://buildabettermousetrap.blogspot.com/2010/01/eliminating-medical-malpractice.html
The original article ran at: http://buildabettermousetrap.blogspot.com/2005/02/medical-malpractice-insurance-crisis.html

GUNS, GUNS, GUNS: I listened to you tiptoe around the gun control issue by mentioning that your mother carries a 20 gauge shotgun around. Word of advice: the mental visual on that is not pretty. And it's irrelevant to insane people taking weapons with large clips into public places and committing mass murder. Most people just want to be safe- and many think they are safer if they carry a gun. Never mind that statistics show that people are twice as likely to be killed with a firearm if they own one, and about four times more likely to commit suicide if they have a gun in the house. It's kind of like the old seat belt debate- Americans didn't want to be told to strap in, because they had a vision of being thrown clear (not through their windshield) in the event of a wreck. Never mind that they are 100 times safer in a wreck if wearing a seat belt. My suggestions are to take the gun owners at their word- that they are safer with their guns, but require that all guns come with a technological lock (it was featured in the latest James Bond film, but has been written about long before) that will make it impossible for anyone but the owner to actually fire it. In one fell swoop, that reduces or eliminates gun thefts and accidents with small children. As for background checks- don't back down on that one. A huge majority of Americans want to keep guns out of the hands of criminals and the mentally unstable. Use the argument that we require tests and licensing to drive cars, which are dangerous machines, and we don't let children, drunks, or people with suspended licenses drive on the highways. Somehow we managed not to lose our freedom with those sensible restrictions. We should do no less for firearms- require people to pass regular tests and demonstrate their physical and mental ability to "operate" a firearm. And if it is in question, give them an opportunity for a fair hearing, just like we do in driver's license suspension hearings.

IMMIGRATION REFORM: point out that we need to be able to collect taxes from the illegals in this country who work but who don't file federal tax returns. The easiest way to do this is to issue green cards (not citizenship) for long time illegal residents, but to require that they file tax returns for the years they were already here and to pay any back taxes owed (but give them time and a payment plan so that it isn't a ticket back to Mexico- or Canada). Most illegals don't want citizenship- they just want to be able to live here legally and without fear of deportation. De-couple this reform from citizenship to avoid the argument that Democrats are just trolling for votes from non-English speaking illegal citizens (somehow, Canadians are never mentioned in this argument, but just for fun, I wish one debate would feature a focus on English speaking immigrants from Canada taking away American actors' jobs in the television and film industry- like Lorne Greene, who was Ben Cartwright on Bonanza, or William Shatner, Captain Kirk of Star Trek.)

NATIONAL SECURITY AND PRIVACY: I'm confounded that the Tea Party and the Republican Party (not co-equal) haven't been all over the issue of protecting ordinary Americans' privacy from the pervasive snooping of the NSA. It would fit right in line with their other diatribes against Big Government trying to control their lives- i.e., on gun background checks. So co-opt this issue. Go all in (or all out- it means the same thing) on reinstating Fourth Amendment protection from the big bad government. There is a warrant requirement, based on "Probable Cause," enshrined in the Bill of Rights. Let's resuscitate that antiquated notion. There's no downside to this argument, especially if you borrow the language of the anti-government zealots of the right wing, but apply it to people's right to be left alone by their government if they are doing nothing wrong. And don't forget to mention how much it is costing taxpayers to build that huge storage facility in Utah to house all of that useless data.

GOVERNMENT SPENDING: I've found that people rarely object to government spending on something tangible that they like. For example, they like being able to drive on highways without pot holes, and they don't mind paying a dedicated gasoline tax to build and repair highways. So take a subject- such as care for disabled veterans, and tie it to a tax the Republicans are trying to kill. Three of them are taxes on lazy rich people: the estate tax ("death tax" in Frank Lundz speak) which isn't a tax on the dead who earned the money, but on their ner do well heirs (think- Paris Hilton) and dividends and capital gains. Tie those specific taxes- every dollar collected- to projects that no sane politician would ever oppose. You won't find any shortage of subjects: life saving operations for children; medical care for veterans, and so on.

JOBS, JOBS, JOBS: Every candidate talks about creating jobs, and the Democrats and Republicans differ only on means, not the end. Republicans want to give a lot to the rich and let the trickle down effect help the less fortunate. Democrats want to use tax credits, tax deductions, and some large spending programs. I'd like to see how a candidate would be received who would simply propose that we allow every unemployed person who wants to work but can't find it in the private sector to get a public works job (have you seen the Kevin Kline movie "Dave?"). Fund it through a dedicated tax on luxury items- i.e. top tier cars, mansions, yachts, and estate taxes on the super rich. Turn that trickle into a more substantial torrent.

That's about it for the moment.


Sincerely yours,



James Finkelstein


Tuesday, December 24, 2013

PERSON OF THE YEAR: EDWARD SNOWDEN

One knows not what effect writing cogently about contemporary crises will have on our society, but if a butterfly flapping its wings in the Amazon can spawn a hurricane (typhoon)in the Southwest Pacific, then perhaps these ruminations can have a salutary effect on the body politic. Which is a fancy Ivy League way of saying: I hope this makes a difference, however slight.

So towards that end, my nominee for my Person of the Year is Edward Snowden. Because for the last few decades, the huge boulder rolling downhill, crushing human rights, civil liberties, and democracy, carries the combined weight of the government and near government institutions whose raison d'etre is to bleed us of our money and to keep us afraid, unthinking, and panicky, in order to keep us from questioning why everything we were taught in grade school about the Revolutionary War, freedom, and the Bill of Rights, is as discardable as used Kleenex. Most everyone has heard of Eisenhower's farewell speech in which he inveighed against the dangers of the Military Industrial Complex- and that was at the end of the 1950's, the decade which modern "Conservatives" revere as the apex of American culture and all that was good and right with our country. However, until the end of the 20th century and beginning of the 21st, that complex really hadn't taken over all branches of our government in anywhere near the extent that has become, sadly, unremarkable as we near the end of 2013. So when it's revealed that the NSA is constructing a vast building costing billions out in the nether regions of the Rocky Mountains, built just to store all of the secrets and data being stolen in plain sight from our private lives, ("metadata" it is called, as if that makes any difference linguistically from mere "data" which is the plural of "datum") it barely stirs a yawn-- not even among the fruitcake Tea Party activists who howl at the moon when a man of African ancestry tries to make sure their children won't die for lack of a doctor, the NRA warriors who scream bloody murder if their banana clips have to hold fewer than 30 rounds of high velocity ammunition, and barely a peep from the people who used to storm the barricades at the evil machinations of "The Man."

So here we are at the end of 2013, when we reveal our innermost selves via Text or on Twitter and Facebook, but still cling to a few vestiges of privacy, and anything good that happened this year in the area of Civil Liberties, anything that attempted to stem the flood waters pouring through and over our leaky dams of the Bill of Rights- you know, the Fourth Amendment and such- came because of one person with a conscience: Edward Snowden. The rogue former NSA contractor who decided that what was happening was just too much. Kind of like a modern day real-life Norma Rae, who rallied the textile workers in North Carolina in the Sally Field film an eon ago.

So, Edward: here's to you, my Person of the Year. Perhaps a Senator, Congressman, or journalist besides the unmatched Glenn Greenwald will take up your torch and keep the flame of liberty from being snuffed out. Now there's a metaphor to end this reflection. Peace on Earth, good will towards all.

Sunday, November 10, 2013

LET'S GIVE THE TEA PARTY WHAT THEY ARE ASKING FOR (BUT IT'S NOT WHAT THEY REALLY WANT)


During the hullabaloo about efforts to kill"ObamaCare," the website glitches, the costs of health insurance, the loss of some health insurance policies, it seems that there is a complete whiff on the part of most of the media- with a few notable exceptions- when it comes to perception of the problem. The problem isn't that ObamaCare is a socialist trainwreck which is government tyranny at its worst- that accusation is the exact opposite of the framework of the program, which as President Obama pointed out in the 2012 presidential campaign, was Massachusetts' Romney Care taken nationally. Without question it is private enterprise funded by government subsidies, and rational thinkers tear their hair out when they are confronted with the abundant ignorance of mainstream media talking heads who parrot the Tea Party line without ever challenging the basic assumptions of "fact."

ObamaCare does not take a single private entity and "socialize" it- there was no creation of a national health service which took over the employment of physicians and made all private for profit hospitals into public hospitals operated by and funded by governmental entities.

Which begs the question: if we do have a public, social, program, funded solely by the government with no private participation, and if it works, and if there are no glitches in signing people up for it, and if it is more than 50 years old and no sane Republican would dream of trying to dismantle it or privatize it (notice the modifier "sane" before the word Republican), then why don't we just trash the whole Rube Goldberg Obamacare machine with all of its unnecessary moving parts, and instead let more people into the one program that actually works? Of course, that would be Medicare- not Medicaid, which depends on State participation.

We need to scrap Obamacare- or, in the present climate, put the Republicans on the spot and get them to vote to repeal the mandate portion of the law, and replace the mandate with a public option to allow any person to opt into Medicare, charging a very low introductory amount, and slowly phasing Medicare into a means tested program for those not yet enrolled (to avoid a backlash from seniors already on the program). For those crying out against government tyranny- give them exactly what they are asking for: a program that is not mandatory (nobody is compelled to sign up for Medicare) but is so low cost that private insurers will have to compete or go out of business. That sounds like a win win- one win for the policy aspect of insuring more people at lower costs, and one win for the politics of taking the wind out of the Tea Party's windbags.

Sunday, July 14, 2013

IN THE WAKE OF GEORGE ZIMMERMAN'S ACQUITTAL FOR SHOOTING TRAYVON MARTIN TO DEATH

The late Trayvon Martin, who never reached his 18th birthday

Late Saturday night (July 13, 2013), a Florida jury in Seminole County acquitted George Zimmerman of all charges. Like most rational and sane Americans, I was hoping that George Zimmerman would be convicted of something for shooting Trayvon Martin, an unarmed teenager, to death on February 26, 2012. I thought that first degree murder (malice murder or felony murder in Georgia, depending on the circumstances; Florida's system is a bit different) might be a stretch, but manslaughter or at the very least, negligent homicide, appeared to be no brainers. However, I can't put aside the fact that the law does not mandate that juries convict people whom they think are guilty, although in real life, everyone with a law degree connected with the criminal justice system- prosecutors, defense lawyers, and judges- knows that is exactly what they do the majority of the time. The law requires juries to acquit unless the State proves every element of the crime beyond a reasonable doubt-- specifically, the Sixth Amendment and Due Process Clause of the Fourteenth Amendment to the United States Constitution, as interpreted by the United States Supreme Court:

"The Sixth Amendment provides that those "accused" of a "crime" have the right to a trial "by an impartial jury." This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. United States v. Gaudin, 515 U. S. 506, 510 (1995); In re Winship, 397 U. S. 358, 364 (1970)."


And, occasionally, as in the Florida prosecution of Trayvon Martin's killer, juries will follow the law and acquit a killer where the State has not met its burden, even though they know in their hearts emotionally and in their heads through common sense that the accused most likely committed the offense. (By the way, calling Zimmerman a "killer" is literally true; the epithet "murderer" is still a matter of debate, although he will never be "convicted murderer" with regard to Trayvon Martin.)

It is unusual to have an O. J. type case, where the evidence is overwhelming but a defendant is acquitted. It is more often the case that in any criminal prosecution which is not high profile, the prosecutor's performance is plodding and perfunctory and the defense is pro forma, lacking creativity or passion. And justice-- meaning convicting the guilty and acquitting the innocent- - is done most of the time. Sadly, my anecdotal experiences are that convicting the innocent probably occurs as much if not more often that acquitting the clearly guilty. It is, thankfully, rare that a prosecutor will violate the explicit rules of ethical behavior and attempt to convict a person whom he or she knows- if the prosecutor is intelligent and reasonable- is most likely not guilty of the crime charged. On the other hand, although prosecutors have an ethical obligation not to prosecute without evidence sufficient to constitute probable cause that the accused committed the crime charged, a defense lawyer's ethical duty is the near opposite: he or she must vigorously defend clients whom they know without a shadow of a doubt committed the offense.

In this case, I didn't watch the Zimmerman trial. The only portion I saw was a clip shown on Jon Stewart's The Daily Show of the lame "knock knock" joke from the defense lawyer during his opening statement to the jury. It's usually hard to extrapolate the relative quality of defense counsel from a two minute clip, but if that was the level of competence that Zimmerman's lawyer brought to the courtroom, then the acquittal had little to do with any brilliance of Zimmernan's defense and more to do with the simple fact that there were conflicting interpretations of the evidence of a crime for which there were no eyewitnesses other than the accused. The verdict is also a testament to the jury's willingness to follow the law as charged by the court with regard to what burden of proof the State had to reach before they were authorized to convict.

Oddly enough, Georgia has a stand your ground (no duty to retreat) law that, had this case been brought here, could actually have resulted in total immunity from prosecution for George Zimmerman, a fact recently brought to my attention during casual conversation with a public defender at a recent going away dinner for one of their lawyers.

16-3-23.1. A person who uses threats or force in accordance with
Code. . . .

A person who uses threats or force in accordance with Code
Section 16-3-21, relating to the use of force in defense of self
or others, Code Section 16-3-23, relating to the use of force in
defense of a habitation, or Code Section 16-3-24, relating to the
use of force in defense of property other than a habitation, has
no duty to retreat and has the right to stand his or her ground
and use force as provided in said Code sections, including deadly
force.

(Code 1981, § 16-3-23.1, enacted by Ga. L. 2006, p. 477, § 1/SB
396.)

16-3-24.2. A person who uses threats or force in accordance with
Code. . . .

A person who uses threats or force in accordance with Code
Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune
from criminal prosecution therefor unless in the use of deadly
force, such person utilizes a weapon the carrying or possession of
which is unlawful by such person under Part 2 or 3 of Article 4 of
Chapter 11 of this title.

(Code 1981, § 16-3-24.2, enacted by Ga. L. 1998, p. 1153, § 1.2;
Ga. L. 1999, p. 81, § 16; Ga. L. 2006, p. 477, § 2/SB 396.)


from CNN:

"But who really was Trayvon Martin? There is plenty of speculation, including some bloggers who point to his recent school suspensions -- including for drug residue in his backpack -- and images of him sporting tattoos and a what appeared to be a gold tooth grill as possible evidence of a troubled teen.

That portrayal is in stark contrast to the accounts from his family, friends, and teachers who described Martin as an average 17-year-old.

"He was a shy kid," said family friend and former football coach Jerome Horton. "He didn't want to be the center of attention; that's just not him.

"He always walked with his hoodie and his headphones," recalled Horton. "If he wasn't on the phone, he was listening to music -- anyone that knows him knows that."

Just like most any other teenager, Martin enjoyed listening to music -- R&B was his favorite -- going to the movies and the roller rink with his friends, friends and family said. When Martin entered high school, his childhood goals of a career on the football field were replaced with his dreams of working with airplanes."

Sunday, June 30, 2013

LASSIE, WHERE'S TIMMY? Wait, do you have fleas?



Wow. Talk about precognition. I rarely watch news shows- other than Jon Stewart's Daily Show, which I never miss- but this morning I caught a promo for ABC's this week with George Stephanopolous, who was interviewing Julian Assange, the founder of Wikileaks, now holed up in Ecuador's embassy in London to avoid extradition to Sweden (it's complicated).


So I watched- and there was Julian, being amazingly rational, knowledgeable, and objective, who had to respond to allegations raised by George about irrelevant side issues- whether or not Ecuador as a country was becoming repressive to journalists (talk about a non-sequitur), about where Edward Snowden is now (he's in Hong Kong- no, Moscow, no, he's at the airport, he's on a flight to Cuba!, nope, it's an empty seat- watch the Daily Show recap of the photo of the empty seat on an airplane to do full justice to that one http://news.yahoo.com/snowden-baits-journalists-taking-moscow-havana-flight-151817287.html & http://www.thedailyshow.com/full-episodes/mon-june-24-2013-maggie-gyllenhaal). http://www.thedailyshow.com/watch/mon-june-24-2013/get-us-to-the-geek

To see what a disconnect the "interview" was- it was hardly a conversation, as Stephanopolous never reacted to anything said by Assange, read a transcript about what Assange said- which was basically: hey, this isn't about the person who tells you that you have a serious problem with government invasion of your privacy, it's about the problem itself, then read Stephanopolous' somewhat snarky remarks and dogged tunnel vision, never straying from his script, which had nothing to do with NSA and gov't abuses both nationally and world wide. http://abcnews.go.com/ThisWeek/week-transcript-wikileaks-julian-assange/story?id=19521380


To ABC's credit, they also had on a former Justice Dept. lawyer, Jesseyln Radack, who is an advocate for human rights. She made the point- as did Assange- that there is little or no hope for a fair trial or justice for a whistleblower who has already been demonized by the government and the press/media (Bradley Manning, Assange himself, and now Snowden).

There is a real conversation there- how can a person be charged with "espionage" and imprisoned for life for revealing illegal and secret government programs to the press? Radack made the point that one of her clients was charged with espionage after he had had tried to blow the whistle with his boss, the inspector general of his agency, the inspector general of the Department of Defense, then finally went to the press when all else failed.




"STEPHANOPOULOS: [REFERRING TO SNOWDEN] That's not what he's saying, sir. He has also broken the law. Let me bring that now to Jesselyn Radack, who is also here with me right now. Julian Assange mentioned Edward Snowden's father, who has also written -- his attorney has written a letter to Eric Holder, the attorney general, saying that he believes that his son would be willing to come back to the United States if he would not be detained or imprisoned prior to trial, if he would not be subject to a gag order, if he would be tried in the venue of his choosing. Do you think it would make sense for Snowden to return under those circumstances?

RADACK: I actually don't. I have represented people like Thomas Drake, who was an NSA whistle-blower, who actually did go through every conceivable internal channel possible, including his boss, the inspector general of his agency, the Defense Department inspector general and two congressional committees, and the U.S. turned around and prosecuted him. And did so for espionage and threatened to tie him up for the rest of his life in jail. I think Snowden's outlook is bleak here, and instead of focusing on Snowden and shooting the messenger, we should really focus on the crimes of the NSA. Because whatever laws Snowden may or may not have broken, they are infinitesimally small compared to the two major surveillance laws and the Fourth Amendment of the Constitution that the NSA's violated."

Yes, let's have that conversation.