Stand Your Ground: Dunn Verdict

February 24, 2014

If justice had been done, then Michael Dunn should have been convicted of first degree murder, but in Florida and other “stand your ground” law States it is virtually impossible to get a murder conviction. Some of the jury in the Dunn case followed the law and that’s the problem: stand your ground laws create an impossible burden to prove first degree murder based on evidence alone.   Especially when a white kills a black.

First degree murder in the Dunn trial was proper because in Florida the intent to kill can be formed between the first and second shots. Dunn fired 10 times at a car moving away from him over a space of 4-5 seconds. He basically emptied his gun at a car driving away from him. The problem is that the “stand your ground” laws provides only a subjective test of the fear of imminent death for a shooter. In other words, it is not necessary for a person who kills someone else to make a decision that a reasonable person would have done in similar circumstances. It is not necessary to have any reasonable basis to believe anyone is a threat. All a murderer like Dunn has to say is that he really felt threatened, whether there was objective reason to feel threatened or not.

In Florida, the subjective standard of a perceived threat was adopted after testimony like the following:  One woman asked Legislators why she would have to wait until someone attempts to rape her before she is able to kill them? Her point was that if she feels some guy wants to rape her (whether there is any reasonable basis for that belief or not), she should be free to legally shoot him dead. In Florida, and many other States, that sounded logical and reasonable to Legislators dependent on NRA approval ratings and contributions.

As a father of two young children of race, I certainly understand the fear and outrage of African-American parents. “Stand your ground” laws have not reduced crime. They have not reduced homicides or attempted homicides – in fact they have increased homicides in the States that have adopted this law. The law is nothing more than a declaration of open season on African Americans, who are routinely misperceived as a “threat” by white people.

Stand your ground is a license for whites to murder blacks.  Period.


Supreme Test

May 12, 2010

More than a few people have been arguing that the current Supreme Court has been stacked by the Republicans with Judges who consider the Constitution as a tool to expand and empower the rights of business corporations over the rights of individuals (Alito, Scalia, Thomas and Roberts). The evidence is supported by recent decisions that enable corporations to discriminate against women, and to permit unlimited funding of campaigns by corporations. Whereas the U.S. Constitution was once considered a shield for the rights of the people from the powerful, it is now being bent to undermine individual freedoms whenever those rights conflict with the profits of business.

This makes the nomination of Elana Kagan as the next Supreme Court Justice a vital matter to anyone who cares about liberty. Consider the events of the last 2 weeks: an ecological disaster caused by a corporation that was allowed to protect their profits at the expense of our safety, and a cyber-theft on Wall St. that created a few multimillionaires in less than a minute while wiping out the pensions and savings of thousands. BP is now venue shopping in Texas, where judges have been elected by the contributions of Oil Companies – a clear example of how corporate money is expected to buy justice. The robber-barons on Wall St. will continue to make money by betting against the same stocks they sell us.

The system has become so unjust and unfair that it is threatening our democracy. What will happen when ordinary people, individual citizens, know they can never get justice in the courtroom because judges are protecting the interests of the rich and powerful? That’s not what our Founding Father’s intended, and it’s not the way the Constitution should be interpreted.

The only question that Ms. Kagan should be asked is “do you believe the Constitution provides the same protections to inanimate objects (such as multinational corporations) as it does to individual US citizens? Do you believe that the Constitution seek to protect the rights of the individual from the rich and powerful?”

Justice Roam Polanski Style

May 6, 2010

If the US is asking for the extradition of Roman Polanski, why is the government not asking for the extradition of Cardinal Bernard Law or Pope Benedict XVI? If we consider it important enough to seek extradition of a man responsible for the rape of a child, why are we not asking for the extradition of men who were responsible for allowing the rapes of tens of thousands of children?

Bernard Law was Cardinal of the archdiocese of Boston and had actual knowledge of pedophile priests responsible for the rapes of hundreds of children. He protected the pedophiles from the law and allowed them to be transferred to other duties and other opportunities to rape more children. Cardinal Law beat it to the Vatican literally moments before being served with a subpoena for Grand Jury testimony by the Massachusetts State Police. He claims diplomatic immunity and refuses to submit to justice.

Pope Benedict XVI while Bishop received complaints of child abuse by priests, but his office never responded to the complaints or contacted the police. His supporters claim that he never PERSONALLY saw any of these complaints and was unaware of them. However, as Cardinal Ratzinger before becoming pope, he insisted that ALL cases of sexual abuse be reported to him and only to him. Now stories are emerging about the direct role the Pope played in covering up the crimes and enabling the sexual abuse by pedophiles.

In Britain, there is a movement to serve the Pope with a writ (the equivalent of a subpoena). We should do the same.

Perhaps Roam Polanski should have fled to the Vatican rather than Switzerland, where he would only be one more pedophile among many…

Supreme Irony

April 23, 2010

With the retirement of Justice Stevens, one of the great voices advocating for individual liberties left on the Court, the battle begins to find his replacement. Talking about the US Supreme Court is a bit like stepping into Bizzarro World – the creation from Superman Comics where everything in the world is the exact opposite of reality. Then again, maybe it’s a bit more like some Orwellian exercise in double speak. The US Supreme Court, as it has been constituted since 2000, has been the most activist court in our Country’s history, beginning with the unprecedented and shameful coup of Bush V Gore. Since that shameful decision the conservative radicals on the US Supreme Court have consolidated their attempts to undermine the Constitution and turn the country, by judicial fiat, into a corporate oligarchy.

Hopefully, President Obama will nominate a person who has the every day experience and common sense to understand how the decisions of the Court affects the every day lives of ordinary citizens; someone who will be willing to take back the true intent and meaning of the Court, and respect precedent. As for me, I have an idea…

Why not nominate Al Gore? If anyone would appreciate the effects of judicial activism it would be him. Wouldn’t that be a nice ironic twist and a decisive movement toward returning the Court’s perceptive to it’s original intent: to protect the rights of the individual against the powerful.

Activist Judges

March 29, 2010

With the revelation that the wife of Supreme Court Justice Clarence Thomas was among Tea Baggers demonstrating in Washington D.C. can there be any doubt that there is a extremist element who are influencing the decisions of the Supreme Court of the U.S.? I know some people will try to distance Clarence from his wife’s actions – although she wasn’t seen spitting on African-American Congressmen, screaming racial or sexist epithets or carrying signs advocating violent revolution – common sense tells us that those political views are apples that haven’t fallen far from the tree.

Justices Thomas, Alito, Roberts and Scalia have all made public comments decidedly not very judicial and revelatory of a radical agenda to overturn precedent and decide cases to promote the corporate takeover of our Government. Some, like me, recognize that when the Court overturned decades of legal precedents to allow unrestricted rights of corporations (even multi-national corporations) to fund political campaigns was the first step in allowing a “corporate coup”.

There is a movement to change the law allowing judges to be elected, because Corporate money has been used to elect judges who, in turn, make rulings that favor corporate interests over the right of individuals. In Michigan, we have seen how Insurance Companies and the Chamber of Commerce have gotten judges elected to the State Supreme Court with a devastating result to individual rights and the trial by a jury of peers system. Unfortunately, many of those same Justices were initially appointed by a Governor who was also elected by the same Insurance Companies.  A solution to the problem of activist conservative judges is not easy or apparent, but to those of us who spend our lives fighting for the rights of victims it is becoming an impossible task to get justice. I won’t back down or stop fighting for the people, but I worry when jury verdicts are overturned and victims are denied justice or a voice in deciding our government.

The Lie of Tort Reform

March 2, 2010

The “Health Care Summit” reminded me that there are some disturbing rumors that President Obama is open to incorporating GOP “ideas” on “Tort Reform”. This would be a tremendous mistake for several reasons.

First, Tort Reform has nothing to do with health care costs. It is solely a give away to the insurance industry. In States that have passed caps and other types of “Tort Reform”, the costs of delivering medical care, the costs of private medical insurance and the costs of medical malpractice insurance is the same, or more, as those States which have not passed Tort Reform. Study after study in the past 2 decades have consistently shown that medical malpractice lawsuits contribute less than 1/10 of 1% (.01) of health care costs. Some people claim that the hidden costs of lawsuits include the practice of “defensive medicine”, but again, the data proves otherwise. Most medical tests deemed to be unnecessary are ordered by doctors and hospitals seeking to up their fees and cover costs of purchasing new (and often unnecessary or duplicative) equipment. A hospital decides to order a new MRI machine and hire staff [even though a competitor down the street already has one], and all of a sudden the number of requests for MRIs increases.

The number of medical malpractice lawsuits has steadily declined in the past 25 years. The number of cases won by plaintiffs has decreased, and the average amount of money verdicts has decreased during the same time period. So why has the cost of medical insurance premiums and medical malpractice insurance increased exponentially? The only economic factor shown to correlate with increases in the costs of insurance premiums is the stock market. In other words, insurance companies raise premiums depending on how their investments in the stock market fare. Then, of course, there are the 28% administrative costs, including lobbyists to make sure that States don’t audit their books.

Not one insurance company, in any state, has ever opened its books to correlate the premiums charged with the actual cost of underwriting. The health care crisis is in large measure due to the abuses of private insurance companies. The solution to the crisis is not to take away the legal rights of Americans to have their day in court, and protect corporations, which is what Tort Reform is. Whenever I ask people, even conservatives, if they think the government should be able to change any verdict from any jury without hearing or reviewing a single piece of evidence, they say “absolutely not”. That is exactly what happens with damage caps (tort reform).

Even though it is widely recognized that the abuses private health insurance corporations have created the heath care crisis, the President still refuses to consider a single payer system. A single payer system would immediately reduce administrative costs, which is the single greatest contributor to escalating costs. But another more important effect of a single payer system would be to remove the corrupting influence of insurance industry money on politics. If you happen to have seen the health summit on television, imagine a dollar sum above the heads of each and every one of those Congressmen talking, representing how much money they took from the insurance industry to get elected… Max Baucus ($35 million), Joe Lieberman ($12 million), etc.

Tort reform will change nothing regarding the costs of health care. It is another give away, taking away all our rights. What we really need is campaign finance reform. That would solve more than just the Health Care Crisis.

A Lesson in Double Jeopardy

March 20, 2009

The Fifth Amendment to our Constitution provides that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb” This language is commonly referred to as the Double Jeopardy Clause. Most people understand this language to mean that the government cannot try to “get you twice” for the same crime. That is a pretty good summary of the broad concept, but there are some finer points to how it works.

Let’s pretend that the government charges you with a crime. You get a lawyer and go to trial during which the prosecutors present evidence to the jury. After the government concludes its case, the defense counsel usually files a motion for a directed verdict. This motion basically asks the court to throw out the charges and enter an acquittal because the prosecutors failed to present sufficient evidence of a crime. This is a very important motion that acts as a check and balance system on the executive branch (i.e., police, prosecutors, district attorneys).

You see, the government has the power to charge a person with a crime, but if they fail to present any evidence of the crime, the judge is supposed to “check” the executive branch by throwing out the case. Without this check and balance system, prosecutors would be allowed to charge you with a crime knowing they didn’t have any evidence and convince a jury to convict you because they didn’t like your hair. That is not the way it is supposed to work. The motion for directed verdict is a powerful check on the prosecutor to prevent him from convicting a person of a crime without any evidence.

In practice, defense lawyers almost always file motions for directed verdict but they are rarely granted. Well yesterday a judge in Arizona granted a defendant’s motion for directed verdict and it seems to have caused quite a stir.

Apparently, Arizona Attorney General Terry Goddard tried to charge local gun dealers who he accused of arming Mexican drug cartels. It seems that the gun dealers made legitimate sales of weapons to individuals who later shipped the weapons to Mexican drug cartels. Because the gun dealer’s sales were legitimate under state law, the Attorney General basically had no case, but it didn’t stop him from charging the crime. This is a text book example of when a judge should grant a directed verdict, and that is exactly what Judge Robert Gottsfield of Maricopa County Superior Court did. Judge Gottsfield threw out the case, as he should have, because the prosecutors didn’t have enough evidence to convict but instead wanted to bend and twist the law to make up a different crime.

By no means am I suggesting that gun dealers should be arming drug cartels, but prosecutors should not be allowed to overreach and “make up the law” to promote their own self righteous agendas. If they want the laws changed to make it easier for them to charge crimes, they need to go to their state legislature to do it. But they should not expect the judges to give them a hand in their endeavors.

Of course the Attorney General is mad as hell because the judge actually enforced the constitution and threw out the case. In an interview reported in the New York Times, Goddard said “It’s not over by any means” and went on to say “We are trying to make sense of it.”

I’m sorry to tell you Mr. Goddard, but it is indeed over. Let me break this down for you. The Double Jeopardy Clause doesn’t allow you to continue your crusade once the Judge granted the motion for directed verdict. The grant of a motion for directed verdict is the same as an acquittal. Once there is an acquittal, your case is over. You get no appeal, even if the Judge’s reasoning underlying his ruling is wrong so says the United States Supreme Court.

You may want to take a look at the Supreme Court’s decision in Smalis v. Pennsylvania, 476 U.S. 140 (1986) in which the highest court of our land ruled that if the trial judge grants a motion for directed verdict for lack of evidence, there can be no further proceedings or appeal by the government. To be more specific, the Supreme Court held that:

The Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into “further proceedings of some sort”

In State of Arizona v. Millanes, 180 Ariz. 418 (1994), the Arizona Court of Appeals has already followed the Supreme Court’s decision in Smalis.

So what does this all mean? In short, its over. Thank God for our constitutional system of checks and balances, and even more so for judges like Robert Gottsfield who are willing to “check” prosecutors for trying to skirt our constitutional rights.