Friday, September 30, 2011

In MORE Serious News

Our country just carried out the first extra judicial death sentence of a United States citizen, that I am aware of - under the circumstance where the person was executed for providing material support to a terrorist organization, but was not in possession of any weapon that posed an immediate threat to anybody.

No trial, no appeal, just death.

I am certainly not crying over the fact that Anwar Al-Alwaki is all accounts, he cheered, goaded and probably colluded in attacks that killed innocent people.  But, that should never ever trump the rule of law our country has been founded upon - a rule that requires American Citizens be afforded due process before sentence, which has time and time again been interpreted to mean a jury trial. 

In this case, the closest anybody can tell is that some secret committee, based upon secret evidence, issued a death warrant.  The administration opposed this man's family's attempts to challenge the publicly known death warrant, and was successful - no hearing or trial on the merits.

As a life-long democrat and unabashed liberal, I hope this stain upon American history haunts Obama throughout the rest of his life and his legacy beyond - as our commanders in chief are fond of saying - the buck stops with Obama on this one.

Super Sex Lawyer?

While most lawyers would be lucky to have had sex 75 times before getting married, this dude in Boston had 75 Children!!!

His wife is not too happy: "“What if they all come knocking?” she asks angrily on camera. “Did you think of the consequences that would come out of this?”"

Cudos to you Ben Seisler!

Friday, September 23, 2011

You better be Good.

"I think if the heavens were striking in cases of spontaneous combustion then there would be a lot more cases. I go for the practical, the mundane explanation," he said."

From the BBC:

"A man who burned to death in his home died as a result of spontaneous combustion, an Irish coroner has ruled.

It is believed to be the first case of its kind in Ireland.

West Galway coroner Dr Ciaran McLoughlin said it was the first time in 25 years of investigating deaths that he had recorded such a verdict.

Michael Faherty, 76, died at his home at Clareview Park, Ballybane, Galway on 22 December 2010.

An inquest in Galway on Thursday heard how investigators had been baffled as to the cause of death.

Forensic experts found a fire in the fireplace of the sitting room where the badly burnt body was found had not been the cause of the blaze that killed Mr Faherty.

The court was told that no trace of an accelerant had been found and there had been nothing to suggest foul play.

The court heard Mr Faherty had been found lying on his back with his head closest to an open fireplace.

The fire had been confined to the sitting room. The only damage was to the body, which was totally burnt, the ceiling above him and the floor underneath him.

Dr McLoughlin said he had consulted medical textbooks and carried out other research in an attempt to find an explanation.

He said Professor Bernard Knight, in his book on forensic pathology, had written about spontaneous combustion and noted that such reported cases were almost always near an open fireplace or chimney.

"This fire was thoroughly investigated and I'm left with the conclusion that this fits into the category of spontaneous human combustion, for which there is no adequate explanation," he said.
'Sharp intake of breath'

Retired professor of pathology Mike Green said he had examined one suspected case in his career.

He said he would not use the term spontaneous combustion, as there had to be some source of ignition, possibly a lit match or cigarette.

"There is a source of ignition somewhere, but because the body is so badly destroyed the source can't be found," he said.

He said the circumstances in the Galway case were very similar to other possible cases.

"This is the picture which is described time and time again," he said.

"Even the most experienced rescue worker or forensic scientist takes a sharp intake of breath (when they come across the scene)."

Mr Green said he doubted explanations centred on divine intervention."

In other, more disturbing news, the Eleventh Circuit has once again affirmed that when you are sentenced as a Career Offender but legally should not have been, if you miss the 2255 deadline, you are doomed to serve many, many more years in prison than you would have if the court had got it right the first time.

"We thus decline to extend the actual innocence of sentence exception to claims of legal innocence of a predicate offense justifying an enhanced sentence. In so doing, we heed the Supreme Court’s instruction to exercise restraint in expanding the procedural default rule’s exceptions. We also keep the actual innocence exception narrow, and ensure that this exception remains “rare” and is only applied in the “extraordinary case.”

In short, the actual innocence exception does not apply to McKay’s claim that he was erroneously sentenced as a career offender. This sentencing claim is barred by the procedural default rule and, therefore, we AFFIRM the denial of McKay’s § 2255 motion."

McKay v. United States

This is just morally wrong.

Wednesday, September 21, 2011

That's MY Money!

Odyssey v. Kingdom of Spain:

"In 2007, Odyssey Marine Exploration, Inc. (Odyssey) discovered the remains of a 19th Century Spanish vessel in international waters west of the Straits of Gibraltar. Odyssey filed a verified admiralty complaint in rem against the shipwrecked vessel and its cargo in the Middle District of Florida and also sought a warrant of arrest. The Kingdom of Spain (Spain), the Republic of Peru (Peru), and twenty-five individuals filed claims against the res. Upon receiving additional information about the vessel’s identity, Spain also filed a motion to dismiss. Spain argued, without waiving its sovereign immunity, that the res was a Spanish warship and the district court thus lacked subject matter jurisdiction over Odyssey’s claims because the vessel was immune from judicial arrest under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611. The district court granted Spain’s motion to dismiss, concluding the res was the shipwreck of a sunken Spanish warship and was entitled to sovereign immunity. Having determined that the res is “immune from . . . arrest” in United States courts, we affirm. 28 U.S.C. § 1609."

To make matters worse:

"We note, the release from custody sought by Odyssey would not, as Odyssey contends, return matters to the status quo at the commencement of this suit. The U.S. Marshal seized the res approximately one month after Odyssey discovered the site in March of 2007. Odyssey continued recovery operations after the order of arrest. While Odyssey may have had prior custody of some items from the site, the remainder of the recovered res was received in Odyssey’s capacity as custodian for and under the authority and protection of the court.

Moreover, releasing the res to the custody of Spain is not, as Odyssey attempts to characterize it, a “transfer.” Odyssey holds the res as a substitute custodian of the district court; the res remains in custodia legis (in the court’s possession). By ordering Odyssey, as substitute custodian, to release the res into Spain’s custody, the court is relinquishing its control of the res and releasing it to the party that has a sovereign interest in it. Further, Spain’s sovereign interest in the res existed before Odyssey initiated this action and deposited the parts of the res it had salvaged from the shipwreck."

To paraphrase the opinion - Great Work! Now give the stuff back. Schmucks.

Obama at the UN

President Obama is speaking and has been lauding the fact that through peaceful opposition, peoples around the world have begun to realize the "universal right" of self-determination.

He said - 

"We will always stand up for the universal rights that are recognized by this assembly..."

Then went on to address Palestine - 

"One issue stands as a test...conflict between Israelis and Palestinians...

One year ago called for independent Palestine...deserve state of their own...

Genuine peace can only be realized between...the parties...

Question isn't goal that we seek...quetion is how to we reach that goal...

Peace is hard work...won't come through UN..."

One cannot help but recognize the hypocrisy of our country's position.  It is morally wrong, and I have yet to hear a reasonable explanation as to why the UN should not recognize Palestine.  I want to hear one because I want to be able to say to my friends that Israel is in the right.  I just don't see it.

Tuesday, September 20, 2011

Palestinian Statehood

I previously posted about the intent of the Palestinians to seek recognition from the UN as a state. 

It appears that they will be moving forward with that plan this week.  The United States has said it will veto acceptance of Palestine in the security counsel, which will then leave the Palestinians with the sole option of going to the general assembly to be recognized as a "observer state."  That will allow them to bring Israel before international tribunals to challenge Israeli actions, such as building settlements on what would then be recognized as Palestinian land.

I am deeply disturbed by the US and Israeli positions regarding the Palestinians actions.  Repeatedly, they have both referred to the Palestinian's intent as "unilateral action."  How can going to the UN, which has 193 member states, be considered "unilateral"?  To be accepted as an observer state, the Palestinians would need 2/3 approval from the general assembly -- 129 countries.  The time has come for this to happen.

Essentially, the Palestinians are looking to have a state which is enfranchised and legitimate - how can that be bad.  In the future, if Palestinians continue to lob rockets at Israel, Israel can declare war and seek to legitimately end such state aggression - how is that bad?

Somebody please tell me why the Palestinian's should not have a state?

Wednesday, September 14, 2011

Sara Palin!

Although I have often been critical of Palin, I can't help but like her just a bit more because of this one:

"A new book about tea party darling Sarah Palin has a salacious revelation about her sex life involving a well-known Miami sports star.

According to The National Enquirer, which obtained an advance copy of a book about Palin by investigative writer Joe McGinniss — Palin and former Miami Heat player Glen Rice had a one-night tryst back in 1987."

Dude could hit the Three.

Tuesday, September 13, 2011

Actress banned from films because of alleged affair!

Female actress has alleged affair with another star.  He is married, she is not.  He is arrested when he allegedly beats his wife and threatens her with gun after his wife confronts him about alleged affair with the actress.  Wife then drops charges and he is freed.


"The Kannada Film Producers' Association imposed the ban on Ms Thukral saying she had spoiled the 'domestic harmony of a fellow actor'."


"'If Nikhita [Thukral] apologises for her behaviour and says she will just work in films and not get involved in domestic affairs of fellow actors, we will withdraw the ban,' association president Munirathnam told the BBC."

What a Country!

In other news - The Mighty Dicks - Perry and Scott, have announced plans to annex the Florida Everglades to Shell Oil.  After that is completed, they have indicated that they will mount white horses and "finish that darned war against the Injuns in Florida.

Monday, September 12, 2011

Palestinian Statehood

The New York Times published an op ed piece today arguing against recognition by the UN of Palestine as a State.

The article rightly points out that Israeli leadership is to blame for the breakdown in the peace process: "we put the greater onus on Mr. Netanyahu, who has used any excuse to thwart peace efforts..." Unfortunately, the article goes on to suggest that the "best path to statehood remains negotiations" and that Palestine should not seek Statehood.

Where have negotiations gotten the Palestinians in the last Forty-Four Years? A few examples:

- More settlers on land that the international community recognizes as belonging to Palestine - not Israel.

- Operations such as "Cast Lead" - the type of community wide reprisal that the Nazi's were known to commit - which resulted in the deaths of 320 children under 18 and over 100 women.  It also saw the use of white phosphorus by Israel, which has been recognized as a war crime because of it indiscriminate effect on the target population and manner in which it kills - literally burning a hold through a person.

- An apartheid state for Palestinians who are Israeli citizens.

The Palestinians share in the blame - there is public support in Gaza and the West Bank for terrorist attacks against innocent Jews, as well as support for Hamas - an organization that has sworn itself in support of the demise of Israel.

But to say that Israel is justified is the same as saying that a man who shoots an unarmed kid who enters his fenced in yard is justified in the killing because Florida Law allows him to "defend his castle."

So what is the argument that the NY Times comes up with to oppose Palestinian Statehood?

"To get full U.N. membership the Palestinians have to win Security Council approval. The administration has said it will veto any resolution — ensuring the further isolation of Israel and Washington. If they fail in the Security Council, the Palestinians have said they will ask the General Assembly for enhanced observer status as a nonmember state. Even the more modest General Assembly vote, which the Palestinians are sure to win, would pave the way for them to join dozens of U.N. bodies and conventions, and could strengthen their ability to pursue cases against Israel at the International Criminal Court. But Israel would still control Palestinian territory, leaving the Palestinians disaffected after the initial euphoria."

In other words - (1) the United States and Israel will look bad because they oppose Statehood, (2) the Palestinians are likely to win in the General Assembly and thus gain rights that Israel will not permit them to have (territorial sovereignty), and (3) Palestine will be able to hold Israel accountable in International Courts of Justice.

Pretty awful reasons to oppose Statehood.

I want Israel to succeed and be a Jewish State for the rest of time.  The way Israel is going about trying to protect itself is nothing more than ensuring that will not happen.  Only internationally recognized borders for Israel and Palestine will ensure Israel's survival. 

Only then, when terrorists attack Israel and violate is sovereignty (which undoubtedly will happen), will Israel be able to turn to the UN and muster International support for its necessary reactions to such an attack, and if necessary go to war - with proper justification.

Thursday, September 8, 2011

The Liberal 4th Has Spoken

Looks like Obamacare lives on...for now...thanks to those liberal minded jurists in the Fourth Circuit.  In a 33-page opinion, the first 16 of which listed the parties and amici (not sure if that is the correct usage), the Fourth ruled that the Commonwealth of Virginia lacked standing to sue:

"For the reasons that follow, we hold that Virginia, the sole plaintiff here, lacks standing to bring this action. Accordingly, we vacate the judgment of the district court and remand with instructions to dismiss the case for lack of subject-matter jurisdiction."
The Court may not be as liberal as I hoped, it did go on to conclude:

"In sum, the significance of the questions at issue here only heightens the importance of waiting for an appropriate case to reach the merits. This is not such a case."

Wednesday, September 7, 2011

Lead up to 9/11

Leading up to the 10-year anniversary of 9/11, I encourage everybody to reflect on that day, and what has happened since.  A good starting point would be to recall the impact it had on you and others.  The link below will take you to a BBC page that has a few short videos you can watch - take a minute to go through some of them.

Friday, September 2, 2011

Nice Defense Win in 11th

If you were to check the published opinions of the 11th Circuit, you would not find the win by Eric Cohen - because the opinion is unpublished.

Maintaining a consistent approach to a tradition that any opinion likely to establish or reaffirm helpful precedent for a criminal defendant is not to be published, the 11th did not publish the decision of U.S. v. Williams, 2011 WL 3055281 (11th Cir. 2011), which confirmed two very important rules:

1) A defendant's "request to call his attorney to tell him “he was going to cooperate with the Government” constituted “some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.""  In the face of such a request, "further questioning is limited to clarification of the equivocal request.”" Williams, at *1.

2) If there is evidence that can support a valid theory of defense instruction, it is error not to give it.  In Williams, the instruction would have told the jury that he could have had the intent to smuggle drugs, without the criminal intent necessary to convict. Id., at *2.

The Court did not even bother to publish the language of the instruction that was requested, but instead simply referred to another published case (United States v. Ruiz, 59 F.3d 1151 (11th Cir.1995) (team of Robert N. Scola, Jr., G. Richard Strafer, H. Scott Fingerhut for the appellants) containing a "nearly identical" instruction.  Nearly identical is helpful, but not as helpful as the actual language itself.

You can be sure that if Williams ultimately decided the improperly admitted confession was harmless error and did not otherwise reverse, the opinion would have been published.  Fortunately, the Court did not even reach that questions because it found the denial of the requested jury instruction to be reversible error.

But it is interesting to note that Williams also raised a third issue on appeal, which the Court did not address because of the reversal.  Williams complained that the district court failed to conduct a competency hearing, but the Court found that because it was reversing on the jury instruction issue, it did not need to reach the competency question.  A bit confusing give the fact that the Court did find the admission of Williams's confession to be in error, but did not reach the question as to whether or not it was reversible error.

The Court deserves credit for publishing a finding that a statement should have been excluded when it wasn't reversing on that issue.  Too often the decisions go the other way - find any possible error harmless, without ever providing any reasoning (or guidance) as to whether or not there was error in the first place.  But it seems that there is no rhyme or reason to what issues are reached and what issues are left untouched.

Anybody want to help me out?