Friday, October 14, 2011

A big cross in the middle of a government cemetary isn't an endorsement of religion!?

That is what the more conservative wing of the Ninth would have the law say if they only had a some more votes:

"“A rose is a rose is a rose.”

— Gertrude Stein, Sacred Emily, 1913.

Stein wrote this sentiment to express the flower’s indescribable, unchangeable essence. The panel appears to have transmogrified Stein’s ode to a rose into a new rule of law—“a cross is a cross is a cross.” Alas, that is neither good poetry nor valid law. Unlike roses, religious symbols can have multiple meanings..."

I think the Ninth did a disservice to Shakespeare by skipping 500 years forward to Stein:

"What's in a name? that which we call a rose
  By any other name would smell as sweet;"

 -Romeo and Juliet

The opinion is an interesting piece, and I am sure the Court will be taking it up.  The other interesting issue is that it shows the Conservatives have not quite yet wrested control of the Ninth away from the Liberals, but they are getting closer.

Bea authored it, and four other judges signed on, all but one were Republican appointees, except Tallman, who was appointed by Clinton in 2000 when the Republicans controlled congress.

Who ever said there were no litmus tests?

By the way, here is a picture of the cross which Judge Bea would have you believe is not a religious symbol that represents an endorsement of religion.


In truth, I am a bit sympathetic to the dissent, the thing has been there for over 70 years in one form or another, why tear it down now?  But for the whole "camel's nose" under the tent style reasoning, it seems to me that this was a bad use of Establishment precedent.

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 dead...by 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 statements...at 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?