Month: February 2016

I won’t miss Antonin Scalia.
What he brought to the American system of justice was neither fair nor just.
During my career as a trial court judge, I obtained an advanced law school degree in criminal law. The particular area I concentrated on was Constitutional Law.
I read every Death Penalty decision decided by the Rehnquist Supreme Court, which began at the same time that Judge Scalia became a member of that Court. The Rehnquist era lasted from 1986 to 2005.

Throughout that period Scalia almost never voted to reverse a death sentence. It didn’t matter what issues were raised even when accompanied by a claim of actual innocence. He almost always either affirmed when the appeal was denied or dissented when the rest of the bench voted to reverse. His opinions in support of what Justice Blackmun once described as the “machinery of death” were excessive to the point of being bloodthirsty. He erected or supported as many barriers as could be constructed, substantively or procedurally, to death penalty appellants challenging some fatally flawed trials and yet claim that there were no cases…” in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”

In Scalia’s world the execution of Cameron Todd Willingham never occurred and the fruits and successes of the Innocence Project did not exist.
I sometimes wondered how he would have reacted if one of his relatives or a grandchild had been unfortunate enough to find themselves on Death Row. Perhaps we might have found out what he was truly made of.

His disdain for the “damned and despised” as Clarence Darrow once described them, was not limited to death penalty appellants.

He railed against gay citizens in an opinion which struck down laws that criminalized sexual relations between consenting adults, proclaiming; “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Last year he double-downed on that moral judgement in his dissent in the decision that affirmed the right of gay people to marry.

In a recent case before the Court involving what role affirmative action might play in the admission policies of the University of Texas, Scalia cited some dubious research in a brief that suggested that African-American students might not succeed in a challenging academic setting and observed; “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

Before he arrived on the Court, death penalty laws were evaluated by whether they were consistent with “evolving standards of decency’ and the Constitution was considered to be a “living document” capable of being applied to the changing standards of a modern world. Scalia rejected this concept and, instead espoused something called an “originalist” and “textualist” interpretation that required it be applied according to the intent of the founding fathers or those who when it was amended. In short, the Constitution would have no more relevance to current times than the Dead Sea Scrolls.

There have been times throughout his career and in his opinions that he has sounded like Donald Trump in a robe with a pen. I’ve never expected much from Donald Trump, I did expect more from Scalia.

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I have been a political junkie all of my life. One of my constant refrains has been that the only two things in life that I will bet on are prize-fights and political races because anything can happen. That last statement seems like a bit of an understatement this year.
The Republican race for President, as I’ve said, resembles a demolition derby. The only thing that the candidates seem to agree on is that everyone else in the race is a liar. Indeed, some have characterized others as being “the biggest liar” or “the worst liar I have ever met.” For awhile, I thought there might be Guinness Book of Records contest going on this year in that category. It will be very interesting when the Party holds its Convention this July in Cleveland and selects a nominee and all of the candidates have to endorse him and proclaim that he is the only one Americans should believe in.
I thought I’d seen everything that could happen in politics and then Donald Trump decided to go to war with Pope Francis.
Some of his supporters will contend that the Pope struck first by impugning Trump’s genuineness as a Christian, however it was Trump who characterized the Pope as being a “political Pope” and suggested that the Mass he celebrated on the Juarez border was a prop staged by the Mexican government.
Once my shock at Trump’’s audacity had subsided I was able to give his tactic a more cold-eyed appraisal. It became clear to me that Trump saw this gambit as another way to appeal to Evangelical voters, who distrust the Catholic Church and in a state in which Catholics are a distinct minority.
The battle for Evangelical voters within the Republican Party has been going on for at least two decades. We are now into the second generation of Evangelical church leaders such as Jerry Falwell Jr. and Franklin Graham, son of Billy Graham, either endorsing a candidate or registering their flock to vote. Candidates this year are increasingly trying to pander to this voting bloc. Cruz is harping on Judeo-Christian values and using his Evangelical pastor father as a surrogate. Rubio trumpets the fact that he attends two churches, one is Roman-Catholic and the other Evangelical. Trump rails against Muslims, vowing to bar them from the country and has now taken on the Pope.
Forty-five years ago John F. Kennedy had to appear before the Greater Houston Ministerial Association to defend his right, as a Roman-Catholic, to run for President. His eloquent exposition about the need to keep religious beliefs separate from the discharge of official duties should be required reading for anyone seeking public office today and in the future. http://www.americanrhetoric.com/speeches/jfkhoustonministers.html
It might bring us back to time when the separation of Church and State is once again viewed not as a vice but a virtue. Miracles sometimes happen.

American politics could use more candidates like Senator Bernie Sanders. He may be the last true gentleman to be in that arena.

I am not offering an opinion on who you should vote for in this Presidential election but Senator Sanders has conducted his campaign with an uncommon civility not seen anywhere else this year.

He has refused to run negative advertisements against either of the opponents he has faced in the contest for the Democratic Party nomination. He has repeatedly refused to criticize Hillary Clinton on the issue of her private e-mail server.

When it is apparent that she is more knowledgeable about an issue, particularly in the area of foreign affairs, he has readily acknowledged it. He treats his opponents with respect and has displayed a dignity throughout the debates and town hall gatherings consistently.

The contest for the Republican Party nomination appears to be little more than a demolition derby with Donald Trump driving the biggest car. He called Mexicans “rapists and criminals.” He has called for a ban on all Muslims entering the country. He has insulted African-Americans, the disabled, his opponents, the media and anyone else that draws his ire. Just as disappointing, his fellow Republican opponents have remained mute during his verbal assaults on Mexicans, Muslims and other immigrant groups, particularly the two who celebrate their own immigrant stories, Rubio and Cruz.

Equally refreshing is Sanders refusal to employ his own super-Pac. The United States Supreme Court, in its infinite wisdom, has allowed the electoral process to become a cesspool by its dubious holdings that corporations enjoy the same rights as people and that the unregulated, undisclosed sources of vast sums of money somehow constitute the exercise of free speech. As a result, for the rest of this year you might be afraid to turn your television on due to the commercials you might see.

I don’t know who will ultimately prevail in either nominating contest but Sanders deportment throughout this process is a breath of fresh air.

I have a three year-old granddaughter who is very big on “Do Overs.” She likes to wake up adults in the morning and if you get up ahead of her, you have to get back into bed and pretend you’re asleep so she can still wake you up. The same is true of unwrapping a present. She likes to help. If you unwrap a gift in front of her without her help, she’ll make you re-wrap it so that she can help you unwrap it.
Earlier this year an anti-abortion group based in California secretly recorded videos purporting to show Planned Parenthood officials agreeing to sell fetal body parts for profit. Planned Parenthood officials charged that the recordings were heavily edited and created a misleading account of the interviews with the filmmakers, who themselves posed as willing purchasers.
The ensuing uproar led to demands that the U.S. government defund Planned Parenthood and one candidate for President, Carley Fiorina, claimed the video showed a live aborted fetus, when it plainly did not. The Lieutenant-Governor of Texas demanded that the District Attorney of Harris County based in Houston open a grand jury investigation of Planned Parenthood to see if criminal charges against the organization and its officials were warranted. Both public officials are registered Republicans too.
In one of those “Be Careful What You Ask For” moments that we rarely see, the grand jury did bring criminal charges. It indicted two members of the anti-abortion group for their conduct in making the videos and cleared Planned Parenthood of any wrongdoing.
Now, the lawyers representing the indicted anti-abortion activists want a “do over.” They contend that the grand jury became a “run-away” grand jury that indicted the wrong parties. They want a “do over” in which a second grand jury is empaneled.
A “run-away” grand jury is a grand jury which ignores the wishes of a prosecutor and its members decide for themselves who and what it will investigate. They are historically rare and were most often seen in the last century when some of them decided to investigate official corruption in various localities like New York City on their own.
Since members of a grand jury are the sole determiners of both the credibility of witnesses and what facts occurred, it is hard to see how the findings of this grand jury and the charges it brought are flawed. This is particularly so because a grand jury cannot take any official action unless a majority of its members are in agreement.
Following indictment a judge may examine the evidence that was presented to the grand jury to see if it is legally sufficient to support the criminal charges lodged but getting “do over” in which charges are represented to another grand jury absent a finding that the evidence is insufficient is unheard of.
The Harris County prosecutor who describes herself as “pro-life,” has declared that her office is “open to hearing the lawyers concerns” and her spokesperson has suggested that “Sometimes justice is served by dismissing cases.”
That would be the ultimate “do over” and would hardly inspire confidence in the justice system.
It’s far more serious that waking someone up or unwrapping a present.