Atlanta administrative judge issues his recommendation

Remember the "trial" that was actually a hearing before an administrative trial judge who was charged with issuing a recommendation to the Georgia Secretary of State? Well, he issued his statement to the Birthers today:

Basically, his ruling said that the birther's "evidence" isn't -- in the words of administrative law, their "evidence" has "no probative value". I.e., it's speculations, made up silliness, unproven / unprovable nonsense, nothing that counts as evidence in the legal meaning of the term. A state administrative judge doesn't have to comply with the full multi-volume stack of books that comprise the Federal Rules of Evidence, but in every state you can't just come in and say "The President's birth certificate is forged!" -- you have to prove it, with actual evidence. Otherwise you're just expressing an opinion, and an opinion isn't proof of anything other than that, like every asshole on this planet, you got an opinion.

And in case you're wondering, even if you're a world-renowned expert on Photoshop, saying "the President's birth certificate is clearly photoshopped!" is *still* just an opinion. Under the rules of evidence of *any* state, you have to *prove* it's photoshopped, your opinion is just an opinion, which is worthless unless you can produce the actual person who photoshopped it and corroborating evidence that he indeed was there and did the job.

If there was anything the birthers had that met the most rudimentary of the rules regarding what comprises evidence in a court of law, Obama would likely be off the ballot in Georgia. But they have nothing. They will always have nothing. Because their actual problem with Obama isn't where he was born. Their actual problem is what he was born -- i.e., black.

-- Badtux the Law Penguin

A matter of jurisdiction and standing

So birthers in Georgia filed complaints with the Georgia Secretary of State that Obama wasn't eligible to be President because he wasn't natural-born (apparently he was born artificially in a test tube?), and the Secretary of State sighed and put the matter in the hands of an administrative law judge to decide. Now, administrative law judges aren't exactly criminal or civil judges. Really, they're not judges at all in the traditional sense of the word. Instead, they make decisions about whether state regulations are being properly applied or not. They are, in essence, clerks, not judges in the traditional sense of the word.

So anyhow, O'Really Taitz was one of the complainants, and promptly subpoena'ed Obama to testify at the hearing via filing service on Obama's Georgia lawyer. Said lawyer than complained that this was nonsense, you couldn't subpoena a sitting President into what's essentially an administrative proceeding internal to the Georgia state government that should simply review the last two dozen court rulings against Taitz and dismiss the complaint out of hand, there was no jurisdiction to subpoena Obama because Obama was not a citizen of the state of Georgia and thus not subject to the jurisdiction of the state of Georgia. The administrative law judge said "Oh yeah? Well I'm going to uphold the subpoena anyhow!"

So there it stands. Obama's lawyer basically said "Screw this, you have no jurisdiction and we will not participate, you've stamped your subpoena, now enforce it." Which is going to be problematic, because see, the Constitution sort of foresaw this problem, and made the President a citizen of the District of Columbia and thus subject only to Federal law for actions he takes as President. The only court with jurisdiction is the Federal District Court in D.C., not some podunk administrator in Atlanta. The only court that Obama must answer to as President is that court, not some clerk in Atlanta. And the lawyer for Obama *couldn't* participate, because participating would implicitly imply that this over-titled clerk had jurisdiction to issue a subpoena, which would open the flood gates to every clerk in every city hall who had a beef against the President issuing a subpoena to their own dog and pony fiasco.

Which, BTW, is an apt description of what actually happened when the hearing actually got underway. No lawyer for Obama. No Obama. Just a circus side-show of freaks and lunatics that were so ridiculous that even the administrative law judge, who is apparently a hard-core Republican but not an insane one, started cutting them off while rolling eyes and sighing heavily.

And no ruling, of course. I'm sure he wants to be well away from that collection of lunatics before he issues a ruling, probably via having a courier deliver it rather than announcing it in person. Because by this time it *has* to be obvious to him exactly what kind of people he's dealing with and that ruling any way other than the obvious (that a dude born in Hawaii is a natural-born citizen as defined by the Constitution) will result in the sort of circus that will consume his life.

-- Badtux the Law Penguin

The Great Blackout of 2012

Today if you went to Wikipedia, you discovered it wasn't there. Why? Because they, like tens of thousands of other sites, were protesting copyright bills in Congress that basically would allow anybody to take down any web site at any time (via redirecting their web site's domain name in the global name registry so that you get a FBI warning instead) by making a spurious claim that said web site was "hosting or encouraging the hosting of copyrighted material". No trial. No jury. No recourse to get your domain name back other than suing the person or entity who made the complaint, which isn't practical for most people, since it's generally law firms out to extort money from ordinary civilians that will be engaged in this sort of conduct (that's true in Germany where such a law is already in place, and there's no reason to think it wouldn't be true here too).

In short: We're talking about a law that would be good only for lawyers, not for anybody else on the planet. It wouldn't even be good for the Hollywood studios pushing it, since all that happens if the global domain name service goes black for accused copyright violators is that alternate distributed name services that are much harder to shut down will go into service, much the same way that the shutdown of the centralized Napster service led to the current Bittorrent decentralized system.

Lawyers. That's the only people who will benefit. Bah humbug!

-- Badtux the Practical Penguin

So the Koch brothers are criminals?

Color me unsurprised.

If you or I sold something to Iran, we'd be spending 25 to life in Club Fed. But to people like the Koch brothers, the law is for the little people, not for them.

Especially annoying is the fact that they bribe their way into contracts with governments and large corporations worldwide. This is illegal for two reasons: 1) it's unfair to small businesses, and 2) it's completely antithetical to the operation of markets. It's unfair to small businesses because small businesses don't have the resources for big bribes and thus get shut out of contracts they could otherwise fulfil. It's antithetical to the operation of markets because functioning markets depend upon buyers choosing the best solution, not the one paying the biggest bribe to the contracting officer. Remember, the whole purpose of markets is to match buyers and sellers according to best match (i.e., best deal for buyers, best performing sellings). When you short circuit that with bribes, you don't have markets -- you have crony capitalism, basically fascism with another name.

But of course to the Koch brothers, free markets, like laws, are for the little people. Oh sure they talk the talk. But talk is cheap. What counts is actions, and what the actions of the Koch brothers show is that they have as much disdain for properly operating markets matching supply and demand as they have for the law.

-- Badtux the Criminality Penguin

Running a web site is a dangerous business

Now, once upon a time, running a web site could get you sued, or get you fired from your job, or could cause your ISP to blacklist you, but that was pretty much it. I mean, look at the Nuremberg Files case. Neal "I Love Mule Sex" Horsley put up a web site advocating killing abortion doctors and got sued by Planned Parenthood, but because he was foresighted enough to form a dummy group "ACLA" to own the web site, "ACLA" is the group that got the $100M judgement against it -- and note that the 9th Circuit said PP could *not* force Horsley to take the web site down. The web site is still up, hosted in Outer Slobbonia somewhere because no American web host will host such a vile site. And Horsley is still alive and kickin'.

But see, that was in the old days, when Americans believed in courts and stuff when folks advocated killing Americans. Nowadays, well. not so much. If you're running a web site that says Americans are fair game 'cause they're killing little children in Iraq and Afghanistan, well. Death from the sky, dude!

The funny thing is that Anwar al-Awlaqi, an American, had actually filed a lawsuit against the U.S. government demanding a trial. The government killed the lawsuit by saying al-Awlaqi had to show up in NYC personally to file the lawsuit -- despite not being able to fly to NYC because he was on the no fly list (duh!). Then they killed al-Awlaqi, a dude who had never fired a shot at any other American, never personally done anything except run a web site. A nasty web site, certainly, just like the Nuremberg Files web site that Horsley runs. But just a web site, in the end.

So anyhow, remember, boys and girls. Running web sites no longer is just fun and games. If you start blogging something that says America needs to be overthrown because it's full of cruel people who want to kill Americans, a visit from guys in black suits is the least of your worries. Hey, what's that sound outside my window, is it

The Second Amendment and militias

So if the founders would have laughed if you talked about unorganized individuals overthrowing a tyrannical government, why *does* the 2nd Amendment exist?

The main reason the 2nd Amendment was added to the Constitution was that George Washington's disdain for state and local militia, who he called "useless", was well known and it was feared he was going to disband them. That caused a palpable shudder amongst Southerners, who like all slave societies lived in constant fear of slave rebellion and who wished to keep and bear arms in order to deal with slave revolts, and Westerners, who as with all conquerers who have not yet exterminated the native population had to deal with revolts of the native population ("Indians", they called the natives, even though the natives were more American than the "Americans"). In short, there was a fear that Federal power, dominated by the wealthy and populous New England states which had neither slaves nor a remaining population of Native Americans, was going to be used to disarm state and local militias which were needed to keep slaves and native Americans subjugated. Thus the "A well regulated militia being necessary to the safety of a free state" that starts out the 2nd Amendment -- you know, the clause that people always seem to leave out for some mysterious reason (hmmmm).

But what of this "the right of the people to keep and bear arms" thing, that's not about state and local militias, is it? Uhm... the first three words of the Constitution are "We The People". The word "People" doesn't mean one specific individual. It means the majority in a democratic society. Government in a democracy isn't some dictatorship imposed upon us. Government in a democracy is *us*, We The People, a collective "People", not individual people. Thus why the minority who don't want to pay a tax have to pay that tax in a democracy -- because the right to decide to pay a tax or not is a collective right in a democracy (i.e., a We The People right), not an individual right in a democracy.

That said, the Second Amendment's wording is vague enough that I do support an individual right to keep and bear arms for purposes of self defense against criminals, for hunting, and general fetishism (hey, some guys get it off by stroking inflatable dates, some guys get it off by stroking their guns, different strokes for different folks, right?). I support reading the Bill of Rights expansively regardless of which item of the Bill of Rights we're talking about. If we want to clarify that there is no individual right to keep and bear arms, there's a way to do that: amend the Constitution to say that. Just ignoring it is plain ridiculous.

But to say that the Founders intended individuals to be in possession of military weapons to use to overthrow the government is just plain balderdash. Even the Westerners didn't believe that weapons in their possession were useful against the U.S. Army. Thus the fizzle that the Whiskey Rebellion became once George Washington led the U.S. Army against them -- rather than fight the U.S. Army, the rebels threw down their guns and went home, leaving the ringleaders to sway in the wind.

- Badtux the Constitutional Penguin

Enablers of fraud

In my previous post I had a throw-away line about the pension funds suing the folks involved in the sub-prime scandal, including the credit agencies that fraudulently rated the toxic junk as "AAA+ investment grade". At which point the argument "Free speech! Free speech!" comes up.

But: There is no free-speech protection when it comes to matters of fraud. It is already known fact obtained via discovery of internal documents in current lawsuits that the ratings agencies were awarding investment grades to bonds that even analysts in the company thought were risky. It's hard to describe that as anything other than fraud.

The ratings agencies have spent a large fortune these past two years fending off legal and political attacks upon their fraudulent ratings. Fraud -- willful deceit -- is not free speech. Fraud is crime -- a crime in all 50 states of the United States. There are numerous lawsuits by pension funds -- including the massive CalPERS pension fund -- against the credit rating agencies for their complicity in fraud. The sad thing is that we're not seeing criminal prosecutions too. . The notion that credit agencies should be immune to prosecution when they are clearly complicit in fraud by awarding investment grades to investments THAT THEY KNEW WERE NOT INVESTMENT GRADE is as daft as the notion that a con artist should be immune to prosecution because the mark shoulda known that it was a con.

- Badtux the Legal Penguin

Urban homesteading

My family had an urban homestead in the 1970's -- we owned an acre of land in the middle of a city, and put most of it to use growing fruit trees and vegetables (originally there were chickens too, but zoning shut that down... what do you do with a chicken coop once the chickens are gone? It just stood empty, that's all). Every year we sold hundreds of dollars of figs from our fig trees -- a not insignificant sum of money back in those days, when you could buy a decent running second-hand car for under $500 that still had a little bit of new-car smell to it.

Little did I know that I was violating a trademark filed in 2008 back in 1975!

-- Badtux the Snarky Penguin

Copyright and state web sites

A lot of folks apparently are under the illusion that if you see a photograph or document on an official state website, that this photograph or document is automatically public domain. That is not true. Copyright law is a Federal law, one of the powers specifically granted to Congress, and there is no Federal law stating that public documents at the state or local level are public domain.

In short, you are at the mercy of your state's laws there, most of which simply state you can view public documents -- not that you can freely copy everything that has been placed into a public documents repository. That is especially irritating for those of us who do electrical work because the National Electrical Code has been written into law in many municipalities, but with local modifications. But the National Electrical Code -- AND its local modifications -- are copyrighted. In a place like the Silicon Valley where there are dozens of municipalities in a fairly small area, that means that either you spend a lot of money buying each municipality's slightly different copy of the NEC, or you just get the national NEC book and hope that the inspector will let you slide by on that.

So anyhow, what brought this on is that a restaurant owner thought that a photograph of Sarah Palin on the State of Alaska web site was public domain, and thus could be freely used on his web site. The photographer's lawyer strongly dissented on that one. It turns out that the State of Alaska did what a lot of states do -- rather than have a photographer on staff to create photographs of personalities and events, they simply licensed what is called "stock photography" -- photography from places like news services and private providers such as Getty Images that are still owned by their original photographers.

The copyright to virtually every photograph on any state's web site, in other words, still rests with the original photographer. The state merely licensed the right to use that image *on their web site*. And if you want to use it on *your* web site, you, too, must similarly pay a license fee to the photographer or photographer's agent (such as Getty Images).

Now, most of us aren't going to have to worry about a lawyer tracking us down. We're arguably within a "fair use" category -- we're providing political commentary and discourse for free and using the photograph for illustrative purposes rather than for business purposes. But if you use one of these images on your businesses web site, expect to be contacted by a lawyer. Because these photographers make their living off of licensing fees for business use of their photographs -- and if you don't pay, they *can* ream you a new one under the law.

-- Badtux the Copyright Penguin

Taco meat filling

I wasn't going to comment on Taco Bell's "beef" tacos, which turn out, according to a lawsuit filed recently, to be only 36% actual beef with the rest of the "taco meat filling" being, well, fillers. I mean, okay, so their "beef" tacos are actually only beef-FLAVORED tacos. Is that surprising? And do I care, really, given that I live two blocks from a real taqueria where I can get *real* tacos where they slice the meat off a big hunk of real beef right in front of my eyes? If there's any surprise, it's that Taco Bell's "taco meat filling" has sufficient beef in it that beef comes first in the ingredient list.

So color me bored... until Taco Hell releases this statement:

'At Taco Bell, we buy our beef from the same trusted brands you find in the supermarket, like Tyson Foods. We start with 100 percent USDA-inspected beef. Then we simmer it in our proprietary blend of seasonings and spices to give our seasoned beef its signature Taco Bell taste and texture. We are proud of the quality of our beef and identify all the seasoning and spice ingredients on our website. Unfortunately, the lawyers in this case elected to sue first and ask questions later — and got their "facts" absolutely wrong. We plan to take legal action for the false statements being made about our food.' Greg Creed President and Chief Concept Officer Taco Bell Corp

What the fuck?! Let me get this straight. People are reporting the allegations of a lawsuit... a genuine news story... and this dumb fuck is threatening to sue them over it? And why am I calling him a dumb fuck? Well, it's simple. He just turned a simple lawsuit, one of undoubtedly thousands filed against Taco Bell every year, into a 1st Amendment issue. Someone starts threatening to sue folks for reporting the news, that gets my feathers ruffled, yo.

So that's what turned it from a "Yawwwwn!" food quality story that I had no intention of covering to a First Amendment story that's got my attention. Because when some dumb fuck corporate fat cat tries to bully the news media into not covering a genuine news story about a lawsuit against his company, that's a genuine *story*, yo, and Mr. Greg Creed just made it one where before there wasn't.

-- Badtux the Censorship-sniffin' Penguin

BTW, can Taco Bell sue over allegations made in a court of law? No. The whole *point* of the court of law is to determine whether the allegations are true or not. You can file a lawsuit alleging that Barack Obama is a secret Muslim Nigerian in a court of law and there's fuck all that Obama can do other than file a motion for dismissal based upon lack of evidence. He can't sue the people reporting on the lawsuit either because of that whole 1st Amendment thingy. In short, if Mr. Creed had consulted his attorney rather than jerked his knee, he would have realized that he's making an idiot out of himself with these nonsense threats. But then, you don't get to be CEO of a major corporation nowadays by being the brightest bulb in the chandelier, you get there by being the most venal, back-stabbing sales lizard on the planet...

Jury Nullification and the Drug War

In Montana, a jury could not be seated because every potential juror said they wouldn't convict on a charge of possession of a few buds of marijuana.

The general notion of juries refusing to convict on laws they don't agree with is called jury nullification, and sends judges into a dither and gets you a charge of contempt of court and some jail time if you dare mention it in a court of law. If you Google the term "jury nullification", you will find a number of Libertopian web sites arguing that jury nullification is the "last defense" against unjust laws.

The problem is, who decides what's an unjust law? In the American South prior to modern days (and sometimes even in modern days), a white man could literally murder a black man with impunity, because the all-white jury pools of the day viewed a conviction of murder for killing a black man to be unjust. The general view in the South was that killing a black man was more like killing a dog -- something that was unfortunate but which should be punished at most with a fine and a few weeks jail time, not by sending a white man to the electric chair. The whole notion of convicting a white man of murder when the white man killed a black man was considered absurd and a tyrannical imposition of an unjust law upon the Southern people.

So it's clear, from our own nation's history, that "jury nullification" creates miscarriages of justice when a member of the majority harms a minority with impunity because juries refuse to uphold the law. In short, the Libertopian notion that jury nullification would produce justice might apply in their Libertopia where unicorns are real and cotton candy grows on trees, but in our universe allowed the KKK to murder blacks with impunity. That is why "jury nullification" became verbotten -- it harmed minorities. Of course, the same might be said of the *current* system too...

-- Badtux the Legal Penguin

Who owns the damned mortgage, anyhow?!

By now pretty much everybody has heard about "mortgage-gate" -- where the banksters foreclosed upon homes where they didn't own the mortgage and where, in some cases, houses were foreclosed upon that didn't even have a mortgage on them.

Now, some folks say that this means that all these foreclosures were invalid. Well, probably not. Most of those homes that were foreclosed upon really were in default, though clearly bypassing the normal mechanisms resulted in atrocities. The real question is: Was the mortgage satisfied by the foreclosure action? Do the buyers have clear title to the formerly-foreclosed homes?

My best guess is that there are a lot of investment buyers who are going to get some unpleasant surprises shortly as they suddenly find the home they bought for cash at a foreclosure sale itself foreclosed upon by the real owners of the mortgages that the banksters fraudulently claimed they owned. Because see, if they are the legal owners of the mortgages, and the banksters, not the legal owners, got the money from the foreclosure sale... well. There was no legal foreclosure, and the mortgage lien has not been satisfied and legally remains on the title. And in many states, an unsatisfied lien above a certain percentage of the home's value can trigger a foreclosure sale.

Even in those states where the unsatisfied liens (unsatisfied because the banksters, not the owners of the mortgages, foreclosed on the homes) don't trigger foreclosure sales, the home now has a clouded title, meaning that you can't sell the damned thing without losing all your equity to someone you don't even owe money to. The deal being that the lien goes with the *house*, not with the owner of the house, and if nobody has paid it off either through a valid foreclosure or otherwise, it's still there.

Those of us in civil foreclosure states have a slightly easier (harder?) time of it here, because we're deed-in-trust states -- the deed to the home is in trust at a title agency, rather than having a lien on it. The title company gets to decide who to release the title to, and once they make that decision, there's an unclouded title -- if you were the valid holder of the mortgage and the title company released the title without paying you off (instead paying off a bankster who didn't own the mortage), you can sue the title company, but the title itself is clear and the buyer doesn't have to worry about someone foreclosing on him for a mortgage he didn't even know about. But even here there is going to be a problem with title companies having to fork over way more money than is in their reserves to the winners of the successful "you gave my title away without giving me my money!" lawsuits... and if the title companies collapse, who owns the titles to all the properties they currently hold in trust? And without solvent title companies to hold titles in trust, the whole deed-in-trust system collapses.

In short, it's a mess. But it's a mess for the buyers of the foreclosed properties in lien theory states, and it's a mess for the title companies in deed-in-trust states (which means it's a mess for both buyers and sellers there). As for the notion that the foreclosed properties will revert to their former owners... dream on. At best, if it can be proven that the property was fraudulently foreclosed upon, the former owner qualifies to get money equal to the equity he had in his home at the time -- which probably was none, for most of these properties, most of which were way underwater. In general, civil courts award cash damages rather than order substantive actions whenever it is possible to remedy the harm via cash, because that requires the least hassle on their part. In this case, from a legal point of view, the harm is the loss of equity that the foreclosed-upon homeowner experienced, and the remedy is, err, cash. And maybe an order to the bank that the foreclosure be stricken from the homeowner's credit report record, but that's the farthest that a court will go.

In other words, people saying that this is going to keep people in their homes, or return people to their homes, are smokin' crack. That's just not how our legal system works or, for that matter, has ever worked -- the English common law system we inherited is predisposed to cash remedies where those are sufficient to deal with economic harm done. All that's going to happen now is that the banksters are going to have to go back to the investors who own the mortgages and get the mortgages legally assigned back to them before going to foreclosure. Well, that and cleaning up the past mess is going to be a big issue, because now we have several million people nationwide who own homes with clouded titles, where they can't sell the damned things because there's someone out there, somewhere, who owned the mortgage and still has a legal claim to a lien on the home -- and until that is sorted out, the title is stuck in limbo.

-- Badtux the Legal Penguin

The California ballot

Well, I got my ballot for the November elections in the mail today. I know who I'm going to vote for when it comes to the state races -- the Republicans have gone batshit crazy, so anybody who dares put an "R" by his name right now is just proving he's a loon, the Demos are idiots but at least they're not batshit crazy idiots. But then there's two whole pages of ballot initiatives, each of which are going to require me to do some research to find out who sponsored them, who benefits from each of them, and what's the catch behind each of them.

That's the problem with direct democracy. I'm one penguin. I don't have a staff to do that sort of work. My elected representatives do. Why the fuck can't they do their job and not require us busy penguins to do their job too?! I mean, I pay their fucking salaries to do shit like that! So anyhow, I'm going to take these ballot initiatives one at a time and talk about them here on the blog, tell you what I think, ask you for your own feedback.

So the first initiative is Proposition 19, which I'll call the "Cheech & Chong Initiative". This is the one that legalizes marijuana under California law. This is one of the few propositions that actually belong on the ballot -- marijuana legalization is one of those hot-button issues that legislators shy away from because it's unpopular with the powerful law enforcement unions, whose members benefit greatly from marijuana being illegal, yet marijuana is no more intoxicating or harmful than alcohol. If alcohol is legal, there isn't a damned reason why marijuana shouldn't be other than stupidity and Big Brotherism. I've never met a violent pot-head in my entire life. As long as you aren't a brownie, there's nothing to fear from potheads, they're mellow, mon. I do not partake of the herb myself, but look. Willie Nelson is like nine jillion years old and has smoked pot every day for most of those years. Yeah, pot sure ruins a dude's life, doesn't it? :-).

Next up: Proposition 20. Later.

-- Badtux the Law-readin' Penguin

Crazy Joe's unicorn shot

Yeppers, Crazy Joe Farrah, the loonie tunes behind World Nut Daily ("we're batshit crazy like Orly Taitz and our readers are too!"), sent out an email blast proclaiming "I rule Obama is ineligible." Erm, okay. And I rule that Joe Farrah is a unicorn. So let's all wait for him to trot out at his next press conference on four hooves with a horn sticking out of the middle of his forehead, right?

BTW, under the Constitution the House of Representatives decides whether someone is eligible to be President or not, and lays out that the House decides this prior to January 20 of the year the President is supposed to take office. The House decided to seat President Obama back in January 2009, and under the Constitution there are no redos on that decision. But oh wait, I forget, according to Crazy Joe that doesn't count because the House was comprised of Democrats in January 2009, and nothing done by Democrats counts because, well, because. Alrighty, then!

-- Badtux the Snarky Penguin

How's that Hopey Changey stuff workin' fer ya?

Back during the Democratic primaries I was pretty much an "Anybody but Barack" guy because looking at his actual policy proposals, rather than at the color of his skin or the excesses of his rhetoric, it was pretty much clear that he was just another conservative politician and we needed some real change, some real hope, not just more of the same conservative policies that have driven this country into the ground over the past 30 years. The sole thing he had going for him over the nominal Republicans in the 2008 race is that he wasn't batshit crazy or delusional. The results so far haven't contradicted my opinion then... the "stimulus" was the minimum needed to keep the entire world economy from collapsing, but not enough to bring the economy back from the edge -- i.e., a conservative stimulus. The health care reform was basically the right-wing Heritage Foundation's healthcare reform proposals from 1994, brought up to date with world events since then. The catfood commission is still out there threatening to gut Social Security and Medicare. And so on and so forth. Not a single one of these are liberal policies, which would have created a new WPA, poured stimulus money into temporary bumps in SSI and unemployment compensation amounts and food stamps, single-payer health care, and so forth.

But one of the few things Obama did appear to promise, as a constitutional law professor, was to bring back rule of law rather than rule by imperial fiat as the modus operandi of the administration. Alas, it is not to be. The Obama Administration, in their successful squashing of a lawsuit over the extraordinary rendition program that makes a mockery of the Constitution's prohibition against torture in the 8th Amendment, successfully argued that only the Emperor of the United States of America is qualified to judge whether a lawsuit by a private citizen (Binyam Mohammed) against a private corporation (Boeing) should be allowed to continue.

The most hilarious thing is that the United Kingdom is nominally an imperial state under Queen Elizabeth II, and has no Constitution or bill of rights... yet even their courts disagreed with the notion that these lawsuits should not be heard in the courts. As is proper -- rule of law requires that courts, not the Emperor, make these kinds of judgements. And rule of law is the only alternative to rule of gun. Without rule of law, nations inevitably become either ungovernable as people withdraw their support from a government that they feel does not represent them, or become tyrannies as governments compel their support. Your guess as to which route I believe the United States is slowly sliding down right now...

-- Badtux the Law Penguin

The right verdict

Yesterday, a Los Angeles jury found that former BART cop Johannes Mehserle is guilty of negligent homicide (involuntary manslaughter) in the execution-style shooting of Oscar Grant. He now faces 5 to 14 years in prison.

The predictable suspects then start yammering about how Mehserle got away with murder yada yada. Nonsense. A cop going to prison is hardly "getting away" with anything. Furthermore, despite my well-known distaste for most of today's so-called "peace officers", who behave suspiciously like the jackbooted thugs of Soviet Russia, I would have voted exactly the same way if I'd been on that jury.

Look: The burden of proof is reasonable doubt, and Mehserle introduced reasonable doubt into the case for him deliberately killing Grant when a) he claimed he thought he had a taser rather than a gun in his hand, and b) his defense team introduced evidence showing that BART had given him no (zero) training in taser use that would help him distinguish between pulling his taser and pulling his service weapon in the heat of action. Once Mehserle introduced this defense, the prosecution had to prove that Mehserle *knew* he'd pulled his handgun rather than his taser in order to get a murder conviction, and there was no way to prove that. Personally I think he lost it and executed Grant, but the problem is, there's enough doubt there that I would have voted the same way as the jury. It just wasn't possible for the prosecution to prove Mehserle knew he'd pulled his gun rather than his taser.

So anyhow: I think justice is served here. The system worked the way it's supposed to work, for once. It may bum some people out that our courts require this little thing called proof of intent to convict someone of murder, but that is how a working court system is supposed to work. Reasonable doubt may seem a bummer sometimes, but what's the alternative? That people must prove they're innocent beyond all doubt in order to avoid conviction? Can any of us, anywhere, prove we're innocent of anything at all? About the only thing I can prove I'm innocent of is the murder of John F. Kennedy... and that one is because zygotes don't shoot well. "Reasonable doubt" may seem silly when we're "sure" that someone is guilty, but the alternative is gross miscarriage of justice on a mass scale, since virtually nobody can prove they're innocent. Where were *you* on November 22, 1963? Can you prove it?

-- Badtux the Law Penguin

Left wingnuttia, just like right wingnuttia...

... i.e., gullible.

The case of Debrahlee Lorenzana, who claims she was fired from Citi for being too attractive, is a case in point. She has made all these claims against specific bank managers, but has nothing to back up these claims other than her own word. Yet left wingnuttia, gullible fools they be, have bought it hook line and sinker.

Sigh... look, anybody can file a claim that makes accusations. That doesn't mean the accusations are true. Crap, Orly Taitz files a claim every other day saying that President Obama is a secret Muslim Nigerian and thus not *really* President, but that doesn't make it true. As much as I agree that Citi is evil, Citi is also a giant bureaucratic corporation and you can be damned sure that if she got fired from Citi, there's a thick file on her telling exactly why, because it's almost impossible to fire someone from those big corporations like that unless you've got everything documented to a fare-the-well. You think it's hard to fire a teacher, you ought to see what it takes to fire a full-time employee of Citi or any other Fortune 500 company. It ain't easy, nosirree, they'll shuffle a person to a different position or to a different department long before they fire that person.

So what does Citi say? "Ms. Lorenzana has chosen to make numerous unfounded accusations and inaccurate statements against Citibank and several of our employees. While we will not discuss the details of her case, we can say that her termination was solely performance-based and not at all related to her appearance or attire. We are confident that when all of the facts and documentation are presented, the claim will be dismissed."

Note that this is *not* the typical non-denial denial that basically says nothing. This is pretty damned specific, which says to me that Citi's law critters think they have a pretty good case. And furthermore, this case is going to be heard by an arbiter, not by a jury, so why the media blitz? Arbiters aren't swayed by media pressure, indeed, a media blitz typically prejudices them against the person. What that tells me is that Ms. Lorenzana already knows she doesn't have a case and will lose when it goes to arbitration, so she's using this opportunity to punish the people who fired her by dragging their name through the mud -- and gullible fools are buying it.

My speculation on why she was fired? Language skills. Watch her interviews on YouTube. She struggles with English pronunciation big-time. She was hired as a business banker in a midtown branch, where the majority of people she met would be white businessmen -- and her English language skills simply weren't up to dealing with them. My bet is that her personnel file is full of complaints from customers demanding to be reassigned to some other representative because they couldn't understand her, at which point she was transferred to a non-customer-facing position -- a typical response of a large corporation to such complaints. My understanding is that she felt that this was punishment and a demotion, and stopped showing up for work regularly, at which point she was fired. Of course, we'll never actually know, since arbitration proceedings are not entered into the public record... but my suspicion is that the arbiter isn't going to take a long time to rule against her, and then she's going to be on the news yet again claiming the arbiter was biased against her because she was "too attractive". Siiiiiigh!

-- Badtux the Skeptical Penguin

Definition of "stupid"

So you want the judge to rule your way in a case coming before him at an upcoming trial. So what is your preferred method of doing so? a) Have a good lawyer and the facts on your side, or b) ask your supporters to spam his personal Blackberry email account?

Most of us have a smidgen of brains and would choose (a). But that was too righteous for sleazy infomercial pitchman Kevin Trudeau, who makes his living by being loud, obnoxious, and brainless. So he chose option (b). And promptly got 30 days in jail for contempt of court.

Lest you talk about "freedom of speech", harassment is not protected speech. Political speech is protected speech. Opinions are protected speech. But it's not legal to harass someone. You can't set up outside someone's home with a loudspeaker and spend 24 hours a day calling him a babykiller, for example. You can stand outside his home for 24 hours a day waving a sign saying that he's a babykiller, but the loudspeaker turns it into harassment and harassment is illegal. Once your speech goes beyond the purpose of communication and ventures into the realm of punishing someone, you've crossed the line. And when you cross the line with a judge... well. That might as well be the dictionary definition of "stupid", heh.

-- Badtux the Law Penguin

Good news and bad news

The good news: even a meth addict can find an attorney willing to represent him as he files a frivolous lawsuit. It means that you and I should have no problem finding an attorney willing to sue someone for real damages done to us, as annoying as it is for those of us who have been served with such a frivolous lawsuit.

-- Badtux the Law Penguin

"a moral and practical failure"

Creators of modern death penalty disavow it, stating that there are "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

Which is no surprise here. Any system which lets O.J. off for killing his ex-wife, while putting a kid to death for driving a car, cannot be said to be even minimally adequate at doing its supposed purpose. The failings of the death penalty could perhaps be excused if it served as a deterrent to crime, but it doesn't -- states with the death penalty actually have more murders per capita than states without the death penalty, even when the socio-economic status of the residents (the factor most tied to crime) is taken into account. So it's clearly failing as a deterrent. The failings of the death penalty could perhaps be excused if it was the only way to keep murderers off the streets. But it isn't, life imprisonment without opportunity for parole costs less than the death penalty (due to all the checks and balances that are put into place to supposedly keep innocent men from being executed), and serves the same purpose.

Given all of this, it is clear that the death penalty is a moral and practical failure. It executes people for being poor minorities while letting wealthy people off the hook, and it is applied in ways which are an abject insult to the fundamental principals of justice. The only reason to have the death penalty given the fact that it is an unnecessary practical failure is because of blood lust -- a desire for vengeance. But blood lust and vengeance is not an acceptable principal for organizing a society around -- that way leads us into the realm of the Islamic and Israeli jihadis who try to kill anybody who has ever done them wrong, and in case you haven't noticed, both the Islamic states and the State of Israel are abject failures propped up only by Western infusions of vast sums of money (direct aid in the case of Israel, oil money in the case of the Islamists). Blood lust and vengeance is not Christian either, see Romans 12:19, which reserves vengeance to the Supreme Being. There simply is no -- zero -- justification left for the death penalty here in the United States, other than a justification of blood lust and vengeance which is completely contradictory to all moral codes that underly modern civilization.

-- Badtux the Law Penguin

Update: What effect has death penalty or lack thereof had on the murder rate in major states? Let's look at New York State vs., say, Texas. NY re-enacted the death penalty in 1996, and overturned it in 2004. So let's look at 2003 Texas/New York murder rates per 100k population and compare them to 2008 Texas/New York to see what effect the overturn of the death penalty law had in New York State. Let's see, 2003: NY 4.9 TX 6.4 , 2008: NY 4.3 for 13% improvement, TX 5.6 for 12.5% improvement, uhm, yeah, repeal of the death penalty made no -- zero -- difference in NY, it had same decline in murder rate that TX did!

Illinois - moratorium in 2000. What is 1999 murder rate vs. 2008 murder rate? IL: 7.7,6.1 for 21% improvement. TX: 6.1,5.6 for 8% improvement uhm, yeah, doesn't seem like the moratorium on the death penalty caused any loss of deterrence effect in IL either. Gosh, numbers, what great things they are!