A former DOJ attorney has made allegations against the civil rights division, claiming that a prosecution for voter intimidation against the New Black Panther Party was wrongfully dismissed. Attorney J. Christian Adams claims that he was told by his superiors that they had little interest in bringing cases against black defendants.
The investigation has focused on Minister King Samir Shabazz and Jerry Jackson, who were featured on several videos and news reports from election day. Shabazz is seen on the video holding a nightstick just a few feet away from the entrance to the polling location.
Adams resigned from the Department earlier this year and one of his superiors Christopher Coates, who was the Chief of the Voting Section, has also left his post and is now working for the Department in South Carolina at the US Attorney’s office.
A judge in Dickson County, Tennessee took a courtroom spectator into custody and forced him to submit to a drug test, all based on the judge’s “hunch” that he might be high on drugs. Well, the man passed the drug test, and then he filed a complaint against the judge.
Judge Durwood Moore was censured by the Tennessee Supreme Court’s Judiciary Court on May 1, 2009, the highest form of punishment short of seeking a judge’s removal from the bench. The court also ordered Moore to “never violate a person’s constitutional rights as he did to the Plaintiff.”
Now Judge Moore is being sued in Federal Court for his actions.
As a criminal defense lawyer, I was happy to see the Tennessee Supreme Court punish this behavior, but I cannot understand how this man can be permitted to remain on the bench. As a lawyer and a judge, Mr. Moore was sworn to uphold the Constitution of the United States and the State of Tennessee. In response to the complaint, he admitted that “plucking suspicious spectators from his courtroom and screening them for drugs was ‘the routine policy of the court’.”
It is impossible for me to accept that a judge presiding over criminal trials in the United States would think this is permissable. The Fourth Amendment to the U.S. Constitution reads as follows:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Judge Moore had to have been aware of these rights. As a criminal court judge, hearings are regularly conducted raising just these issues.
Either Judge Moore is mentally incompetent, or he is arrogant to the point that he believes he is above the law. Either way, he shouldn’t be granted the privilege of judging others and deciding whether a citizen’s constitutional rights have been violated.
It is not unusual for lawyers to witness judges who have allowed the substantial power they wield go to their heads. Here on Long Island, I had the unpleasant experience of seeing first hand the damage an out of control judge can cause. Judge B. Marc Mogil spent his time on the bench making life a living hell for criminal defendants and their lawyers. The New York State Commission on Judicial Conduct had the good sense to remove him from the bench. Take a moment to read the court’s decision. It makes for very entertaining reading, and it’s all true.
These instances seem to me to be examples of a fundamental misconception of open legal proceedings. Judges commonly refer to the taxpayer supported space they preside over as “my courtroom.” This culture allows the courthouse powers that be to subject spectators to arbitrary rules that defy logic. For instance, spectators and lawyers are not permitted to read(!) while a judge is on the bench in New York.
The whole purpose of public courtrooms is to allow the people to keep an eye on their government, not the other way around.
Maricopa County, Arizona Sheriff Joe Arpaio is a legend in his own mind. For years he has sought publicity for himself while trampling citizen’s constitutional rights. He obviously loves the attention. He commonly refers to himself as “America’s Toughest Sheriff.” Back in 2002, he described himself like this:
“I’m very outspoken and a high-profile guy, the toughest sheriff in America and all that, well-known everywhere.”
I can’t argue with his popularity. The voters love him, and he keeps getting re-elected. On the other hand, there’s a whole web site dedicated to getting him out of office. In questioning his sanity, the site brings up his claims of having arrested Elvis Presley and breaking the Freanch Connection case. There is no evidence that either of these claims are true.
Among the more outrageous things he’s been responsible for in his colorful career include denying pregnant inmates pre-natal vitamins and appropriate care, leading to the death of at least one baby. He has paraded inmates through town wearing nothing but pink shorts and flip flops. He has also recently encouraged one of his deputies to defy a judge’s order, resulting in the deputy’s incarceration. Now he is trying to have the judge prosecuted in what can only be viewed as punishment for daring to stand up to America’s Toughest Sheriff.
He apparently has a real problem with hispanics. His treatment of Alma Minerva Chacon was downright criminal.
Mr. Tough Guy is also engaged in a one man crusade to crack down on illegal immigration. Trouble is, his department is pulling over just about every hispanic looking driver in the county. That’s called racial profiling, and this crusade has been brought to the attention of the U.S. Justice Department. Sheriff Joe and his buddies are undeterred.
Lydia Guzman is fighting back. She runs a nonprofit immigrant advocacy group called Respect/Respeto. The organization has created a sophisticated texting tree which is designed to alert Latinos to immigration sweeps.
Is this legal? Well, surprisingly enough, the Sheriff doesn’t think so. Andy Hassick, a constitutional law professor at Arizona State University, syas that “sending messages with the specific intent of warning illegal immigrants to help them avoid arrest could be akin to being an accomplice after a crime.”
Other legal scholars tend to differ with him, though.
David Hudson Jr., a First Amendment scholar at the First Amendment Center at Vanderbilt University, said the messages are protected free speech because they are merely letting people know what Arpaio is doing, similar to publicizing DUI checkpoints and speed traps or flashing your headlights when police are nearby.
“That is not unlawful,” he said. “It’s the conveyance of truthful information.”
First inmate strip search trials. Now this. It’s been a bad couple of months for the Nassau County Correctional Center in East Meadow, New York. On December 29 corrections officer Mark Barber was accused of having “inappropriate relationships” with six women inmates. The 58 count complaint accuses Barber of rape, official misconduct, sexual abuse, forcible touching, and promoting prison contraband.
According to Nassau County District Attorney Kathleen Rice, Barber would “befriend them, get overly friendly with them, remind them of the position of power that he was in, and how he could make their life very difficult if they did not do what he wanted them to do, and in turn, he was very good to them. He gave them cigarettes, he gave them stuff from the commissary. He allowed them to make phone calls at times that other inmates were not allowed to make phone calls.”
Barber has been suspended without pay.
These types of allegations are nothing new.
Read this blog post by Nicole Summer about female inmates and sexual assault. Ms. Summers writes the following:
“The power dynamics in prison severely disadvantage the prisoner, who is at the absolute mercy of her guards and correctional officers, relying on them for necessities such as food and for the small privileges and luxuries such as cigarettes. Guards have unlimited access to prisoners and their living environment, including where they sleep and where they bathe. With such an imbalance of power, the likelihood of sexual assault increases. Sexual abuse in prison can range from forcible rape to the trading of sex for certain privileges. While the latter may seem consensual to some, the drastic power disparity makes the idea of “consent” almost laughable.”
The ACLU addressed this subject in an article published in 2006. Their investigation revealed that “In many women’s prisons, male corrections officers are allowed to watch the women when they are dressing, showering, or using the toilet, and some guards regularly harass women prisoners. Women also report groping and other sexual abuse by male staff during pat frisks and searches.”
According to this same article, The United Nations Special Rapporteur on Violence Against Women found that sexual misconduct by male corrections officers against women prisoners is widespread in United States prisons and constitutes a human rights violation.
The Prison Litigation Reform Act of 1995 may have unwittingly served to protect prison guards from civil rights lawsuits brought by inmates. See this article by the ACLU.
Of course, male inmates are also subject to sexual abuse, as has been well documented. In fact, an unusual criminal case is being prosecuted in Wisconsin where female guards are accused of sexually assaulting male inmates. The guards claim that they were seduced by the prisoner.
More indictments like this one on Long Island may help to discourage future crimes of this nature to some extent, but all evidence seems to indicate that this problem is widespread. It boils down to the fact that prison guards have absolute power over inmates, and there is no easy way to change that dynamic.
After 26 years in office, Ed Jagels is retiring as District Attorney for Kern County, California. There will be much rejoicing in many corners. Mr. Jagel’s controversial career inspired a book and a documentary film, both of which accuse him of trampling defendant’s rights and imprisoning innocent people. He is perhaps best known for the many child abuse prosecutions he brought without any real evidence of the defendants’ guilt, while ignoring exculpatory evidence. Read this article from Rolling Stone magazine for more details on these cases.
Edward Hume, the author of “Mean Justice”, has a table on his web site which documents the instances of wrongful prosecutions Mr. Jagels was responsible for in Kern County.
To learn more than you probably ever want to know about this guy, check out this post from the Reason web site.
The Obama administration has finalized plans to begin bringing Guantanamo detainees to Thomson Correctional Center, an unused rural prison in Thomson, Illinois. This move has been criticized as a political move which throws some pork to Obama’s home state while doing nothing to improve the situation of the detainees. It is also seen as dangerous in that it invites terrorism on U.S. soil.
The administration’s decision will also create what has been described as a “legal minefield.” The Center For Constitutional Rights has released a statement attacking the plan, and it’s fair to assume a lawsuit may follow shortly.
The U.S. Supreme Court ruled in 2008 that Guantanamo Bay detainees did “have the constitutional right to habeas corpus,” which allowed them to challenge the basis of their detention. See Boumediene v. Bush. The question now is whether moving these detainees to the United States broadens their constitutional protections.
The Boumediene decision may provide some answers. The court ruled that Guantanamo Bay was “in every practical respect a United States territory.” If that is the case, an argument can be made that the same habeas rights apply, and nothing more. One interesting point to consider is that the Boumedine case designated the detainees “enemy combatants.” In March of this year the Obama administration eliminated the designation “enemy combatants” for Gitmo detainees. This could provide the wiggle room needed to broaden detainee’s rights.
Moving the detainees to Illinois will undoubtedly bring new legal claims on their behalf, but the real effect of this move, if any, remains to be seen. Tom Parker, a policy director for Amnesty International, certainly doesn’t see it as a positive development:
“Military Commissions amount to little more than a cynical attempt to create a trial format with a sufficiently low burden of proof that it will admit evidence that could not be used in a real court. The concept of indefinite detention violates one of the most fundamental tenets of American – and international – justice that every defendant has a right to challenge his accusers in court. Both set disastrous precedents… Changing Guantanamo’s zip code does not make indefinite detention any less palatable or military commissions any more legitimate.”
The Mesquite, Texas Independent School District has barred four year old Taylor Pugh from attending pre-school because his hair is too long. The District has a dress code that is enforced against all students, regardless of age. His parents say that he wants to grow it long so that he can donate it to the Locks of Love Program. The parents believe he has a right to wear his hair as he wants.
I doubt this will turn into a court battle, but this wouldn’t be the first time. The Supreme Court has ruled on a student’s right to First Amendment free expression, in the 1968 case Tinker v. Des Moines Independent Community School District. That case involved a student’s right to wear a black arm band to protest the Vietnam War. The decision, however, did specifically fail to include matters of dress code and hairstyle in its free expression first amendment analysis.
Therefore, federal courts have come down on different sides of this issue. The decisions revolve around whether or not the regulations only incidentally infringe upon a student’s free expression rights. As a general rule, school districts are given wide latitude with dress codes because they foster hygiene and discipline.
For more information on this topic, read the First Amendment Center’s “student expression” page and this page from the Southern Poverty Law Center.
Whatever happens, the School district won’t come out looking too good here, especially since the kid is growing his hair to donate to other kids with cancer. The story has been getting a lot of press, such as this article in the Dallas Morning News.
If you care to look, the School district Web Site contains the dress code that’s causing all this fuss. Then sit back and enjoy this old tune from the sixties.
In the midst of the “climategate” controversy and on the eve of the U.N. Climate Change Summit ,the U.S. Environmental Protection Agency formally declared last week that greenhouse gases “threaten the public health and welfare of the American people.”
This statement is significant because of the 2007 Supreme Court decision in Massachusetts v. EPA, which held that the Clean Air Act granted the EPA the authority to regulate CO2(carbon dioxide) emissions. Carbon Dioxide is one of the greenhouse gases covered by last week’s EPA determination. The EPA may now regulate greenhouse gas emissions if Congress chooses not to act soon.
There has been a great deal of controversy over what is seen as the EPA’s usurpation of power from Congress, which is constitutionally given the sole power to enact laws.
Despite this sentiment, the EPA appears to be on solid constitutional ground here. Although Congress supposedly cannot delegate legislative authority to other branches of the government, the Supreme Court will allow it so long as Congress provides an “intelligible principle ” which governs the agency’s authority. As a practical matter, the Supreme Court allows this Congressional delegation freely. Hence, Congress and the Supreme Court have granted a great deal of independent power to Executive Branch agencies, such as the IRS, the FDA, the Federal Trade Commission, the FCC, and all of the other agencies making up the “fourth branch” of government.
The EPA finding (and especially the timing of the announcement) is seen as a power play to force Congress to enact greenhouse gas legislation, such as a cap and trade bill. It seems to me that it might also provide cover for Congress, as a drawn out battle for a controversial cap and trade bill might never succeed, and if it does, democrats may pay a high political price at the polls come November.
The Center for Constitutional Rights has been in the news a lot recently. Fresh off its big Acorn victory last week and Monday’s set back when the Supreme Court declined to hear its Guantanamo torture suit, word has spread about its amended lawsuit against the city of Pittsburgh. CCR had joined with the local chapter of the ACLU in bringing a case on behalf of the Seeds of Peace Collective and the Three Rivers Climate Convergence against the city for its “harassment and intimidation” of G-20 protesters.
The amended complaint was filed late Friday. It accuses city officials of having “deliberately adopted a strategy to harass, intimidate, discourage and ultimately prevent Three Rivers Climate Convergence and the Seeds of Peace Collective from exercising their constitutionally protected rights to free speech and assembly.”
Citizens enjoy the right to demonstrate and protest on public property. See Hague v. CIO, which ruled that “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
The First Amendment grants the people the right “peaceably to assemble.” Undoubtedly the defendants will try to claim that the protesters were not acting peacefully. The plaintiffs contend that “The First Amendment does not allow the government to use possible vandalism by a few to justify suppressing the free-speech rights of many…”
Tensions were high before the G-20 Summit, as this July article reveals. Additional police were brought in as part of summit preparations.
For a real time version of the events from a protester’s perspective, read this post.
O.K. I admit it. Yes, I passed the Bar, but I couldn’t remember what a Bill of Attainder was. To be more precise, I couldn’t remember whether I ever knew what a Bill of Attainder was. Now that the Center for Constitutional Rights has succeeded in helping Acorn get a preliminary injunction in its lawsuit against Congress, I decided to learn about this legal concept that is causing so much fuss.
The American Heritage Dictionary defines a Bill of Attainder as “a legislative act finding a person guilty of treason or felony without a trial;”
Under English Common Law, a criminal condemned for a serious crime (treason or a felony, but not a misdemeanor) could be declared “attainted”, meaning that he no longer enjoyed his civil rights, including rights to his property.
The United States Constitution bars Bills of Attainder. Article 1, Section 9 reads in part that “No bill of attainder or ex post facto Law shall be passed.”
Last week Judge Nina Gershon granted Acorn’s request for a preliminary injunction, thereby preventing Congress from cutting off funding of the organization pending the final outcome of the case. In so doing, the court found that Acorn would likely succeed in having Congress’s action in defunding the group declared an unlawful Bill of Attainder.
This is a big deal from a legal standpoint. As the court pointed out in its decision, only five times in the history of the nation has the Supreme Court declared an act of Congress to be a Bill of Attainder. In all of those cases, Congress had interfered in an individual or group’s political freedom in denying them employment.
Judge Gershon made a major legal leap in finding that Acorn is in the same situation. As the court itself noted, “the idea that the deprivation of the opportunity to apply for discretionary federal funds is “punitive” within the meaning of the attainder clause seems implausible.”
The court admitted that there is no Supreme Court or Circuit Court precedent for its opinion, so instead it relied in part on a Florida District Court case. It also referred to the Supreme Court decision in United States v. Lovett, though it’s not clear why. The Government distinguished the Lovett case in arguing that Acorn employees had no vested property interest in their jobs, as they admit. The Lovett plaintiffs had actual government jobs. The Court seemed unmoved by this argument and others presented by the government. Reading the opinion, you get the distinct impression that the court knew how it wanted to rule, and ignored obvious precedent against Acorn’s claim. An example would be the court’s disregard for the Supreme Court decision in Flemming v. Nestor, which held that denial of an opportunity to apply for federal funding cannot be “punishment” for purposes of a Bill of Attainder claim.
Judge Gershon’s decision is being attacked on the right (here, here, and here) and praised on the left. Before the decision, it seemed that the lawsuit was a last ditch move by Acorn that was unlikely to succeed. Cynics are saying that Judge Gershon’s decision is more about politics than law.
Cynics are also saying that the government won’t appeal the ruling, because Acorn is very important to Obama’s political base.
