Support from an Unlikely Source

I was never a fan of President Clinton, and found him to be an embarassment at times.  But I actively opposed the impeachment proceedings at the time.  It was not that I liked what he had done - and I would welcome his punishment in the appropriate venue at the appropriate time.  But impeachment was neither.  In my view, impeachment proceedings require bi-partisan support, which did not exist.  If you pursue impeachment without active support of both sides of the aisle, you are playing politics and you will pay a price the next time the other guys have the majority. 

According to a NewsMax report today, Senator Obama agrees with me. 

And he is right.

My source: http://www.newsmax.com/archives/ic/2007/6/29/82249.shtml?s=al&promo_code=3685-1
Friday, June 29, 2007 8:21 a.m. EDT

Obama Opposes Bush, Cheney Impeachment

Democratic presidential candidate Barack Obama said Thursday he opposes impeachment of either President Bush or Vice President Dick Cheney.

The Illinois Democrat said he would not back such a move although he has been distressed by the "loose ethical standards, the secrecy and incompetence" of a "variety of characters" in the administration.

"There's a way to bring an end to those practices, you know: vote the bums out," the presidential candidate said, without naming Bush and Cheney. "That's how our system is designed."

The term for Bush and Cheney ends on Jan. 20, 2009.

  The senator, a Harvard law school graduate and former lecturer on constitutional law at the University of Chicago, said impeachment should not be used as a standard political tool.

"I think you reserve impeachment for grave, grave breeches, and intentional breeches of the president's authority," he said.

"I believe if we began impeachment proceedings we will be engulfed in more of the politics that has made Washington dysfunction," he added. "We would once again, rather than attending to the people's business, be engaged in a tit-for-tat, back-and-forth, nonstop circus."

Obama spoke at a weekly constituent breakfast he and fellow Illinois Sen. Dick Durbin sponsor. He was asked about impeachment.

 

Another 5-4 Supreme Court Decision (race based school assignments)

Clearly the Bush appointments to the Supreme Court are having a significant impact.  A number of high profile cases are coming out of the current term of the Court with 5–4 decisions.

Of particular interest are a series of cases involving race as a factor in making public school assignments.  I agree with the result, having been troubled by affirmative action as merely reverse discrimination.  I like the Chief Justice’s comment, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The logic of that view is clear to those who look at law in a vacuum, but anathema to those who use law for social engineering.  Justice Kennedy, concurring with the result but issuing a separate opinion, prevents this case from overturning a broader range of affirmative action precedents.  But the the tide seems to be turning in a number of areas for the Court in this term.

Bravo !

My source: http://www.law.com/jsp/article.jsp?id=1183021578694

Ending Term, High Court Strikes Down Race-Based School Programs

In key separate opinion, Kennedy says race can be a consideration in limited instances

Tony Mauro
Legal Times
June 28, 2007

 

In a historic final day of the Supreme Court term Thursday, the justices by a 5-4 vote struck down plans in Seattle and Louisville, Ky., that used race as a factor in making public school assignments.

With both sides invoking the landmark case Brown v. Board of Education -- either to attack consideration of race by public schools or to support it -- the decision in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education represented a major doctrinal shift that can be traced to the Court's new members, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," declared Roberts in an opinion stating his views and those of Justices Alito, Antonin Scalia and Clarence Thomas, the Court's only African-American member.

But the Court stopped short of overturning its precedents on either school desegregation or affirmative action, as Justice Anthony Kennedy, in a key separate opinion, said race could still be a consideration in limited instances in devising school programs to end racial isolation and encourage diversity.

Still, the decision prompted Justice Stephen Breyer to read aloud from his angry 77-page dissent, which he said was "twice as long as any I have ever written." Breyer said the Court majority had swept aside decades of leadership in helping to end the effects of slavery and segregation. School boards, he argued, should have the ability to use race in fashioning programs aimed at preventing a return to school segregation.

Rarely, Breyer said, "have so few, so quickly, changed so much." It was a ruling that, Breyer said, "the Court and the nation will come to regret."

The decision, delivered more than six months after the case was argued, took a toll that was clear on the faces of the justices. As Breyer read from the left side of the bench, on the right side his ally Justice Ruth Bader Ginsburg was hunched over, looking sullen, while next to her Alito seemed exhausted and upset, supporting his head with his hand. Alito's vote may have been the key, because his predecessor Sandra Day O'Connor had upheld race-conscious affirmative action plans in some cases.

Roberts had read his majority opinion confidently, invoking Brown as the reason race should not be used as a factor in schools -- whether for benign or improper reasons.

Seattle, which Roberts said had never been under court orders to desegregate, used race as a tiebreaker in assigning students to schools where one race or another predominated. Jefferson County, Ky., comprising greater Louisville, had been subject to court-ordered desegregation, but the order was dissolved in 2001 when the district was declared "unitary." But the district still used race in deciding on transfer requests among schools.

Both school districts, Roberts said, "have not carried the heavy burden" of justifying why race should be used in the same way it was used before Brown, namely to tell children "where they could and could not go" to school.

The ruling brought swift reaction from the civil rights community. Wade Henderson, president of the Leadership Conference on Civil Rights, calls the ruling a "deeply disturbing" development that "illustrates profoundly that judicial appointments matter."

While decrying the decision as a tragic turning point, Henderson and other civil rights leaders by day's end clung to Kennedy's concurrence, which appears to leave the door open to "general" efforts to encourage racial diversity, so long as they don't single out individual students for different treatment based on their race.

While joining the Roberts opinion in striking down the Louisville and Seattle programs, Kennedy parted company with some of the decision and said schools may still "pursue the goal of bringing together students of diverse backgrounds and races" through means such as magnet schools and locating new schools with demographics in mind.

"The more we look at Justice Kennedy's opinion, the more clear it is that there is an opening" for continuing efforts to prevent the resegregation of schools, says Theodore Shaw, president of the NAACP Legal Defense and Educational Fund. Shaw was in the courtroom as the decision was announced, just as Thurgood Marshall, his long-ago predecessor, was in the courtroom when Brown v. Board of Education was announced in 1954.

Shaw drew a parallel between Kennedy's opinion Thursday and the concurrence by Justice Lewis Powell Jr. in the 1978 ruling Regents of the University of California v. Bakke, which, over time, became viewed as the controlling opinion of the Court. The Powell concurrence was used as the legal justification for decades of affirmative action plans.

But groups that challenged the programs before the high court warned Thursday against using the decision to perpetuate race-based programs.

"With these decisions, an estimated 1,000 school districts around the country that are sending the wrong message about race to kids will have to stop," said Sharon Browne, a lawyer with the Pacific Legal Foundation who was part of the legal team representing parents who challenged the race-based programs in Louisville and Seattle. She called Thursday's decisions "the most important decisions on the use of race since Brown v. Board of Education."

The Bush Justice Department, which sided with the parents challenging the school programs, applauded Thursday's ruling as reaffirming "our long-standing position that outright racial balancing is unconstitutional and that state-mandated racial classifications have a profound stigmatizing effect." Spokesman Brian Roehrkasse adds, "The administration recognizes that school districts have an unquestioned interest in reducing minority isolation through race-neutral means that will improve educational opportunities for all children."

Announcement of the long-awaited ruling caused ripples throughout Washington, D.C. At an American Constitution Society panel discussion taking place across town, news of the decision came via BlackBerrys.

Akin Gump Strauss Hauer & Feld high court expert Thomas Goldstein, a speaker at the panel, said the term just ended would be regarded as "the birth of a new jurisprudential era." Stanford Law School professor Pamela Karlan added, "All I can say is, what an ugly baby." [Note: Goldstein is a contributor to Legal Times.]

The Court's final day has sometimes in the past been the dramatic occasion for justices to announce their retirement.

But on Thursday, the race cases and Breyer's sharp rebuke of his colleagues produced more than enough drama.

Still, there was a retirement announcement in the closing minutes of the Court's session. Roberts took special note of the retirement of Harry Fenwick, the Court's "food preparation specialist," after 38 years of service. Fenwick was in the Court chamber to hear his name mentioned.

 

Immigration Bill down again in Senate

I can’t say I am sorry about this – in its present form (whatever that was in the amendment/evolution process) this bill was not the right answer in my opinion. 

My source: http://news.yahoo.com/s/nm/20070629/pl_nm/usa_immigration_dc_16;_ylt=ApZsul5_82CWqMlDbp4MU8sE1vAI
Senate kills Bush immigration reform bill

By Donna Smith 58 minutes ago

WASHINGTON (Reuters) - The U.S. Senate dealt a fatal blow on Thursday to President George W. Bush's overhaul of immigration policy -- an emotional issue that has divided Americans in the run-up to next year's presidential election.

A crestfallen Bush conceded defeat and said he was moving on to other issues such as balancing the federal budget when it became clear the immigration legislation would not be revived during the final 18 months of his two-term presidency.

"A lot of us worked hard to see if we couldn't find common ground. It didn't work," said Bush, who has seen his approval ratings slump to about 30 percent amid anger over the Iraq war and a generally negative public mood.

The bill tied tough border security and workplace enforcement measures to a plan to legalize an estimated 12 million illegal immigrants, most from Latin America, and to create a temporary worker program sought by business groups.

It also would have created a merit-based system for future immigrants, something conservative Republicans sought.

The bill was the fruit of months of negotiations by a group of Republican and Democratic senators and the White House.

But the president was unable to overcome fierce opposition from fellow Republicans who said it was an amnesty that rewarded illegal immigrants. A majority of Republicans in the House of Representatives also opposed the Senate bill.

Supporters were dismayed and said it was unlikely Congress would tackle comprehensive immigration reform before the presidential election in November 2008.

"No one benefits now," said Rosa Rosales, the national president of the League of United Latin American Citizens. "It's very disappointing."

MIXED MESSAGES

Analysts say public understanding of the issue was clouded by reports by partisan think tanks and lobbyists as well as by accounts from "advocacy" journalists and talk-show hosts and the free-wheeling exchanges of Internet blogs.

Many opponents said illegal immigrants took jobs from U.S. workers, while employers from Arizona to Texas shot back that thousands of farm, construction and restaurant jobs were going begging through a lack of takers.

Mexican President Felipe Calderon said the U.S. Senate made a "great mistake" by defeating Bush's measure.

"The U.S. economy cannot keep going without migrant labor," Calderon said.

Bush has sought to overhaul U.S. immigration laws for years and the bill was seen as his last chance for a major domestic legislative victory before leaving office in January 2009.

The United States is building a 700-mile (1,100-km) fence along parts of its 2,000-mile (3,200-km) border with Mexico and boosting security by adding trucks with infrared cameras, sensors that detect footsteps and surveillance drones.

But even the bill's promise of an extra $4.4 billion for more border enforcement did not quell Republican opposition.

The bill was also opposed by some labor unions, which said its temporary worker program would have created an underclass of cheap laborers. Immigrant groups opposed measures in the bill that limited migration on the basis of family ties.

LINGERING ISSUE

The legislation failed to garner even a simple majority.

Only 33 Democrats, 12 Republicans and one independent voted to advance the bill, while 15 Democrats joined 37 Republicans and one independent to block it.

Five of the six senators running for president voted in favor of the overhaul: Republican John McCain and Democrats Hillary Clinton, Barack Obama, Christopher Dodd and Joe Biden.

In Los Angeles, a high-profile supporter of immigration reform, Roman Catholic Cardinal Roger Mahony, said the current system "will continue to permit the exploitation of workers, the separation of families, and will handicap efforts to secure our nation's borders."

A Pew Research Center survey found most Americans favored at least one of the proposal's major objectives, but the overall bill drew a negative reaction. A Gallup Poll put opposition at 60 percent among those who paid close attention to the bill.

For Juan Carlos Esquivel, a day laborer from Mexico City with a wife and three children, the defeat made no sense.

"There's work to be done, we want to do it, and now we can't," he said, standing in the shade against the searing heat in Phoenix. "So how can that be a victory?"

 

Fred Thompson on Capital Punishment

Fred Thompson’s blog entry for today deals with capital punishment.  I have spoken long and hard in favor of the death penalty for appropriate cases over the years.  Fred is on the right side of the issue, but he misses the easiest argument in support of his position.  Studies showing that the death penalty deters crime are difficult because it is not easy to prove a negative hypothesis.  Although Fred cites new studies supporting his postion.  But there have always been clear examples (you just won’t read them in the mainstream media). 

In a confined population, such as a correctional facility, it is logical and verifiable that the death penalty is essential for order and the protection of correctional officers.  In the absence of capital punishment, inmates with life sentences could commit any crime, including murder with impunity. Clearly there is a deterrent effect in these situations.

Fred’s view follows.

My source: http://abcradionetworks.com/article.asp?id=430760&SPID=15663
June 27, 2007

Common Sense on Capital Punishment?>?>?>?>?>

Our country seems to be able to come to the right conclusions over time, even when we’re being told over and over again that we're wrong. When I say the right conclusions, by the way, I mean conclusions supported by honest research and real evidence. I've got a good example -- capital punishment.

For decades, the self-proclaimed smart kids have been telling us that the death penalty just doesn't work. The people with the top jobs in academia and the news business have scoffed at the American people's insistence that executions prevent murder.

On the very surface of the issue, it would seem pretty obvious that an executed murderer can't murder anybody else -- but we’ve been told that we were wrong even about that. You've undoubtedly heard the old saw about executions actually motivating murderers to kill, presumably because what murderers really want is attention. The argument is a stretch, demanding that we believe that killers aren’t deterred by the consequences of being caught and executed. Without evidence, though, it's hard to rebut.

In the last few years, however, serious researchers have applied themselves to finding the evidence. Criminologists and economists have gathered and analyzed a mountain of data, and many of them were surprised by what they found. Now, they’ve published papers in respected academic journals that are establishing an unexpected consensus.

The reliable two-thirds of Americans who have always supported the death penalty probably wouldn't be surprised to find out that study after study has shown that the death penalty deters murders. Some studies show really dramatic effects, with each execution of a murderer deterring as many as 18 or more murders. That’s according to Emory University professors, who found as well that delaying execution also leads to further murders. Most studies have concluded that some number of murders between three and 18 are prevented for every application of capital punishment.

I guess the most surprising thing to me was seeing an article about these findings just a few weeks ago by the Associated Press. The most interesting quote was from a well-known opponent of capital punishment who looked at the evidence and said, "Abolitionists or others, like me, who are skeptical about the death penalty haven't given adequate consideration to the possibility that innocent life is saved by the death penalty."

Certainly, the use of DNA evidence to clear long-held prisoners from murder charges proves that we need to be more careful about handing out death sentences; and science must be used even more and earlier in the criminal process to protect the innocent and convict the guilty. However, these studies are important in properly analyzing the effect of the death penalty.

 posted by Fred Dalton Thompson on 6/27/2007 4:11:29 PM

More on the Fred Factor

I do not feel any obligation to present the opposing view to the articles or opinions presented here, because it is not unusual for my words or the article I persent to be the opposing view as contrasted with the mainstream media.  As Rush says, “I am equal time”.  However, as I express interest in Fred Thompson’s potential candidacy for President (and my support is tentative depending on the possibility that others will enter the race) it is reasonable to take a look at Mr Thompson’s record as a Senator. The following article is useful background

My source: http://www.townhall.com/columnists/JaniceShawCrouse/2007/06/28/should_conservatives_look_at_thompson%e2%80%99s_record_or_his_rhetoric
Should Conservatives Look at Thompson’s Record or His Rhetoric?
By Janice Shaw Crouse
Thursday, June 28, 2007

Fred Thompson is on the verge of declaring his candidacy for the 2008 race for President of the U.S. With his star quality and down-home demeanor he is already running second among the Republicans in some polls and first in others. Thompson’s “late” entry to the race and his quick rise to the top have to be frustrating to those candidates who slogged their way through organization-building and the early debates. It helps, of course, that Thompson has a well-connected wife with PR savvy and legions of powerful political friends willing to support and endorse a candidacy before it gets off the ground. One of the stars of the TV show, Law and Order, Thompson is often described as Reaganesque; he is tall, muscular, has a populist style, sincere manner and has an appealing show-biz quality that other candidates envy. The Reagan comparisons, of course, increased when he went to England to seek the endorsement of Lady Margaret Thatcher, a close friend, political ally and colleague of President Reagan. Obviously, when he declares his candidacy he will be scrutinized by opponents in his own party as well as by the opposition. He has a 10-year record as a Senator; reporters will be combing through that record and all the related rhetoric for indications of where he stands on various pivotal issues. His problems will likely stem from interviews in the early 90s when he said that he opposed criminalizing abortion and opposed a constitutional amendment protecting the sanctity of life. Further, at that time he told reporters that while he was pro-life, he didn’t support the prohibition of early term abortions. Those documented statements contrast with his solidly conservative voting record in the Senate. Thompson explains the difference by citing the effect of seeing his now 3-year-old daughter’s sonogram. At that time, he explains, the pro-life issue became a position of the heart as well as of the head. Another inconsistency that will haunt Thompson is the fact that he helped get the McCain-Feingold bill passed. That controversial legislation prohibited advocacy groups from explaining candidates’ positions from 30-60 days prior to primary and general elections. Though an original co-sponsor of the bill, Thompson now says that McCain-Feingold went too far. The Supreme Court agrees. Just this week, the Supreme Court reversed restrictions on “issue advocacy” –– a move that will enable groups to inform the public about candidates’ positions on critical issues during the last weeks of a campaign. Conservatives, then, will have to decide whether to put their vote on the line with Thompson’s rhetoric or stand with his record. A very experienced businessman once told me, “Managers don’t always hire the most qualified person; they hire the candidate that they are most comfortable with.” I’ve seen that happen over and over again. People hire people like themselves –– job candidates with whom they are comfortable. I think the same principle applies in the voting booth. People vote for the candidate they “like” and Fred Thompson is very likeable. People vote for the candidate that they feel they can trust, and Fred Thompson seems trustworthy. Voters go for the person who makes them feel comfortable, and Fred Thompson has the gift of making people feel like he is one of them. At the same time, he combines natural authority and a certain down-home dignity; no wonder his name comes to mind when producers are looking for someone to play an authoritative official for a movie or television program. It is entirely possible that, come November 2008, the voters will turn Fred Thompson’s way simply because he is likeable, seems trustworthy and they are comfortable with him. At this point, though –– about a year-and-a-half before the election –– Thompson has not even declared his candidacy, so any analysis of his potential in the race is pure speculation. It’s pretty significant, though, that nobody counts him out and people are falling all over each other to join his campaign.

An interesting week on the legal front

In my third post of the day dealing with legal issues, I note that the Supreme Court issued a 5–4 ruling chipping away at campaign finance regulations.  I have failed to understand how the McCain-Feingold Campaign Finance Reform Act could pass Constitutional scrutiny in that it abridges free speech, in my view, in the most delicate area of free speech – political dissent. Previous Supreme Court rulings have upheld the act (much to my surprise) so this case may be an indicator of a significant shift in direction with the addition of Chief Justice Roberts and Justice Alito.  I hope so.

My Source: http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1182762351892

In 5-4 Vote, Supreme Court Rejects Election Ad Restrictions

Tony Mauro
Legal Times
06-26-2007

The Supreme Court on Monday seriously weakened a key feature of the McCain-Feingold campaign finance law, possibly ushering in a new era of high court disapproval of measures aimed at reining in campaign excesses.

"Enough is enough," Chief Justice John Roberts Jr. wrote, referring to the expansion of government restriction on campaign speech that should be protected by the First Amendment. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

By a 5-4 vote, the Court said that the 2003 law's ban on pre-election ads that mention candidates by name and are paid for directly by corporations and unions was unconstitutional -- at least as it was applied to the advertisements at issue in the case before it. The ban applied during the 30 days before a primary and the 60 days before a general election.

Roberts devised a new standard that would allow such ads to be banned only if the ad is "susceptible of no other interpretation than as an appeal to vote for or against a specific candidate."

The decision may represent the biggest doctrinal shift of the newly constituted Roberts Court. It came in Federal Election Commission v. Wisconsin Right to Life Inc., involving ads the Wisconsin group wanted to run in 2004 on the issue of Senate filibustering of President George W. Bush's judicial nominees. Because the ads mentioned Wisconsin's senators by name -- and because one of them, Democrat Russ Feingold, was up for re-election -- the ads would have run afoul of the law. The Wisconsin group went to court seeking an injunction to protect the ads from being banned.

A three-judge panel in the District of Columbia said the advertisements were "genuine issue ads" that could not be banned. The FEC appealed to the Supreme Court.

Justice Samuel Alito Jr., the Court's other newcomer, joined Roberts in concluding that the McCain-Feingold law was unconstitutional, but only as applied to the specific ads in question. Three other justices -- Antonin Scalia, Anthony Kennedy and Clarence Thomas -- agreed with the judgment but would have gone further and found the law unconstitutional on its face, not just as it pertained to the Wisconsin ads. But most analysts say the net effect of the decision is to leave the enforceability of the electioneering ad ban in serious doubt.

Fred Wertheimer, president of Democracy 21, the leading strategist behind campaign reform legislation, says the decision will "once again allow corporations and labor unions to independently spend their corporate treasury funds and union dues on thinly disguised campaign ads masquerading as grassroots lobbying ads."

Sen. John McCain, R-Ariz., released a statement expressing regret that the Court had "carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election."

Steven Law, chief legal officer of the U.S. Chamber of Commerce, which opposed the restrictions imposed by McCain-Feingold, says, "This decision is a clear vindication of the rights of all Americans -- including the private sector -- to speak out and publicly petition their government."

The ruling represented another in a series of losses for the Court's liberal/moderate wing as the Court nears the end of its term. On Monday, it was Justice David Souter's turn to read a dissent from the bench, following in the footsteps of Justices John Paul Stevens and Ruth Bader Ginsburg, who have read dissents aloud in recent weeks.

Souter said mournfully that the majority had "effectively and unjustifiably" overturned the Court's decision of just four years ago, which upheld most of the McCain-Feingold law. Souter said that under the Roberts standard, even an ad that includes the "magic words" urging the public to vote for or elect a specific candidate could be allowed if it also contains mention of an issue.

"We really can't say for certain" whether Souter is right, says New York University School of Law professor Richard Pildes, who also says Monday’s ruling represents a "sea change" on the issue of election reform.

Conservatives have long viewed comprehensive campaign finance reform laws as an infringement on core political speech at a time when that speech is most important: before elections. But the Court's liberals, usually joined by one or two others, have generally upheld most campaign finance regulation in recent years, most extensively in the Court's McConnell v. FEC decision in 2003.

But with Roberts now leading the Court, joined by Alito replacing Sandra Day O'Connor, that conservative skepticism achieved a majority.

Monday's ruling "has revealed the Roberts Court, as I have feared, as moving firmly into the deregulationist camp," said Loyola Law School Los Angeles professor Richard Hasen on his Election Law blog.

Scalia, Kennedy and Thomas would have gone even further than their colleagues and overturned the 2003 McConnell decision altogether, or at least that part of it that said the electioneering ad ban was not unconstitutional on its face.

Scalia declared the 2003 decision "a flop" that has done nothing to stem the flow of money into campaigns. "The effect of [McCain-Feingold] has been to concentrate more political power in the hands of the country's wealthiest individuals," wrote Scalia, citing the growth of unregulated so-called "527 organizations" that have proliferated in recent years.

Scalia was also unbothered by the prospect of overturning such a recent Supreme Court precedent. "Overturning a constitutional case decided just a few years earlier is far from unprecedented," Scalia said, noting that in the First Amendment area, the Court in 1943 ruled that students could not be forced to recite the Pledge of Allegiance -- reversing its decision to the contrary reached just three years earlier.

 

American Justice - Would you like Fries with that - Part 2

I have commented previously that our system of justice is not so bad – the problem is the curious people who get to run it.  Recently this point was brought into clear focus when an administrative law judge filed suit against his dry cleaner for more than $50 million dollars for losing a pair of the judge’s pants – to the loud chorus of well deserved boos and catcalls of the media.

Fortunately the system is working through the matter with steps in the right direction.  The case has been resolved in favor of the dry cleaner with some initial costs awarded to the defendant.  A motion for attorney’s fees is to be considered later.  I hope that the Plaintiff administrative law judge can be removed from his position.  He has certainly demonstrated that his judicial philosophy is not what we need in the system (well, except for the 11th Circuit Court of Appeals in California – where he would fit right in – but that is a story for another day)

My Source: http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1182762359671

Judge Rules in Favor of Dry Cleaner in $54M Suit Over Missing Pants

Lubna Takruri
The Associated Press
06-26-2007

A customer who sued a dry cleaner on claims that they lost his pants has now lost his entire suit -- a $54 million one.

A District of Columbia Superior Court judge Monday rejected Roy L. Pearson's lawsuit that took a dry cleaner's promise of "Satisfaction Guaranteed" to its most litigious extreme. Pearson, an administrative law judge, won't get a penny.

Pearson became a worldwide symbol of legal abuse by seeking jackpot justice from a simple complaint -- that a neighborhood dry cleaners lost the pants from a suit and tried to give him a pair that were not his.

His claim, reduced from $67 million, was based on a strict interpretation of the city's consumer protection law -- which imposes fines of $1,500 per violation -- as well as damages for inconvenience, mental anguish and attorney fees for representing himself.

But Judge Judith Bartnoff ruled that the owners of Custom Cleaners did not violate the consumer protection law by failing to live up to Pearson's expectations of the "Satisfaction Guaranteed" sign once displayed inside the store.

"A reasonable consumer would not interpret 'Satisfaction Guaranteed' to mean that a merchant is required to satisfy a customer's unreasonable demands," the judge wrote.

Bartnoff wrote that Pearson, an administrative law judge, also failed to prove that the pants the dry cleaner tried to return were not the pants he took in.

Bartnoff ordered Pearson to pay clerical court costs of about $1,000 to defendants Soo Chung, Jin Nam Chung and Ki Y. Chung. A motion to recover the Chungs' tens of thousands of dollars in attorney fees will be considered later.

"Judge Bartnoff has spoken loudly in suggesting that, while consumers should be protected, abusive lawsuits like this will not be tolerated," the Chung's attorney, Chris Manning, said in a statement. "Judge Bartnoff has chosen common sense and reasonableness over irrationality and unbridled venom."

Speaking to a mob of reporters from at least nine different countries outside their dry cleaners Monday, the Chungs said they held no hard feelings toward Pearson. "If he wants to continue using our services, then, yes, we will accept him," Soo Chung, a Korean immigrant, said through a translator.

Chung later told The Associated Press that at one point during the two-year nightmare, her mother-in-law called from Korea with a proverb: "Don't feed hate with hate."

"I decided to listen to my mother-in-law," Chung said.

Pearson, who came to court during the two-day trial earlier this month carrying what he claimed was the pantsless jacket of the suit, did not respond to a call and an e-mail seeking comment.

The case began in 2005 when Pearson became a judge and brought several suits for alterations to Custom Cleaners in Washington. A pair of pants from one suit was missing when he requested it two days later, but turned up a few days after that. Those charcoal gray, cuffed pants were used as evidence in the trial, but Pearson broke down in tears remembering the argument in which he insisted he doesn't wear pants with cuffs.

The story garnered international attention and renewed calls for litigation reform.

"This case was giving American justice a black eye around the world, and it was all the more upsetting because it was a judge and lawyer who was bringing the suit," said Paul Rothstein, a Georgetown University law professor.

Rothstein said Monday's ruling "restores one's confidence in the legal system."

Calls have come from around the world for Pearson to be disbarred and lose his position on the bench. The city's chief administrative law judge is still considering Pearson's 10-year reappointment.

 

American Justice - Would you like fries with that?

Fred Thompson is resonating with the conservative base as an attractive candidate for President and a preferred alternative to the current list on offer with the media.  He is using the blog technology to publish his views on a wide variety of subjects, earning the nickname “Blogger-in-Chief” and appearing in “The Fred Dalton Thompson Report”. 

The following is Mr Thompson’s comments on the Scooter Libby case and the outrageous political miscarriage of what we laughingly call justice these days. I agree with Mr. Thompson that Libby should be pardoned by the President if his appeals are not successful – but with the current media/political climate, there will be a price to be paid with such an action.  Unfortunately, the administration’s delay in putting this incident behind them will run into the next election cycle and become more visibly the political football that is already is.

My Source: http://abcradionetworks.com/article.asp?id=419364&SPID=15663

June 06, 2007

Sentencing of Scooter Libby

The sentencing of Scooter Libby was the last in a series of acts that has resulted in a shocking injustice – one created by and enabled by federal officials. As I’ve been saying for many months, this is a “he said-she said” case about political infighting that would have never been brought in any other prosecutor’s office in America. 

The CIA started the ball rolling by sending the Democratic partisan husband of one of its employees to Niger on a sensitive mission. Knowing an opportunity when he saw one, he returned and blasted the Bush Administration (the fact that he blatantly falsified a few important things along the way is another story). It should not have been a shock to CIA officials when people then asked, “Who is this guy and why was he sent to Niger?” The only mystery in Washington is why the CIA employee-wife’s name, Valerie Plame, took as long as it did to leak. 

Nevertheless, the CIA demanded that the Department of Justice investigate the leak of her name (not surprisingly, the fact that the CIA was making such a request was leaked). This put pressure on the DOJ. The DOJ, in turn, promptly caved to the media and Congressional pressure to appoint a Special Counsel to investigate the Plame leak. However, there were two glaring problems for anyone with a sense of justice, or who may have gone to law school for one semester.

The Justice Department and the new Special Counsel knew that: 

1.) The leaking of Valerie Plame’s name did not constitute a crime because she was not a “covered person” under the relative criminal statue and,

2.) They already knew the name of the leaker: State Department official Richard Armitage. 

Yet small matters such as these do not matter much to Justice Department officials trying to cover their own fanny, or to a newly minted Special Prosecutor with a reputation to make and members of the media to satisfy. 

Special Prosecutor Patrick Fitzgerald proceeded to make public statements and employ tactics that would have brought condemnation in any other setting. He moved heaven and earth for a year and a half in order to come up with some sort of “process” crime against a high-level Administration official -- so that he could try them in one of the most anti-Bush Administration places in America, Washington DC.

The best he could come up with was a man who was not well known to the public, but who was basically working two full-time jobs after 9/11 -- trying to prevent such a thing from happening again. The White House physician says that, “Mr. Libby worked himself to exhaustion day after day reviewing national intelligence estimates.” Of course, he had to make time for hours of testimony before Fitzgerald’s grand jury and Fitzgerald found inconsistencies. At trial, practically every government witness not only was inconsistent with other government witnesses, but was inconsistent with regard to their own prior testimony. 

During his closing arguments, Fitzgerald did what has caused many a prosecutor to get a mistrial: He asked the jury to consider “facts” that had not been placed into evidence or proven in any way. It was so egregious it was even too much for the judge, who admonished him.

Mr. Libby was convicted of perjury and false statements. For sentencing, the federal probation office filed a statement that the applicable federal guidelines called for a sentence of from 15 to 21 months. He also identified several grounds for what is known in the law as a “downward departure” from that range. In this case, Mr. Libby had led an exemplary life, and had sacrificed in order to serve his country and will presumably lose his law license. In other words, under the law, the judge would have had ample reason for giving Mr. Libby less than 15 months, including probation. 

Fitzgerald, seeing this probation report and reverting to form as someone without professional judgment or scruples when it comes to landing his prey, weighed in.  Throughout the trial, Fitzgerald insisted that Valerie Plame’s status was irrelevant and that the defense could not use her status in any way. But now that it came time for sentencing, Fitzgerald insisted that her status be considered, and that Mr. Libby be treated as if he’d violated the law he’d never even been charged with. 

Proving once again that Fitzgerald can get away with practically anything in Washington, the judge apparently accepted Fitzgerald’s argument, contrary to all notions of basic fairness. The judge rejected his own probation office’s recommendation, not only doubling the 15-month minimum to 30 months, but also fining Mr. Libby $250,000 and giving him 400 hours of public service. Apparently, the judge is going to make Mr. Libby start serving his sentence in the near future, before he can get his appeal heard.

Unfortunately, this is an example of what Washington is all about these days. All too often the intersection of politics, law and the media results in a lack of responsibility by practitioners in all three areas. Having all this crashing down on the head of one man and his family, in a time when national security leaks are published regularly on the front pages of the newspapers without consequence, will justifiably add to the cynicism and outrage on the part of all observers. 

For the preamble to our Constitution, our founders stated explicitly the purposes for our Constitution. Listed even before providing for domestic tranquility or for the common defense was the establishment of justice. Official behavior, with regard to matters like the Scooter Libby case, are not what our framers had in mind. Now this excessive sentence, given by the Federal District Judge is just another in a long line of reasons why Mr. Libby should be pardoned.

 

A Helluva Thing to Watch

For a Republican stealth candidate like Newt Gingrich, an endorsement from Tom Delay, former House Majority Leader, would be something of a good news/ bad news sort of thing. But then, the following article by Mr. Delay is not really an endorsement and Mr Gingrich isn’t really a candidate yet.

My source: http://www.townhall.com/columnists/column.aspx?UrlTitle=newt_would_make_a_great_show&ns=TomDeLay&dt=06/19/2007&page=full&comments=true Newt Would Make a Great Show By Tom DeLay Tuesday, June 19, 2007

On May 20, 2007, Tim Russert had a quirky segment on "Meet the Press." His guests were Sen. Christopher Dodd (D-Conn.), who's running for president even though nobody knows it, and former Speaker Newt Gingrich, who isn't running but everyone knows he really is. In the middle of the back and forth, Gingrich was in the midst of rattling off one mistake after another made by the Democrat Congress in particular and Democrat Party in general, with regard to Iraq and national security. Russert stepped in with what is normally the best weapon a journalist has against a typical politician on a rant: "But specifically, what would you do differently?" Without missing a beat, Gingrich quickly rattled off an eight-sentence, 165-word, perfectly constructed paragraph detailing six specific presidential policy initiatives, dropping in along the way references to Iraqi force capacity, economic diplomacy, a naval blockade of Iran, biometrics and Abraham Lincoln. Whatever else can be said of Newt Gingrich, he is not a typical politician. Brilliant and unpredictable Newt He applies to public policy a knowledge of history that is simply unmatched in professional politics today. It's cliché to say someone's brain is like a sponge, but in Gingrich's case it applies doubly so -- not only does he absorb and retain almost every piece of information he encounters, but he can, with the slightest squeeze, blurt it back out at you in a different way from which it came in. He's the closest real-world comparison to the "West Wing's" President Josiah Bartlet -- quirky, unpredictable and almost impossibly brilliant. And while those qualities make for an engaging character -- especially when viewers demand a whole new series of issues to be introduced, debated and disposed of every week -- in real life there is something to be said for predictability in political leadership. A good example of what I mean is Gingrich's widely hailed performance in his recent debate against Sen. John F. Kerry about global warming. Now, having dealt with both of them, I would have expected Gingrich to clean Kerry's clock. And he did, just not in the way I -- or anyone else -- expected. Rather than attack the global warming fundamentalists' reliance on junk science, Gingrich conceded at the beginning of the debate that global warming does exist and is largely mankind's fault. Gingrich thus neutralized 95 percent of what Kerry planned to say, and turned the discussion away from whether global warming exists to what policymakers should do about it. Kerry was caught flat-footed and came across as out of touch; Gingrich had the debate he prepared for and appeared confident, informed and optimistic. It was a wonderful achievement of political and rhetorical jujitsu, which is great, … but then again, he turned his back on millions of conservatives who justifiably question global warming hysteria. This is the quintessential, irreducible Gingrich: tactically brilliant, strategically unpredictable. Yes, he cleaned Kerry's clock, but not until after he accepted Kerry's principal argument. He won the battle, but it's not clear his victory helped win the war. This is why conservatives mix admiration and skepticism when asked about his potential presidential candidacy. His presence in a debate up against the trite, over-rehearsed pabulum of his opponents will quickly propel him to the top tier of the field. I think he'll be a fantastic presidential candidate; he'll run circles around the other guys in the debates (and it's a deep Republican field, remember). But… More ideas than the GOP can handle But what? I don't know. No one does. But experience suggests there will be a "But…" As speaker, Gingrich's greatest strength was his greatest weakness -- that hyperkinetic brain of his generated more ideas than the Republican conference could manage at once. Sometimes Newt's Next Big Idea would change three times in a week. They'd all be brilliant, they'd usually be good, but the unpredictability left many Republicans unsure as to where he was leading us. It's possible this weakness would be less of a problem in the executive branch than the legislative -- after all, John F. Kennedy was reputed to have had a similar type of mind and he was a much better president than legislator. It's also possible that he has learned from his past mistakes -- there has certainly been no shortage of media analysis of them. All of this is to say that Gingrich would make a fascinating presidential candidate, unlike anything the 2008 race (or any other election year) has yet seen. I'm not sure I'd support his candidacy in the end, but I am sure it'd be a helluva thing to watch.

And Justice for All - and now the Rest of the Story

Some of the final details of the Duke lacrosse team story following the North Carolina State Bar decision over the weekend to disbar District Attorney Mike Nifong are reported by the Associated Press as follows:

My source: http://news.yahoo.com/s/ap/20070619/ap_on_re_us/duke_lacrosse&printer=1;_ylt=AsVRu92UUi9.G37nnl3SKFtH2ocA
Judge: Disbarred D.A. must leave now

By AARON BEARD, Associated Press Writer 6 minutes ago

Duke University has reached an undisclosed financial settlement with three former lacrosse players falsely accused of rape, while a judge said late Monday he would order the disbarred prosecutor to leave office immediately.

Duke had suspended Reade Seligmann, Collin Finnerty and Dave Evans after they were charged last year with raping a stripper at an off-campus party. The university also canceled the team's season and forced their coach to resign.

"We welcomed their exoneration and deeply regret the difficult year they and their families have had to endure," the school said Monday in a statement. "These young men and their families have been the subject of intense scrutiny that has taken a heavy toll."

The allegations were debunked in April by state prosecutors, who said the players were the innocent victims of a "tragic rush to accuse" by Durham County District Attorney Mike Nifong. He was disbarred Saturday for breaking more than two dozen rules of professional conduct in his handling of the case.

The players' families racked up millions of dollars of legal bills in their defense, and appear likely to file a lawsuit against Nifong.

The players said in a joint statement that they hoped the agreement would "begin to bring the Duke family back together again."

"The events of the last year tore the Duke community apart, and forcibly separated us from the university we love," they said. "We were the victims of a rogue prosecutor concerned only with winning an election, and others determined to railroad three Duke lacrosse players and to diminish the reputation of Duke University."

Earlier Monday, Nifong said he planned to leave office next month in a resignation letter to Gov. Mike Easley and to Superior Court Judge Orlando Hudson, who is overseeing a pending request to remove Nifong from office.

"It is my fervent hope that this action will spare this community the further anguish a removal hearing would entail and will allow the healing process to move forward," Nifong wrote.

But Nifong's July 13 departure date wasn't soon enough for Hudson, who decided late Monday to suspend Nifong from office.

As part of the suspension, Hudson said he would order the sheriff on Tuesday to prevent Nifong from carrying out any duties of the district attorney.

"I have thought about the situation, and this is the way I wish to proceed," said Hudson, who initially agreed to allow Nifong work until next month.

A disciplinary committee of the North Carolina State Bar concluded Saturday that Nifong had lied to the court, made inflammatory statements about the three indicted players and their teammates, and withheld critical DNA evidence from defense attorneys. After some administrative steps, Nifong will have 30 days to turn in his law license.

Dick Ellis, a spokesman for the state Administrative Office of the Courts, said Nifong will still be eligible for his full retirement benefits — a pension and health care — that he accrued while working a state employee for nearly 30 years. But because he served fewer than five years as district attorney, he is not vested in a more lucrative retirement system for judges, prosecutors and the director of the courts office.

There was no word on whom Easley will chose to replace Nifong, who was appointed in 2005. The governor said Monday he would immediately remove Nifong — who has worked in the district attorney's office since 1978 — if he could.

"You are given a lot of power and you can destroy a reputation in moments with just a few words," said Easley, a former prosecutor. "This was much more than a mistake."

 

Good News for a Change

Just a note to acknowledge that Paul Potts, the unlikely opera singer from Wales, whose audition video I featured recently, has won the “Britains got Talent” competition.  Videos from semi-finals and final are available on you-tube.com.  Not likely to see Paul return to his day job at the cell-phone warehouse.  Well done.

And Justice for All - eventually

I continue to be sensitive to topics concerning the law and the role of lawyers and courts in our lives. There is no more important position in the legal system than the chief public prosecutor in a jurisdiction. For purposes of accountability, this position in the local area is typically an elected post in our system of justice. The District Attorney, as he is called in North Carolina, has unfettered discretion in his charging decisions and his policies and actions can have a dramatic impact on the communities they serve and on individuals who come into contact with the Criminal Justice System.

As we all have heard by now, in March of 2006, a paid exotic dancer/stripper who was engaged to appear at a college frat house party alleged that she had been sexually assaulted and forcibly raped by several college aged males attending the party. The victim happened to be black while the alleged assailants happened to be white. The alleged perpetrators were students of Duke University and members of the school’s lacrosse athletic team.

To their credit, the authorities took the allegations seriously and proceeded on the assumption that a crime had been committed and that the complaining witness was, in fact, the victim. That is last time I will use the word credit and local authorities in the same sentence for the duration of this article. The ensuing investigation apparently lost sight of inconsistent and conflicting statements made by the alleged victim, substantial conflicting statements made by other attendees at the party, total lack of collaberating evidence and the existence of alibi and exculpatory evidence favoring the eventual accused. Photo lineups were biased and improper and DNA evidence was totally in conflict with the claims of the complaining witness.

District Attorney Mike Nifong obtained indictments from a grand jury and the lives of three Duke students were publicly and permanently shredded by the criminal justice system. The grand jury process is not particularly useful. While intended to act as a check on the power of the prosecutor, in reality there is no limitation imposed. The prosecutor presents his case with no adversary representation in the room. There is no defense attorney or presentation of any opposing theory of the case. The old line is that a New York DA could get a grand jury to indict a ham sandwich. It later appears in the Duke lacrosse team case that the prosecutor acted more as a politician than an officer of the Court and was later accused of pandering to Black voters just before an election. Nifong has made inappropriate and inflammatory public comments about the case, refused to even consider evidence or contrary theories of the case for further investigation and had even concealed exculpatory scientific evidence from the public and the defense lawyers in violation of discovery rules and all concepts of fundamental fairness.

Private colleges and universities in this country tend to be elitist organizations – and Duke is one of the most elite. The defendants were children of priviledge – but that is not a crime in most jurisdictions. But the climate on that university campus became the real crime in this story. The Duke administrators condemned the students and the lacrosse team, cancelling games and publicly throwing these students under the proverbial bus. 88 Duke faculty members (I hesitate to use the term teachers or professors) took out a public newspaper ad condeming the actions of the accused students and praising the protestors and hate mongers who had swarmed over the campus for taking action without waiting for the slow wheels of justice to produce a verdict – in effect an endorsement and a call for vigilante actions. Very disturbing response from the faculty of a major university. (I do note that 88 persons is a small percentage of more than 4,000 faculty at Duke)

Defense attorneys who made efforts to communicate to DA Nifong the results of their investigations in an effort to get him to take an objective look at the case and perhaps request additional investigation of facts presented describe an adult elected official sitting in a professional meeting with his fingers inserted into his ears repeating “I can’t hear you”. This would be viewed as unacceptable childlike conduct in the third grade – in the office of the Public Prosecutor it is ludicrous and outrageous.

When the stench became unbearable from the prosecutors office the State Attorney General finally stepped in, investigated and in an unprecedented public news conference in April of this year not only dropped all charges against the students but publicly declared them to be innocent – a remarkable statement. When a jury acquits an accused person, they are found to be not guilty – meaning not proven guilty. The system does not normally determine that someone was innocent. So the Attorney General’s statement is exceptional. Finally, this week, the North Carolina State Bar Association formally found DA Nifong guilty of a series of ethical violations and disbarred him from the practice of law.

The attached article will fill in some of the details. And the saga continues in that Nifong will likely face further proceedings in civil and possibly criminal courts. There will be civil suits against Nifong and the State that he represented as an officer of the Court. I hope civil actions may be brought against Duke University. But where is the punishment for the 88 faculty members or the assistant District Attorneys who worked on the case and were accomplices to Nifong’s actions or the law enforcement agencies who compounded a shoddy investigation with an apparent refusal to go back and do it over as new evidence was developed by the defense team or isolated members of the press.

This was an abuse of power - and where were the checks and balances that are supposed to protect the citizens from their government. These students were from wealthy families with resources to pay for a strong legal defense team and to eventually penetrate the public conscience concerning the atrocity that was being perpetrated in the name of the State of North Carolina. But what happens to the disadvantaged citizens who come in contact with the system and are victimized by incompetence, if not intentional bad faith. What happens to the citizen who can’t afford to fight back. And what will you do if you or a member of your family are unjustly the victim of justice. It doesn’t happen here as often as it happens in other countries with different systems of government – but it happens here and can happen to all of us if we allow it to happen to any one of us.

My source: http://www.townhall.com/columnists/LaShawnBarber/2007/06/18/nifong%e2%80%99s_swan_song Nifong’s Swan Song By La Shawn Barber Monday, June 18, 2007

Last year, an obscure prosecutor from North Carolina made a decision that would turn him into a national pariah and end his 28-year legal career. Black stripper Crystal Gail Mangum claimed that in the early morning hours of March 14, 2006, she was raped by white Duke University lacrosse players at a house party. She told conflicting accounts of the gang rape. In April 2006, Durham County District Attorney Mike Nifong presented evidence to a grand jury, seeking and obtaining indictments for first degree forcible rape, sexual offense, and kidnapping against lacrosse players Reade Seligmann and Collin Finnerty. Several days before the indictments, defense attorneys revealed there was no DNA match between Mangum and the 46 players tested. A month later, lacrosse team captain David Evans was indicted on the same charges. On December 22, Nifong dropped the first degree forcible rape charges after Mangum said she couldn’t remember whether she’d been raped. In January 2007, North Carolina Attorney General Roy Cooper took over the case. Citing lack of evidence and inconsistent witness statements, he dropped all charges against Seligmann, Finnerty, and Evans on April 11, declaring the men “innocent and Nifong a “rogue” prosecutor. Last Friday, a disgraced, disgraceful, and under-repentant Nifong sat before his North Carolina State Bar colleagues and the men he virtually held hostage for a year, tearfully offering a tepid, lawyer-like apology for his transgressions: “To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.” He announced his resignation as district attorney: “My community has suffered enough… It has become apparent, during the course of this week, in some ways that it might not have been before, that my presence as the district attorney in Durham is not furthering the cause of justice.” Neither his apology nor his intent to resign were enough to overcome his egregious ethics violations. On Saturday, June 16, Nifong’s colleagues found him guilty of lying to a judge, withholding evidence from the defense, and making inflammatory statements to the media about the case. And they disbarred him. The decision is almost anti-climactic for those who saw through Nifong from the start. I got wind of the case a couple of weeks after Mangum accused the men. My initial impression turned out to be accurate – a stripper with a criminal record, a history of mental problems, and fantasies of gang rape told a Tawana Brawley-style whopper to save her own skin. But most of the blame falls squarely on Nifong’s head. Appointed to the position in 2005, Nifong ran for district attorney in 2006. He plowed ahead with a stunningly weak case, fanning the flames of race and class tension in the heavily black city. Overwhelmed and perhaps flattered by the media attention, he was unable or unwilling to objectively assess his case, his main witness, or his future as a lawyer. Nifong used the case to campaign for office, exuding an aura of class envy, smarminess, and vindictiveness in the process. During his testimony before the disciplinary panel, Nifong contradicted himself many times and conceded violating the Rules of Professional Conduct. Incredibly, he admitted that he hadn’t read police reports. More incredibly still, Nifong maintains that “something” happened that night between the stripper and the players, that he “tried to do the right thing,” and that he never withheld anything from the defense or misrepresented evidence. Knowing his disbarment was imminent, Nifong should have reserved some level of dignity by skipping the Bill Clinton-like obfuscations and accepting full responsibility for his actions. But to the very end, he remained self-absorbed.