Quotulatiousness

October 15, 2011

The secret way Supreme Court justices are appointed

Filed under: Cancon, Law — Tags: , , , — Nicholas @ 12:07

Christie Blatchford isn’t a fan of the secret and convoluted way that our Supreme Court is staffed:

According to the latest serious rumour, Prime Minister Stephen Harper and Justice Minister Rob Nicholson are poised to make two appointments to the Supreme Court of Canada.

The two will be chosen from a secret short list of six names produced by an all-party selection committee which whittled down a bigger secret list (given to them by the Justice Minister after his officials mysteriously came up with what is believed to have been 12 names) and only after consultation with unnamed officials from provincial law societies and law schools and unnamed senior judges.

[. . .]

The lack of openness is a particular concern with the Supreme Court, which, as has been evident recently, and even in its current ostensibly non-activist form, is plenty activist about telling government when it is wrong.

I refer of course to the Insite decision, which effectively told the federal government, particularly the former health minister Tony Clement, that its policy against this particular supervised injection site was arbitrary, ill-conceived and violated drug users’ rights to “life, liberty and security of the person” as defined by the Charter of Rights.

As it happens, in the end I reluctantly concurred with the result (that Insite stays open), but there’s no getting away from the bottom line that a group of unelected judges over-ruled the elected government and effectively legislated policy, albeit in a specific case.

[. . .]

Canadians are comforted by the fact ours isn’t like the American system, where presidential appointments to the Supreme Court have to be confirmed by the U.S. Senate (such an unseemly business, such a circus) and where, o! the horror, some lower-court judges actually run for office.

How is it better to have kings emerge from a secretive inside-baseball process, for all we know involving a witches’ chants and eye of newt, than to vote for them?

September 3, 2011

QotD: The American judicial system

Filed under: Law, Liberty, Media, Quotations — Tags: , , , — Nicholas @ 11:26

Whatever one thinks about Conrad Black’s guilt or innocence, there is no doubt that he has proven his claim that America’s legal deck is stacked in prosecutors’ favour: Even before his conviction, he had to endure a genuinely Kafkaesque ordeal of assets being frozen and seized by the FBI, email and phone lines hacked, backroom deals with sleazy witnesses (David Radler, please call your office), and outrageous leveraging of blunderbuss statutes to generate dozens of charges on the basis of tangential procedural indiscretions. The very institution meant to protect innocent people from this machinery of state — the private legal sector — is an old-boys’ club whose members often seem just as concerned with seven-figure paydays as with keeping clients out of jail. The fact that Mr. Black happens to be a famous person makes the claims more credible because, as the author writes, if all this could happen to Conrad Black, it “could happen to anyone, and often does.”

Jonathan Kay, “Conrad Black and his new book: A man in full pay-back mode”, National Post, 2011-09-03

August 24, 2011

The origins of the “perp walk”

Filed under: Law, Media, USA — Tags: , , , , — Nicholas @ 12:03

Tim Black outlines the Dominique Strauss-Kahn media drama, and explains the origin of the “perp walk”:

The whole tawdry affair looks to be petering out to a rather murky conclusion. Still, whatever else DSK might or might not have done, he has undoubtedly performed one vital function. That of the scapegoat. Historically, scapegoating referred to the ritual of investing an animal, a goat say, with the sins of the village, and then casting the burdened animal out. DSK, so-called, seems to have served a similar function. Strauss-Kahn was to be symbolically sent out of the community, taking the sins of men, especially French political ones, with him.

Nowhere was this strangely modern ritual more apparent than in the so-called perp walk. Introduced by FBI director Edgar Hoover in the 1920s to bolster public support for prosecutions, and used most famously with mobsters Alvin Karpis and Harry Campbell, it involves tipping off the press that the accused is about to be moved from one location to another. So as the ‘perp’ is walking between, for example, the jail and the police station, photographers appear to snap the accused in all their humiliation and shame. Yet although the perp walk has a long, ignoble, not to mention justice-thwarting history, it only really came into its own under then US attorney Rudolph Giuliani (a future mayor of New York) who, during the 1980s Wall Street-insider trading scandals, transformed it into a deliberately unceremonious ceremony. For example, in February 1987, handcuffed trader Richard Wigton was photographed weeping as he was marched from the trading floor of Kidder, Peabody & Co.

The purpose of the perp walk is worryingly clear. From the handcuffs to the embarrassment induced in the accused, we are encouraged to see the guilt before it has been proved. It is a spectacle designed to elicit condemnation — regardless of whether that condemnation is deserved or not. Strauss-Kahn’s perp walk was no exception. Snapped in all his handcuffed, unshaven and fallen-faced infamy as he was taken to a police station to be charged, the watching world was invited to see him as guilty, his sullen shame writ large in every defensive stride.

August 22, 2011

“They’re creating crimes to solve crimes so they can claim a victory in the war on terror”

Filed under: Law, USA — Tags: , , — Nicholas @ 16:51

The folks at Mother Jones have been conducting some investigative journalism on the FBI’s unique way of fighting terrorists:

Over the past year, Mother Jones and the Investigative Reporting Program at the University of California-Berkeley have examined prosecutions of 508 defendants in terrorism-related cases, as defined by the Department of Justice. Our investigation found:

  • Nearly half the prosecutions involved the use of informants, many of them incentivized by money (operatives can be paid as much as $100,000 per assignment) or the need to work off criminal or immigration violations. (For more on the details of those 508 cases, see our charts page and searchable database.)
  • Sting operations resulted in prosecutions against 158 defendants. Of that total, 49 defendants participated in plots led by an agent provocateur — an FBI operative instigating terrorist action.
  • With three exceptions, all of the high-profile domestic terror plots of the last decade were actually FBI stings. (The exceptions are Najibullah Zazi, who came close to bombing the New York City subway system in September 2009; Hesham Mohamed Hadayet, an Egyptian who opened fire on the El-Al ticket counter at the Los Angeles airport; and failed Times Square bomber Faisal Shahzad.)
  • In many sting cases, key encounters between the informant and the target were not recorded — making it hard for defendants claiming entrapment to prove their case.
  • Terrorism-related charges are so difficult to beat in court, even when the evidence is thin, that defendants often don’t risk a trial.

“The problem with the cases we’re talking about is that defendants would not have done anything if not kicked in the ass by government agents,” says Martin Stolar, a lawyer who represented a man caught in a 2004 sting involving New York’s Herald Square subway station. “They’re creating crimes to solve crimes so they can claim a victory in the war on terror.” In the FBI’s defense, supporters argue that the bureau will only pursue a case when the target clearly is willing to participate in violent action. “If you’re doing a sting right, you’re offering the target multiple chances to back out,” says Peter Ahearn, a retired FBI special agent who directed the Western New York Joint Terrorism Task Force and oversaw the investigation of the Lackawanna Six, an alleged terror cell near Buffalo, New York. “Real people don’t say, ‘Yeah, let’s go bomb that place.’ Real people call the cops.”

August 11, 2011

Everything you need to know about the typical UK looter

Filed under: Britain, Law — Tags: , , , — Nicholas @ 12:12

… is contained in this Guardian article about the “fast track justice” system being used to process the arrestees:

One of the people dealt with by the court overnight included a woman with 96 previous convictions for theft who pleaded guilty to stealing alcohol, cigarettes and mobile phone accessories.

Linda Boyd, 31, was one of a series of defendants who appeared before Manchester magistrates court, which sat late into the night on Wednesday.

The court heard that she was drunk and had found an orange bin liner filled with the stolen goods in Manchester city centre, and began dragging it away, intending to share it with friends.

Her case was adjourned until 16 August, when she will be sentenced at Manchester crown court. Boyd stalked from the glass-walled dock telling the district judge who presided over the magistrates court to “go away, shut up.”

Yes, you did read that right, “a woman with 96 previous convictions for theft” was one of the people arrested in the aftermath of a night of rioting. That was 96 convictions, not arrests or charges. That’s an example of the sort of people who were delighted to discover that the police weren’t cracking down on vandalism or looting, and decided to get in on the act.

August 1, 2011

QotD: Redefining guilt

Filed under: Law, Liberty, Media, Quotations — Tags: , , , — Nicholas @ 11:33

I’m aware that Obama, Napolitano, the Southern Poverty Law Center, and a host of organized collectivists have been working hard for a long time to defame and smear everything and everybody that once made this nation great. They want as many of its people as possible to believe that knowing the Constitution, or calling upon its provisions at need, is as good as a criminal act. I have been concerned that in television dramas from CSI, through NCIS, to Castle, whenever the accused demands to see a lawyer, it’s considered a confession of guilt.

L. Neil Smith, “Madison’s Ghost”, Libertarian Enterprise, 2011-07-31

July 24, 2011

Amartya Sen’s “no universal justice” notion

Filed under: Books, Government, Law, Liberty — Tags: , — Nicholas @ 13:11

Eric Falkenstein is reading Amartya Sen’s The Idea of Justice and pulls out this example from the book:

Take three kids and a flute. Anne says the flute should be given to her because she is the only one who knows how to play it. Bob says the flute should be handed to him as he is so poor he has no toys to play with. Carla says the flute is hers because she made it.

Sen argues that who gets the flute depends on your philosophy of justice. Bob, the poorest, will have the support of the economic egalitarian. The libertarian would opt for Carla. The utilitarian will argue for Anne because she will get the maximum pleasure, as she can actually play the instrument. Sen states there are no institutional arrangements that can help us resolve this dispute in a universally accepted just manner.

This supposedly shows that there is no single theory of justice, rather one should look at enhancing the redistribution of life-saving goods and removing ‘injustice’.

I haven’t read Sen’s book (and have no immediate intention to do so), so perhaps I’m getting the wrong notion from the example here, but let me rephrase it a tiny bit to clarify why the example didn’t work for me:

Clara makes a flute, which is then taken from her because it might be “awarded” to someone who knows how to play it, or to someone who has no toys. Clara might, under some notions of “justice” be given back the flute she made.

I don’t see this as an example of “justice” so much as a form of theft.

July 18, 2011

Moral outrage is a bad source of legislative impetus

Filed under: Law, Media, USA — Tags: , , — Nicholas @ 09:53

Steve Chapman attempts to explain why the multiple “Caylee’s Law” proposals in many state legislatures are uniformly bad ideas that will become bad laws:

It was once suggested, as a general rule of staying alive, never to fly on an airline named after a state or the owner. As a general rule of sound government, it’s also a good idea never to enact a law named after a person. Personalizing criminal law usually stems from fruitless outrage at a freakish event.

Plenty of legislators are ignoring that risk. Their proposals, all going by the name “Caylee’s Law,” are an understandable response to the acquittal of Casey Anthony of killing her 2-year-old daughter. Swearing when you stub your toe is also understandable, which doesn’t mean it will do your toe the slightest good.

[. . .]

Targeting parents who fail to report missing kids on a government-approved schedule will probably accomplish nothing useful. Conscientious adults with grounds for concern already call the cops. But the change would burden police with trivial cases that would soon resolve themselves.

Already kids are reported missing at the rate of more than half a million a year, usually because they run away or neglect to tell parents where they are. A 2002 Justice Department study noted that “all but a very small percentage are recovered fairly quickly.”

But a mother whose son has a habit of absconding and reappearing could go to prison for exercising sensible patience. A divorced dad whose ex-wife gets angry when he’s tardy returning the kids from a weekend outing could give new meaning to “custodial parent.”

July 13, 2011

A bit more on the Caledonia settlement

Filed under: Cancon, Government, Law, Media — Tags: , , , , , — Nicholas @ 11:58

The National Post looks at the shameful way the Ontario government has acted through the confrontation in Caledonia:

This week’s settlement of a class-action lawsuit fits right in with the government’s modus operandi. Four years after the suit was filed, Mr. McGuinty’s Liberals will pay a group of residents and business owners $20-million in recompense for the disruption that was caused when the Ontario Provincial Police elected to ignore the rampant violence and lawbreaking that accompanied the aboriginals’ illegal seizure of land. The money will be divided among about 800 claimants, according to a formula related to their proximity to the occupied territory and exposure to acts of violence. As usual, the province has done its best to gag any complaints by insisting that details of the agreement remain confidential.

The class-action suit specified four instances at the height of the dispute in which roads were closed, court injunctions were violated and a hydro-electric transformer was burned. But those were just a sampling of the many episodes in which police, acting under clear instruction, blatantly ignored the aboriginals’ contempt for the law. Families were terrorized, threatened, driven from their homes or forced to show aboriginal “passports” to gain access to their own neighbourhoods. It was like a scene from some balkanized tin-pot regime, in other words — local residents might be inclined to call it the Banana Republic of Ontario.

Donna Reid, a Caledonia resident who has been among the most critical of the government, dismissed the settlement as “hush money” by a Liberal administration that is facing re-election and wants the issue to go away. The amount received by most residents will do little to offset five years worth of disruption that has embittered relations and turned part of the town into a no-go area.

July 1, 2011

Canadian and US judicial differences

Filed under: Cancon, Law, Politics, USA — Tags: , , — Nicholas @ 11:49

Conrad Black, who is now very well-versed in the oddities of American court practices, contrasts them with their Canadian equivalents:

This brings me, most happily, to the subject of Canada Day, 2011. I regret to have to write that I have also discovered in this mundane Odyssey that Canada, too, has its share of obtuse judges. But it does not actively encourage pre-trial media lynchings; requires a plausible test before charges are laid and not just the mockery of the grand jury; has reasonably even and impartial procedural rules; the defence speaks last in trials; acquittals are not immediately reversible for sentencing purposes; few prosecutors revert to the private sector in Canada, and very few become politicians; and most judges are not, as they are in the United States, ex-prosecutors. And in Canada, the prison and prosecution industry is not a Frankenstein Monster that incarcerates 1% of all adults as in the United States (only about one-sixth of that, in Canada), or more African-Americans of university age than there are in university, as in the United States. And in Canada, the number of people with “a record,” (even if for impaired driving 10 years ago, or being disorderly at a fraternity party 30 years ago), is not 15% of the entire population, as it is in the United States (47 million people, none of whom is eligible, for that reason, to enter Canada, even on a family holiday to look at the Calgary Stampede).

Canada is not a prosecutocracy amok in a carceral state, and the United States, no matter how fervently tens of millions of Americans may stand, hand over heart, singing their splendid anthems on Monday, is. Above all other things, if I were in Canada this weekend, and a Canadian citizen, I would celebrate the country’s good fortune in having 33 million relatively well-adjusted people in a mighty treasure house of a country, a steadily more geopolitically enviable condition as the developing world, led by China, India, Indonesia, and Brazil, four of the five most populous countries, with 40% of the world’s population, consistently put up six to 10% annual economic growth rates, and buy Canada’s resources. Canadians can also celebrate their good fortune that there was never an economic justification for slavery in Canada; that its only close neighbour has not been militarily aggressive, and that it has the official languages of two of the world’s very greatest cultures.

June 28, 2011

QotD: Combining stupidity, smugness, and the illusion of legal process

Filed under: Africa, Bureaucracy, Law, Military, Quotations — Tags: , , — Nicholas @ 12:13

Brendan Behan once said there is no situation so bad that it cannot be made worse by the arrival of a policeman. Well today there is no war so bloody that it cannot be made bloodier still by the intervention of the ICC. From the luxurious environs of The Hague, cheered on by liberals who get a cheap political thrill from seeing white lawyers stand up to evil Africans, the ICC has today issued an arrest warrant for Colonel Gaddafi, one of his sons and his security chief. This act of international moral posturing, designed to make the ICC look serious and superior, is likely to intensify the stand-off in Libya.

On one level, the issuing of the arrest warrant just seems barmy. These ICC bigwigs seem so removed from the real and messy world of politics and warfare that they seriously imagine it is possible to bring a war to an end by press-releasing a piece of paper saying: “Wanted for crimes against humanity: Muammar Gaddafi.” They seem to have confused the war in Libya with a nightclub brawl in Camberwell, imagining it is possible to resolve the whole miserable shebang by demanding the arrest of a few of the ringleaders. Once upon a time only spotty sixth-formers in turgid classroom discussions about conflict resolution would say things like “Hey, let’s just arrest the evil dude!” Now such political naiveté has been institutionalised in the ICC.

Yet on another level, the ICC’s game of cops and robbers, cowboys and Indians, the Enlightened West against the Dark Continent, can have unpredictable, potentially dangerous repercussions. If earlier instances of ICC interference into African conflicts are anything to by, the impact of the lawyerly intervention into Libya is likely to be twofold. Firstly it will further entrench Gaddafi and his forces, convincing them that it would be better go down with all guns blazing than to end up in The Hague alongside Karadzic and various other hated evil figures. And secondly it will remove the political initiative from the rebel forces in the east of the country, sending them the ultimately debilitating message that they would be better off waiting for outside forces to come and rescue them — in this instance, white, wig-wearing moral crusaders from the ICC — than to realise for themselves the liberation of their country.

Brendan O’Neill, “There is no war so bad that it cannot be made worse by the intervention of the ICC “, The Telegraph, 2011-06-28

June 20, 2011

Radley Balko dispels a few myths about the justice system

Filed under: Law, Liberty, USA — Tags: , , — Nicholas @ 12:50

In his new column at the Huffington Post, Radley Balko discusses some common myths in US criminal justice:

Myth 1: You Can’t Be Tried More Than Once For The Same Crime

The Fifth Amendment to the U.S. Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This protection against “double jeopardy” is intended to prevent the government from retrying the same defendant over and over until prosecutors can get a conviction.

But there are some exceptions. First, the protection only comes into play once a jury has convicted or acquitted a defendant. So in trials that end with a hung jury or a mistrial, the prosecution can usually bring the same charges again. One particularly egregious example is Curtis Flowers of Mississippi, who has been tried an incredible six times for the murder of four people in 1996.

Second, the U.S. Supreme Court has ruled that the government can charge a defendant with both a crime and the conspiracy to commit that crime without violating the constitutional prohibition on double jeopardy. This gives the government two opportunities to convict for is essentially the same offense. Conspiracy is often easier to prove than the underlying crime. It also gives prosecutors a way to rope in alleged offenses they can no longer charge separately due to statutes of limitations.

Finally, there is the “separate sovereigns” exception to double jeopardy. This allows a defendant to be tried, convicted and sentenced for the same crime in both state and federal court. The most well-known example of the separate sovereigns exception is when the Los Angeles police officers who beat Rodney King were acquitted in state court, then convicted in federal court of violating King’s civil rights.

June 18, 2011

Is it right to name and shame the Vancouver “fans”?

Filed under: Cancon, Law, Liberty, Technology — Tags: , , , , — Nicholas @ 00:08

Ken at Popehat discusses the charges that outing the misbehaving fans on Facebook is somehow “vigilantism”:

Vigilantism: Exposing people to the social consequences of their misbehavior is not vigilantism. Subjecting them to physical danger is. That’s why decent people involved in this process don’t post home addresses or phone numbers, and delete them when they are posted.

Proportionality: The proportionality argument is at least somewhat misguided. First of all, bad behavior doesn’t go viral on the internet unless it’s really notable. Garden-variety assholes don’t get top Google ranking. You’ve got to be somewhat epic to draw this modern infamy — by, say, being a water polo star on a scholarship trying to torch a cop car because your hockey team lost. Second, lack of proportionality is self-correcting. If conduct is actually just not that bad, then future readers who Google a bad actor’s name will review the evidence and say “meh, that’s not so bad. Everyone acts up now and then.” Saying that bad behavior should not be easily accessible on the internet is an appeal for enforced ignorance, a request for a news blackout. It’s saying, in effect, I’m more wise and measured than all the future people who might read about this; they can’t be trusted to evaluate this person’s actions in the right light, like I can.

“They Just Made A Mistake”: The argument that bad actors shouldn’t become infamous because they “just made a mistake” is a riff on proportionality. The same criticisms apply: it takes a hell of a mistake to go viral, and future viewers can make up their own minds. Plus, this argument is often sheer bullshit. Trying to torch a cop car because your hockey team lost is not a mere faux pas; normal and decent people don’t do it.

May 26, 2011

There is no right to privacy, unless you’re a police officer

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 09:24

Jon sent me a link to this post at Reason.com, discussing the odd court decisions which seem to indicate that you have no right to privacy, but that the police do:

Such incidents have led to a national conversation about the propriety of videotaping cops, even as dashboard cameras have become standard in squad cars. There seems to be some tension in the assumption that, as Graber’s lawyer put it, “the officer has a privacy expectation, but the motorist doesn’t.”

That asymmetry has been underscored by recent rulings over global positioning systems. Last year the Virginia Court of Appeals said Fairfax County police did not violate a suspect’s right to privacy when, without a warrant, they surreptitiously put a GPS device on his vehicle to track his movements. Individuals have no expectation of privacy on the public streets, the court ruled — a position also taken by the Ninth Circuit in California.

Yet this past January, Kathy Byron, a member of Virginia’s House of Delegates, introduced legislation that would have forbidden the use of GPS tracking devices for the purpose of following political candidates. People running for public office “are still entitled to some privacy,” she argued.

Even more disturbing is the steady increase in what the police are allowed to do without a warrant or even suspicion of criminal activity:

U.S. border-patrol agents often search the phones and computers of American citizens who cross the border — routinely “accessing email accounts, examining photographs and looking through personal calendars,” according to The Constitution Project, a watchdog group. “In some cases, electronic devices were confiscated for as long as a year.” And in Michigan, the State Police have high-tech forensic devices enabling them to download information from the cell phones of stopped motorists — something they have been doing without a warrant.

[. . .]

Soon Americans might have no right to expect privacy even in the privacy of their own homes. Earlier this month the U.S. Supreme Court ruled 8-1 that police officers may force their way into your domicile without your consent, without a warrant, and without what are usually referred to as “exigent circumstances” — e.g., someone inside the home yelling for help. The case, Kentucky v. King, concerned an incident in which police officers chasing a drug suspect ran into an apartment building, smelled marijuana, heard noises they thought might indicate someone was destroying evidence — and broke down the wrong door. This, said the Supremes, was perfectly fine.

May 22, 2011

The Tory “omnibus crime legislation” overview

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 12:06

Kathryn Blaze Carlson looks at the likely form of the new federal government’s “tough on crime” omnibus bill:

The Conservative government’s omnibus crime legislation, due ‘‘within 100 days,’’ will mark a watershed moment in Canadian legal history, imposing many controversial changes to how police and the courts operate, experts say.

The bill is sweeping in scale and scope: It is expected to usher new mandatory minimum sentences for drug crimes — growing five marijuana plants to sell the drug would automatically bring six months in jail — and for certain sexual offences against children. It will expand police powers online without court orders, reintroduce controversial aspects of the Anti-Terrorism Act that expired in 2007, end house arrest for serious crimes, and impact young offenders and their privacy.

“This bundle of crime legislation represents the most comprehensive agenda for crime reform since the Criminal Code was introduced,” said Steven Skurka, a Toronto-based criminal defence lawyer.

As always, when the government bundles together a lot of bills, there are some good and some bad ideas all headed down the chute at the same time. An especially bad bit is the preventative arrest provision that expired with the original Anti-Terrorism Act, and another one is the one allowing the police to demand internet records from ISPs without a court order (or, one assumes, notice to the people whose internet records are of interest to the police).

« Newer Posts — Older Posts »

Powered by WordPress