Quotulatiousness

January 5, 2012

Double-jeopardy falls to political correctness

Filed under: Britain, History, Law, Liberty — Tags: , , , — Nicholas @ 10:14

Brendan O’Neill on the terrible precedent of a recent British government decision and it’s most recent mis-use:

On Nick Ferrari’s breakfast show on London’s LBC radio this morning, I argued that all the people describing this case as a victory for justice are overlooking the fact that it is a victory built upon the wreckage of some pretty important legal principles. One longstanding legal protection in particular — the double jeopardy rule, the idea that no one should be tried twice for the same crime — had to be dismantled in order to get Dobson back in the dock. Having been acquitted of the murder of Lawrence in 1996, Dobson was what we used to call ‘autrefois acquit‘, previously acquitted, which in the past would have meant that he could not have been tried for the murder a second time. That all changed in 2003, when New Labour ditched the double-jeopardy rule.

[. . .]

Double jeopardy is the elephant in the room of the Dobson and Norris conviction. Sure, journalists are mentioning it, usually in fluffy factboxes titled ‘How this case came to court’, but no one wants to discuss it in detail. No one wants to discuss the extraordinary amount of history and progressive tradition that had to be consigned to the dustbin of ‘bad ideas’ in order to secure one conviction against two nasty blokes.

The double-jeopardy rule had existed in some form or other for centuries. There was a Roman maxim which said ‘nemo bis in idem debet vexari‘ — no man shall be punished twice for the same. It’s there in early Christianity, too, in St Jerome’s insistence in the fourth century that ‘there shall not rise up a double affliction’. It’s also in the sixth-century Digest of Justinian, the seed of much of modern jurisprudence, which insisted that, ‘The governor should not permit the same person to be accused of a crime of which he has been acquitted’. An academic study of the double jeopardy rule in history points out that it is one of the ‘few legal rights recognised by the Christian fathers throughout the Dark and Middle Ages’.

In twelfth-century England, a form of double jeopardy was codified in the Constitutions of Clarendon, which, in an attempt to rein in the authoritarian instincts of Henry II, stipulated that no man could be tried for the same offence in both the ecclesiastical courts and the king’s courts. It had to be one or the other. From England it spread to the US, where the eighteenth-century revolutionaries and their successors made a bar against double jeopardy a key plank of their new republic’s constitutional guarantee of liberty against state power. In each historic period, the purpose of the rule against ‘double afflictions’ was strikingly similar: to protect individuals from potentially being hounded and interminably retried by governors, crown forces or cops determined to stick them in jail. That’s because being permanently at risk of prosecution is itself a kind of life sentence.

December 26, 2011

Montana voters angry over “indefinite detention” vote, seek to recall their senators

Filed under: Government, Liberty, USA — Tags: , , , , , — Nicholas @ 11:42

Jonathan Turley has the details:

We have been discussing the disconnect between citizens who have repeatedly opposed continued rollbacks of civil liberties and the Democratic and Republican leadership pushing for such rollbacks, including the recent provision allowing indefinite detention of citizens under the National Defense Authorization Act of 2011 (NDAA). Now Montana citizens have decided to try another approach given the non-responsive attitude of our leaders — they are moving to remove their two Senators from office over their votes in favor of indefinite detention powers.

Montana is one of nine states with recall laws. The other states are Arizona, Colorado, Louisiana, Michigan, Nevada, North Dakota, Oregon, and Wisconsin. Eighteen states have recall laws, but most do not apply to federal officers.

H/T to Radley Balko for the link.

December 23, 2011

What is justice?

Filed under: Government, Law, Liberty, USA — Tags: , , — Nicholas @ 12:19

We may not be able to fully answer that question, but I think Scott Greenfield has a good case for what isn’t justice:

Whenever a motion is made for a bill of particulars in the Southern District of New York, the government’s response is the same: It would unduly prejudice the government to be required to disclose allegations of fact that would enable the defendant to know the specific conduct that forms the basis of the charge against him. And the court agrees.

You know, telling the defense what exactly it says the defendant did that was criminal would indeed prejudice the government. It would give the defense half a chance to prepare its defense. Well, maybe only a third of a chance, but at least a chance. Level the playing field, if only a bit? Prejudice.

But when it comes to prosecuting “enemy combatants,” the ante is upped. Way upped. Not only is the risk of individual failure at stake, but the reputation of a government that’s come to depend on a population who believes, with their every breath, that it can be trusted to ignore every safeguard around which are concept of a legal system is based, and still be fair. The integrity of the outcome must be trusted, and yet the conviction of those denied their rights must be assured.

What to do? It’s not enough to deny the defense access to the evidence against the defendant. No, not the puny refusal to provide a bill of particulars, but wholesale denial of “state secrets.” Still, a criminal defense lawyer gets used to thinking fast, working on the fly. We don’t enjoy the luxury of depositions, document demands, the absolute necessities of civil practice where lawyers whine about not being allowed to use a proctoscope at least five years in advance of trial. We prepare for surprises because we have no choice. We deal with the unknowns, because that’s our job.

Bad enough? Nope, read the rest of the post to find out just what little similarity to actual justice is in operation for those accused of being “enemy combatants”.

December 6, 2011

Forbes: The NDAA is the “Greatest Threat to Civil Liberties”

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas @ 00:40

E.D. Kain makes the case for President Obama to veto the National Defence Authorization Act:

If Obama does one thing for the remainder of his presidency let it be a veto of the National Defense Authorization Act — a law being debated in the Senate currently which would place domestic terror investigations and interrogations into the hands of the military and which would open the door for trial-free, indefinite detention of anyone, including American citizens, so long as the government calls them terrorists.

So much for innocent until proven guilty. So much for limited government. What Americans are now facing is quite literally the end of the line. We will either uphold the freedoms baked into our Constitutional Republic, or we will scrap the entire project in the name of security as we wage, endlessly, this futile, costly, and ultimately self-defeating War on Terror.

In short, if the government says you’re a terrorist, it has the right to detain you in military prisons for as long as it likes: you have no rights as a designated “terrorist”. So much for habeas corpus.

November 4, 2011

The Kangaroo Family Court

Filed under: Law, USA — Tags: , , , , — Nicholas @ 11:15

The headline says it all: “Sexual Assault Victim Must Pay Her Attacker Spousal Support”

A San Diego judge ordered Crystal Harris to pay $1,000 a month in spousal support to her ex-husband — just as soon as he finishes up his six year prison sentence for sexually assaulting her. As 10News reports, “The entire assault was caught on tape and what it captured was enough to convict Shawn Harris of a felony — forced oral copulation.”

So why is a victim being forced to pay her attacker? According to Judge Gregory Pollock, it’s because Crystal Harris brought home six figures worth of bacon while Shawn Harris was unemployed.

    “I can’t look at a 12-year marriage where one side is making $400 a month, the other side is making over $11,000 and say no spousal support,” Pollock said in court. “That would be an abuse of discretion.”

It sounds like a miscarriage of justice, but the law is written so that it only excludes attempted murderers from the right to receive spousal support. Another case of a bad law forcing a bad judgement (or a judge unwilling to exercise his discretion in a case that cries out for it).

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.

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