By Reynold N. Mason
I don’t know much about journalism or about the standards to which they are supposed to aspire. But I have come to expect facts from a news paper story and a modicum of neutrality. I prefer to decide things for myself. That is the reason the Time's coverage on the federal courts abortion decisions offends my sensibilities. I decry the lack of objectivity in the Times coverage, not because on my position on the issue but because I detect virulent opposition on the part of the Times on an issue that is hotly debated in the public forum.
Excerpts of the Times reporting I find offensive and condescending:
In three new rulings, federal judges in different states have acted to block immediate enforcement of measures that restrict abortion rights and…………….these rulings are important victories for women’s health and reproductive rights.
Commenting on the Indiana law partially blocked by the court the Times said:
The mean-spirited law is part of a Republican-led national campaign to end public financing for Planned Parenthood. The Obama administration promptly told Indiana, and other states weighing similar legislation, that the measure violated federal law by imposing impermissible restrictions on the freedom of Medicaid beneficiaries to choose health care providers.
And about the South Dakota law the NYT said:
In South Dakota issued a preliminary injunction blocking, on constitutional grounds, a deeply intrusive state law requiring women to wait at least 72 hours after an initial doctor’s visit before terminating a pregnancy.
These Rulings do not, however, address other threats to women’s health. Those include the slashing of state support for family-planning services by governors like Chris Christie of New Jersey, and attacks from Congress like the bill Republicans pushed through the House in May that would use the nation’s tax system as a weapon to end abortion insurance coverage in the private market. Still, these rulings serve as a reminder that courts have a vital role to play in blocking the extreme anti-abortion, anti-family-planning movement accelerating in the states and in Washington
Yet the paper ignored a decision on the same issue by the 9th Circuit Federal Court of Appeals issued on July 29, a few days after it reported with accolades on the other three. The 9th Circuit decision is more far reaching because it binds all federal courts within the circuit, which includes most of the states in the west, California, Montana, Nevada, Arizona, Alaska, Oregon, Washington and Idaho and has wider application than the other three decisions combined. The 9th circuit struck down a so called bubble law prohibiting abortion protesters from coming within 8 feet of an abortion clinic. No one was ever arrested for handing out pro-abortion flyers, but anti-abortion protesters were regularly carted away and charged under the law. This type of statue sheds all pretense of neutrality and is intensely pro-choice. The enforcement was transparently biased and designed to stifle opinions that were not in accord with the popular official position. The Oakland Ordinance is not the first attempt to muzzle anti-abortion protests by imposing restrictions on free speech. Last week a New York federal court struck down a city ordinance because it was aimed at discouraging anti-abortion speech. The law required anti abortion literature to say that the City encouraged consultation with other health providers like Planned Parenthood.
The Times owes its very existence the principle of free speech enshrined in our constitution. It should never put itself in the untenable position of advocating free speech only for those whose views it finds acceptable. It should not be an advocate for laws that have a disproportionate, adverse impact on viewpoints it opposes. If objectivity and neutrality are principles of journalism, the Times has run afoul of both in its reporting on the abortion decisions handed down last month.
It said about the New York decision:
In a setback for women facing a particularly vulnerable moment in their lives, a federal judge has temporarily barred New York City from enforcing a new law that would require so-called crisis pregnancy centers masquerading as licensed medical facilities to disclose basic facts about their services. These centers, run by abortion opponents, have sprung up in many places around the country. They typically draw clients with advertisements that appear to promise neutral abortion counseling. Staff members in medical attire collect information and perform pregnancy tests and sonograms and try to convince women not to have an abortion.
The Times characterizes the judges concerns about free speech as mistaken, even though the ordinance is clearly aimed at making the dissemination of anti abortion information more difficult. New York City has no ordinances that place any restrictions on Planned Parenthood or other groups that espouse the official position. Whatever the reason for the advocacy by the Times, its reputation is being eroded by the opinion-shaping bias of its coverage of this issue. No longer is seeking and reporting the news enough, crossing the line between reporting and advocacy seems to be the new unwritten journalistic credo at the Times.
By Reynold N. Mason JD
Two years ago, in July 2009, Diane Schuler got drunk on vodka and high on marijuana, then got into her minivan with her children and three of her nieces and headed home. She didn’t make it. Neither did her daughter and three of her nieces ages 5, 7 and 8, years old. They perished in a pile of mangled steel and broken glass on the New York Taconic Parkway when, in a drug induced stupor, Ms Schuler drove the wrong way into oncoming traffic for almost two miles before the inevitable happened. She ploughed into a minivan, killing its three passengers. Eight people died as a result of what was clearly an act of crass irresponsibility. The autopsy and toxicology tests found that there was undigested booze still is Mrs. Schuler’s stomach at the time she perished. And in the wreckage, the police found the remnants of a bottle of vodka. Now, Mr. Schuler, her husband, is suing New York State. His lawyer blames the accident on poor engineering and inadequate signage along the Taconic Parkway.
New Yorkers view this as being wrong and strong, as adding insult to injury. Even more egregious, Mr. Schuler is suing the father of his wife’s three nieces who died in the car she drove on the Taconic on that fateful day. His lawyer claims that the grieving father was vicariously liable. A legal fiction for deep pocket. This puts his insurance company on the hook because he owned the van Mrs. Schuler was driving at the time of this tragedy. Imagine forcing New York to spend $millions in lawyer’s fees and expert fees to have transportation engineers testify about the proper engineering standards for highway design and signage, when everyone with half a brain knows that this tragedy occurred because Mrs. Schuler was stoned out of her mind. This is a frivolous law suit; a crap shoot and a gamble. It is a transparent ploy to blame everyone but the responsible party and have someone else pay the piper. This kind of frivolous, groundless law suit has become a plague spreading through the American Justice system. It is time we stop it.
The litigation gamble
Last May, Texas took a step in the right direction. It enacted a law making the loser in a law suit responsible for the legal fees and cost of the winner if the suit is groundless. This common sense bit of legal self defense is long overdue. Much has been written about big corporations lavishing dollars on politicians who back tort reform. But that is a smoke screen. The truth of the matter is that many people see a law suit as lottery, a chance to get rich with very little investment, and zero risk. A lawsuit from a slip on a cracked sidewalk by a plaintiff with a claim of a resulting back injury could bring a homeowner to ruin. No injury is too minor. It costs a potential plaintiff nothing to sue his neighbor over a cracked sidewalk. Just find a lawyer who will take the case on a contingency basis and enter the litigation lottery.
Runaway juries and jackpot verdicts
Getting an expert to testify that the injury is serious and disabling is no problem. Many Personal injury lawyers work with experts, who will themselves wait to be paid until after the successful conclusion of the case. It has always me amazed the way two experts looking at the same X-ray can reach such vastly different conclusions. The truth depends on who is paying the experts, and the opinion necessary for that side to prevail. The rest is up to the trial smarts of the lawyer.
I once presided over a personal injury case in which the husband alleged that his wife died because of the negligence of the hospital. The evidence showed that she had a bad heart and had been treated for heart problems in the past. She had been to two other hospitals on the two days preceding her visit to the city hospital complaining of chest pains. She was given some fluids through an IV while she waited, but perished in the waiting area before she could be seen by a doctor. The hospital hired a world renowned pathologist who explained to the jury that the women’s heart was half destroyed by previous heart problems or disease; he pointed out the difference in the color of the heart tissue and left no doubt in my mind that the diseased heart was the cause of death, rather than anything that could be blamed on that hospital. The deceased was unemployed at the time, and her husband, the plaintiff, drove a “dollar cab”. The jury brought back a verdict of $35 million. They disregarded the evidence and were swayed by the wit and persuasive skills of an experienced lawyer.
Some pay up because they fear runaway juries who perceive insurance companies as deep pockets. There are lawyers who accept and file cases with no intention of ever taking them to trial. They know that if the case is against a large corporation or a big city it will be settled for $8 to $10 thousand nuisance value. Defendants who are insured are not willing to risk facing a jury with the possibility of major exposure, when they could resolve the case with a minimum of risk. Thousands of meritless cased are settled which would not survive a motion to dismiss. But that costs more than nuisance value. There is absolutely no risk for a plaintiff who brings a baseless law suit. But that is about to change. South Carolina, Pennsylvania, Florida Oklahoma, Alabama, all have elected governors who favor making losers pay.
We all pay
One study as far back as 1991, found that the U.S. spends five times as much as its major industrial competitors on litigation costs. The costs of litigation over the last two generation has increased fourteen fold; tort claims run ten times higher, and malpractice claims ten times higher than that of Britain which has a loser pay system. Frivolous law suits are not a topic of wide public interest such as health care or social security. And it is not a wedge issue like abortion or immigration reform. Yet according to a study by the Manhattan Institute it cost $247 billion in 2006. It is time we hold people responsible for the cost of their own groundless actions. A plaintiff who gambles and loses should be made to compensate the winning defendant for the costs of defending himself against a baseless law suit. And the attorney who accepts and files a frivolous law suit should be sanctioned as well. This law suit by Schuler is meritless on its face. There is no theory of law under which he can overcome the gross negligence of his wife for driving the wrong way on a highway while drunk. It does not take a lawyer to see that, except one that is blind to the contradictory facts staring him in the face. For the attorney who brings such a case and for his client as well loser pays is the remedy.
By Reynold N. Mason JD
At long last, the burning issue of marijuana has been placed on the front burner of American politics. The two brave lawmakers stirring the political pot are Representatives Ron Paul and Barney Frank. They have introduced HR 2306, a bill aimed at decriminalizing the distribution and sale of marijuana. No doubt the task of garnering the votes required to pass this bill is gargantuan, and at this juncture, nearly impossible. But it is a commonsense new approach to an old problem now approaching crisis proportions.
Growing opposition to punitive marijuana policies
Increasing numbers of people––physicians, lawyers, judges, police, journalists, scientists, public health officials, teachers, religious leaders, social workers, drug users and drug addicts––now openly criticize the more extreme, punitive, and criminalized forms of drug prohibition. These critics, from across the political spectrum, have pointed out that punitive drug policies are expensive, ineffective at reducing drug abuse, take scarce resources away from other public health and policing activities, and are often racially and ethnically discriminatory.
U.S. drug laws mandate long prison sentences for repeated possession, use, and small-scale distribution of Marijuana. The Rockefeller drug laws have, over the decades, criminalized even users of small amounts of Marijuana. Many U.S. drug laws explicitly remove sentencing discretion from judges and do not allow for probation or parole. In the 1980s, the Reagan and Bush administrations substantially increased criminal penalties for drug possession and launched an expensive "War on Drugs." There are nearly half a million men and women in prison for violating its drug laws. Most are poor people of color who are imprisoned for possessing an illicit drug or "intending" to sell small amounts of it. The mandatory federal penalty for possessing 5 grams of crack cocaine, for a first offense, is 5 years in prison with no parole.
The most glaring weakness and the greatest misuse of tax dollars is plethora of marijuana laws across the US. Cannabis grows wild throughout the world, and is commercially cultivated in remote areas, in backyard gardens, and in technologically sophisticated indoor growing operations. Just as it was impossible for prohibitionists to prevent alcohol from being produced and used in the U.S. in the 1920s, so too, it is now impossible to prevent cannabis from being produced and widely used by those who desire its perceived benefits. Overwhelmed law enforcement lack the resources to arrest young people for minor marijuana infractions. And this inability to enforce the law breeds disrespect for law among the young who come to think they can violate the law with impunity. As a result the enormous and unstoppable use and production of marijuana has created a crisis of legitimacy for law enforcement.
Politicians, policy makers, police officials, journalists, and ordinary tourists from many countries have seen that decriminalizing cannabis use and regulating cannabis sales have substantial advantages and benefits––especially when compared with the disadvantages and costs of punitive U.S. drug policies. Since the 1980’s, and particularly since the Rockefeller drug laws in New York, Americans have come to realize that the criminalization of marijuana is harsh, expensive and ineffective. There have been movements afoot to decriminalize and ultimately legitimize the use of small quantities of the drug over the years. But the opposition has been steadfast. Marijuana is still classified as a banned substance by the FDA. All indications are that this likely will remain the case. Chairman Lamar Smith of the House Judiciary Committee says he has no intention of bringing the proposed new law to the floor for discussion. But there are chinks appearing in the armor of the marijuana prohibition movement
Lessons from Prohibition
There is an irony is the Chairman’s position. The anti alcohol movement too had its most staunch backer and supporter in a man who, in the 1920’s, occupied the same chairmanship now held by Rep. Smith. His name was Andrew Volstead. He was the sponsor of the bill named for him that eventually led to prohibition… The Volstead Act. He, along with his supporters, devoted themselves to banning alcohol and convincing the American public that it was dangerous in any form; that alcohol destroyed the moral character and physical and mental health of those who imbibed. They regarded booze in any form as a menace in much the same way that proponents of criminalization of marijuana do today…an inherently dangerous substance, the use of which leads inexorably to abuse of harder drugs such as cocaine and other hallucinogens. Drug use is blamed for evils of all sorts, from unemployment to poverty and crime to violence. Reduce drug use they say, and you reduce and banish the scourge of many of our social ills. They view the ban on drugs as a panacea.
But those who support the ban on marijuana are following the script of their predecessors in the prohibition movement. If the history of the prohibition movement taught us anything, it is that that movement to ban and criminalize the use of marijuana is doomed. It will not lead to prosperity and, will not increase law and order. Marijuana laws are openly and notoriously violated today and Marijuana is readily available on the streets and on college campuses. Young people can purchase marijuana more readily than they can a six pack. Sellers of illegal drugs to not check ID.
Banning marijuana does not stop people from obtaining and using it. Where there is a demand there will always be a supplier. People in the marijuana trade are small scale entrepreneurs. Busting the drug cartels will not have a lasting effect and, would not reduce the supply for long. Marijuana production is not centralized; the weed is grown in little family plots and the small producers would just move in to fill the void created by the big busts. After repeal of prohibition people did not suddenly switch from beer to hard liquor. And there is no basis to believe that recreational uses of marijuana will switch to the use of cocaine or other hard drugs, if its sale and use is decriminalized.
Dollars and common sense
Marijuana is the most widely used illicit drug in the world. According to a UN study 162 million people use marijuana annually, for religious, recreational, medicinal or spiritual purposes. There is no scientific agreement about any long term ill effects of marijuana use. Fourteen states have legalized the medicinal and recreational use of marijuana and have de-criminalized possession of small amounts of the drug. This puts state laws in conflict with federal law. The FDA now finds itself in the odd position of conducting raids on marijuana dispensaries in Colorado and California that are perfectly legal under the laws of these states.
The states as well as the federal government expend billions on marijuana enforcement. In 2003 there were 755,000 marijuana arrests in the U.S. These numbers are increasing and with them the costs of enforcement are skyrocketing. In 1973 the FDA had 2800 employees and an annual budget of $65 million. In 2009 the budget had grown to $2.6 billion and the number of employees to 11,000. NORMAL (National Organization for Reform of Marijuana Laws) estimates that New York spent $3 billion, New Jersey and Ohio $1billion each, Texas California and Florida about $2 billion each to enforce marijuana laws. While billions are being spent, drug cartels are raking in 70 % of their profits from sales of marijuana in U.S. sales alone. One study put the cost at $ 10, 200 for every marijuana smoker arrested.
Wrong on all levels
The ban breeds, rather than prevents criminal activity. It encourages teenagers to become criminal entrepreneurs in the illegal drug trade. While arrests increase there is no corresponding decrease in marijuana use of its availability. The ban on marijuana is simply wrong on all levels. College students busted for smoking a joint are criminalized and marked for life. And it is no surprise that blacks suffer the slings of outrageous and biased enforcement more than any other group. Blacks make up 1.9 % of marijuana users but account for 23 % of the arrests. In places like South Dakota, the disparity is even more pronounced. Blacks and Indians are arrested at a 1:9 ratio as against whites. And one of every four arrests is of young people under the age of 18. The current policy does not produce the intended results. Yet the more it fails the more money we throw at the problem.
A way out
California NORML estimates that a legally regulated market for marijuana could yield the state at least $1.2 billion in tax revenues and reduced enforcement costs. A basic $50/ounce excise tax (roughly $1/joint) would yield about $770 - 900 million per year plus another $240-360 million in sales taxes. In addition, the state would save over $200 million in enforcement costs for arrests, prosecutions and prison. Additional benefits would accrue from increased employment and spinoff industries. Total retail sales of marijuana could be on the order of $3-$5 billion, with total economic impact of $12-$18 billion including spinoff industries such as coffeehouses, tourism, plus industrial hemp. http://www.canormal.org
The legalization of drug production and sales and the establishment of drug control along the lines of alcohol control is a reasonable and practical policy option. Therefore, it would mark a significant advance if the current U.S. debate on drug policy could be moved beyond the question of whether such a system of legalized drug control is possible. It Is. Colorado, California and fourteen of their sister states already have in place legalized and sensible systems of decriminalizing the distribution and use of limited quantities of marijuana. And governor Christie of New Jersey this week implemented a scheme to license a limited number of dispensaries where marijuana can be legally purchased. The New Jersey plan was shelved to make certain that it did not run afoul of federal law. The proposal by Ron Paul and Barney Frank provides an opportunity for rational and non- moralistic debate on a workable system of at least partially legalized marijuana production and sales.
In the years before constitutional prohibition in the United States, there had been little systematic control of the alcohol industry. In 1933 a sprawling illegal industry for producing and distributing alcoholic beverages was in place, composed of uncountable numbers of small independent distributors and producers, and some larger ones. These sold whatever they wanted to whomever they chose and paid no taxes. Alcohol control put an end to nearly all of the lawlessness. Liquor stores are licensed and the time place and manner of every aspect of their operation is tightly regulated. And because towns, cities, counties, states and countries vary enormously, liquor policies are shaped according to local environments. There are still cities in Georgia and a number of other states that are referred to as “dry” because no alcohol sales are permitted. Consumers who desire to purchase the product must purchase it out of town.
In a June 29 memorandum, the Justice Department said it was primarily concerned with large money-making operations that also supplied the black market. Indicating that states like New Jersey, Colorado and California will be free to proceed to decriminalize marijuana. Let’s hope the Feds follow suit, and soon. A good start would be to give serious consideration to HR 2306, now gathering dust on the table.
By Reynold N. Mason JD
Atlanta, July 12, 2011. For most of the past 15 years, he consistently made his child support payments, court records show. While he worked at AT&T as a service technician, for example, his $452 monthly child support payment was deducted from his paychecks. When he lost his job at AT&T last year, he used money from odd jobs and his tax refunds to try and keep up with his child support payments. But eventually the money ran out. With only 39 cents in the bank, Randy Miller, a destitute Georgia war veteran was jailed recently for failing to pay support for his 16-year-old daughter. . He tried to start a pressure-washing business, but it failed. His financial situation steadily worsened to the point where he could not make his mortgage payments or pay the utilities on his home. In October, Miller lost the house to foreclosure. On Nov. 11, Miller found a job with a company that pays employees to assemble furniture bought by customers of local department stores. But four days later, he was ordered to appear in court to face contempt charges for being behind in his child support.
Several states, including Florida, Georgia, New York and South Carolina have resurrected the debtor’s prison — having thousands of fathers jailed for failing to pay court ordered child support. The shortsighted plan threatens to run afoul of the U.S. Constitution, and it should be stopped. Debtor’s prison is a jail for those unable to pay their debts. Notorious for their inhumanity, they were abolished by most states in the United States in the 1800’s. But they are making a comeback, with a wink and a nod from the United States Supreme Court. Jail time for being broke is no way to help a down and out father get back on his feet. But that does not stop states and their collection arms---- Support Collection Units—from trying to get blood from stone. Fathers like Miller languish in jail without ever talking to an attorney. Until last month, several states were forced by court rulings to provide counsel for fathers facing jail for being poor. Last March the Southern Center for Human Rights filed a class action lawsuit on behalf of Miller and the 500 other fathers in jail in Georgia because they were unable to pay child support. That action has now been rendered moot by the Supreme Court decision in Turner v Rogers, handed down last month.
Michael Turner was drug-addicted, unemployed and had suffered a back injury that rendered him disabled. At the time of his hearing for failure to pay court ordered child support he had been jailed five times for falling behind on payments. After his release from jail for a previous contempt, the clerk of the court immediately served him a new motion for contempt, because by the time of his release he was more than $5000.00 in arrears. At his hearing Turner told the court: "I just got out [of jail] – I done a year ’07 to ’08, got out for like four months. I’ve tried to find a job. I, honest to God, have tried this time. There’s no work out there hardly for carpenters. I couldn’t find anything, so I was putting in applications in grocery stores, you name it. I’ve got in applications. I have tried. I’ve honestly tried this time. That’s all I can say. I can’t find any work ...."
“Well, when I first got out, I got back on dope. I done meth, smoked pot and everything else, and I paid a little bit here and there. And, when I finally did get to working, I broke my back, back in September. I filed for disability and SSI. And, I didn’t get straightened out off the dope until I broke my back and laid up for two months. And, now I’m off the dope and everything. I just hope that you give me a chance. I don’t know what else to say. I mean, I know I done wrong, and I should have been paying and helping her, and I’m sorry. I mean, dope had a hold to me.” The court made no express finding concerning Turner’s ability to pay his arrearage. Nor did the judge ask any follow up questions or otherwise address the ability-to-pay issue. With that the court held him in contempt and sent him back to prison.
Only fragmentary data are available on the national magnitude of imprisonment of fathers in Turner’s predicament. But the U.S. Census Bureau, in one study found that in 2007, state agencies collected $24.9 billion in child support payments, the great majority of it from fathers. The Center for Family and Policy Practice in a recent study found, that in Indiana alone over 3000 men are sent to prison each year because of their inability to meet child support payments. In South Carolina, where Turner met his faith, there are 1500 men in prison at any given time because they are unable to pay child support. Debtors’ prisons have been abolished but not for fathers like Turner and Randy Miller and over 50,000 other fathers jailed each year because they are down on their luck. For them, unfortunately, it just got worse.
The Supreme Court, turning back the progress made in some states, ruled that Turner was not entitled to an attorney at his contempt hearing even though he was facing loss of his liberty. In the United States is unconstutional to incarcerate a person solely for failing to pay a debt. But the courts and Support Collection agencies circumvent this, by claiming that fathers who cannot pay are being jailed for failure to comply with a court order. But jail, whether for violating a court order or because of inability to pay, is equally as bleak. Other people facing incarceration have the right to counsel at every critical stage of the process. And deprivation of counsel at any important stage of the criminal process, is an unconstitutional deprivation of the right to a fair trial that will lead to a reversal of the conviction. Defendant who wish to represent themselves must make a knowing and intelligent waiver, before they will be allowed to proceed. Even defendants in Traffic Court are advised of their right to counsel, their presumption of innocence, their right to cross examine witnesses and their right to trial by jury. Beyond that, their guilt must be shown by proof beyond a reasonable doubt. And once acquitted, a defendant can never again be tried for the same offence. But Turner was jailed six times for the same offence…poverty---inability to pay court ordered child support.
Given the importance of the interest at stake, it is obviously important to assure accurate decision making in respect to the key “ability to pay” question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt, reinforces the need for accuracy. However the Supreme Court ruled that there is no constitutional right to counsel for fathers facing jail for being too poor to pay. While the Turner court imposes a new set of safeguards to prevent wrongful incarceration, it nonetheless leaves indigent fathers exposed to abuse. Like Turner, a father can still face the conundrum of repeated arrests for the same debt if their unemployment continues. And all this comes after his wages have been garnished, his assets seized, his credit wrecked, his driver’s license suspended and his passport revoked.
The current state of the law does not reflect the realities of the marketplace or the economic realities of the men involved. Yes, being a poor father is a crime punishable by repeated imprisonment. It is high time this barbaric practice of jail for debt be put back where we once deposited it… on the trash heap of history.
By Reynold N Mason JD
John Thompson spent 18 years in prison, 14 of those on death row, for a crime he did not commit. His horrific nightmare began in December 1984 when prominent New Orleans businessman Raymond T. Liuzza, Jr. was killed outside his home. The Orleans Parish District Attorney’s office, then headed by Harry Connick Sr., was under considerable pressure to solve the crime and bring its perpetrator to justice. In the heat of the Liuzza investigation, Jay La Grade and his two siblings faced down an armed robber who also wanted their car. In the struggle, the robber was injured and he fled leaving his blood on one of the victim’s pants. The DA had the blood tested. Tthe lab found it to be type B. Thompson had type O blood.
Shortly after the attempted robbery Thompson and a co-defendant named Kevin Freeman were arrested for the Liuzza murder. La Grade’s father saw Thompson and Freeman’s photographs in the local newspaper and figured they were probably the individuals who had tried to rob his children. He contacted the DA’s office about his suspicions, which led to Thompson and Freeman being charged with armed robbery. The DA’s office removed the lab report from the court file and concealed it from Thompson’s attorney. Thompson was convicted and sentenced to 49 1/2 years for the armed robbery. Three weeks later he was put on trial for the Liuzza murder.
There was just one eyewitness to the shooting and he came forward only after the Liuzza’s offered a reward. He described the shooter as a 6 foot tall, African-American, with a close haircut. Thompson was 5ft. 8 and had an afro. Thompson’s co-defendant in the armed robbery, Kevin Freeman, was 6 feet tall and was known as Kodak because he kept his head shaved. He fit the eyewitness description in both height and hair style. He was the prosecution’s star witness. Thompson was convicted of murder and sentenced to death.
In 1999, after 18 years in prison and with his execution day approaching, one of Thompson’s attorneys discovered the lab report, the eye witness description of the shooter and a treasure trove of other hidden evidence, all exonerating Thompson. His guilty verdict was tossed out, but the DA retried him. The jury deliberated for 35 minutes and found him not guilty. He sued and won an award of $14 million, $1million for each year on death row. But DA, Harry Connick Sr. appealed and the US Supreme court threw out the verdict leaving him without one dime for the harm done him by the roguery of the prosecutor’s office in the name of the people of New Orleans. Why?
Citizens like Thompson, who are harmed by the misconduct of public officials, can sue the city or state for damages under section 1983 of the United States Code. No one will argue that what happened to Thompson, happened because of the misconduct on the part of the prosecutor’s office. Moreover, the prosecutor’s office is required by law to turnover all evidence favorable to a defendant to his lawyers. Four of the nine justices on the Supreme court felt that the DA’s misconduct in this case was enough to entitle Thompson the keep his $14 million award. But the majority thought otherwise. Justice Thomas, who wrote the decision for the majority said that the DA’s office is not liable for a single instance of failure to disclose evidence, even where, as in this instance, it resulted in grievous injury to an innocent man. Public officials are immune from liability when performing their official public duties. To overcome this, one suing a public official, as Thompson did here, because of failure to train prosecutors, must show that the prosecutor showed deliberate indifference to the need to properly train his assistants and that the lack of training was the actual cause of the failure to disclose the favorable evidence.
To satisfy this legal requirement it must be shown that the failure to properly train the prosecutors in this case amounted to deliberate indifference to Thompson’s rights. This means that there had to be proof that the Prosecutor’s office disregarded a known and obvious consequence of his failure to properly train his prosecutors. And to demonstrate this it was necessary for Thompson to show a pattern of deliberate indifference. The four instances of this DA’s office concealing evidence in the ten years prior to Thompson’s case was insufficient to meet this burden. It was not enough to put the DA’s office on notice, since none of them involved scientific evidence.
The court pointed out that legal training is what distinguishes a lawyer from the average public citizen. Attorneys are trained in law and are equipped with tools to interpret and apply legal principles, understand limits and exercise judgment; they must study ethics, pass a bar examination and take continuing education courses designed to reinforce professional standards. The DA is entitled to rely on his prosecutors training and ethical obligations unless there is a specific reason to believe otherwise, such as a pattern of violations, that those tools are inadequate in the usual and recurring situations with which prosecutors must deal. Proving that what happened to Thompson could have been avoided if prosecutors had better training is not enough. The withholding of evidence here was not caused by failure to properly train prosecutors, but by a single miscreant prosecutor’s willful suppression of evidence in an effort to railroad Thompson. This was a knowing, bad faith violation by a prosecutor and, it could not be attributed to lack of training. Holding the DA’s office responsible would make him liable every misdeed of each one of his assistants even when they knew the law forbade the misconduct and they willfully concealed evidence of a defendant’s innocence.
by Reynold Mason, JD
In a calculated move to bypass Congress, Immigration and Customs Enforcement (ICE) Director John Morton issued a memo on June 17th to all ICE Field Office Directors, Special Agents in Charge, and all Chief Counsel, authorizing them to decline to remove illegal aliens who meet the qualifications for amnesty under the DREAM Act. In the June 17th memo, Director Morton couches this administrative amnesty as merely providing "guidance on the exercise of prosecutorial discretion to ensure that the agency's immigration enforcement resources are focused on the agency's enforcement priorities. It then provides an extensive, factors ICE officers, agents, and attorneys should consider when determining whether to pursue the removal of an illegal alien. The factors falling under the purview of the DREAM Act include:
• The circumstances of the person's arrival in the U.S. and the manner of his or her entry, particularly if the alien came to the U.S. as a young child;
• The alien's pursuit of education in the U.S., with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the U.S.;
• Whether the person has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat; and
• The person's age, with particular consideration given to minors.
The memo also lists individuals present in the U.S. since childhood, minors and elderly individuals, and veterans and members of the U.S. armed forces as "positive factors" prompting particular care and consideration. ICE agents are already heeding the memo's directives. Less than a week after Director Morton issued the memo, ICE agents released University of California-Davis student Mandeep Chahal and her mother, even after the Board of Immigration Appeals ordered them removed to India. The Chahals' attorney, Kalpana Peddibhotla, cited the Morton memo as the reason for her clients' reprieve" I am pretty certain if that hadn't happened, they would be sitting on a plane tonight," Peddibhotla said.
Leaders of the National ICE Council, a union which represents roughly 7,000 ICE agents, officers, and employees, were outraged by the memo and its implications. "Any American concerned about immigration needs to brace themselves for what's coming," announced Council President Chris Crane in a press release. "Unable to pass its immigration agenda through legislation, the [Obama] Administration is now implementing it through agency policy." The Council also charges that ICE officials worked "hand-in-hand" with the open-borders lobby, but excluded its own officers from the process of developing policies.
Members of Congress are also alarmed by the Obama Administration's attempt to circumvent the law. Earlier this month the House of Representatives passed an amendment introduced by Rep. Ted Poe (R-TX) to the Homeland Security (DHS) fiscal year 2012 appropriations bill which, if passed by the Senate, would in part override the Morton memo by barring DHS funds from being used to grant parole or deferred action to most aliens subject to final orders of removal. The DHS bill is currently awaiting action by the Senate Committee on Appropriations.
Is comprehensive immigraiton reform just around the corner?
House Judiciary Committee Resurrects Immigrant Nursing Program
The House Judiciary Committee passed a bill last week which would re-start an expired program that admits nonimmigrant nurses to work in "health professional shortage areas." Originally known as the Nursing Relief for Disadvantaged Areas Act of 1999, the program provided an additional 500 nonimmigrant visas each fiscal year to aliens who had obtained a nursing license, passed the appropriate exam and was otherwise eligible. Each alien was granted an admission period of three years. Although originally only enacted for a period of four years, the program was extended until it eventually expired in fiscal year 2009.
Under H.R. 1933, sponsored by Judiciary Chairman Lamar Smith (R-TX), 300 visas would be issued for eligible nurses each year for an original time period of three years, at which point these nurses could extend their stay for an additional three years. During the mark-up, Ranking Member of the Judiciary Committee, Zoe Lofgren (D-CA), successfully offered one amendment which would make these nonimmigrant nursing visas portable, by allowing the aliens who have already been issued a visa to accept new employment as a nurse upon the petition of a new hospital employer. Both the bill and the added amendment passed through the committee on voice vote.
During the same mark-up session, the House Judiciary Committee also passed the Secure Visas Act by a vote of 17-11. The Secure Visas Act, also sponsored by Chairman Lamar Smith, designates authority to the Department of Homeland Security (DHS) to issue and revoke visas; authorizes DHS to conduct on-site reviews of visa applications in high-risk countries; and prevents judicial review of a DHS visa revocation decision.
North Carolina House Passes Mandatory E-Verify
On June 8, 2011 the North Carolina House passed mandatory E-Verify legislation by a vote of 68 to 43. The bill requires the use of E-Verify by private employers with 25 or more employees, public contractors and subcontractors, counties, municipalities and state agencies. However, employers that hire exclusively seasonal employees for less than 90 days out of the year are exempt. The bill also allows any person with a good faith belief that an employer is not complying to report the employer to the Attorney General. The Attorney General must investigate all valid complaints, but may not investigate complaints based solely on race.
Employers that do not comply with the E-Verify requirement are subject to civil penalties of $1,000 for a second violation or $2,000 for a third violation.
After its passage in the North Carolina House, HB 36 was sent to the Senate where it now awaits action in the Commerce Committee.
Foreign Governments Ask Court to Strike Down Utah Enforcement Bill
Mexico and thirteen Latin American countries signed onto an amicus (“friend of the court”) brief filed June 2, 2011, asking a federal judge to strike down Utah’s new immigration enforcement law, HB 497
The original plaintiffs, the American Civil Liberties Union (ACLU) and National Immigration Law Center (NILC), sued the State in May, claiming HB 497 is “preempted” by federal law.
The plaintiffs also claim that HB 497 will lead to unlawful detentions and racial profiling by Utah officers, as well as violates the federally guaranteed “right to travel.”
HB 497 contains enforcement provisions similar to Arizona’s SB 1070, which requires law enforcement officers to verify a person’s immigration status if that person has been lawfully stopped.
Big Business Takes a Look at Troubled Border
The U.S. Chamber of Commerce, one of the nation’s largest business lobbies, released a report last week detailing its recommended “Steps to a 21st Century U.S.- Mexico Border.”
The report addresses border issues that most affect the Chamber’s members and recommends action on topics such as trade, security, travel and immigration. The Chamber asserts that the U.S. and Mexico trade more than $1 billion worth of goods every day, and as such, building a strong and stable relationship with Mexico is of paramount importance to U.S. business.
The Chamber of Commerce report makes clear that business industries in the U.S. are affected by the escalating violence and turmoil that have come to characterize our nation’s Southern border. Drug cartel activity has made “extreme criminal behavior” a prominent threat to U.S. business trade with Mexico.
The report states that significant sums of money are being spent to secure employees and provide armored transportation. Companies conducting business with Mexico must factor in the high costs of protecting both their employees and their product, a cost which is being passed on to the consumer.
Finally, the report recognizes that “illegal immigration is one of the most significant problems facing our border today.” The Chamber calls for immigration reform to promote security in the U.S. and create economic growth, but argues that increasing legal immigration will actually decrease illegal immigration and the help ease the related security concerns hurting businesses.
Supreme Court Gives Town of Hazleton Hope
On Monday, June 6, 2011, the United States Supreme Court reviewed Lozano v. City of Hazleton, a decision from the Third Circuit Court of Appeals that struck down Hazleton’s immigration enforcement ordinance, and sent the case back for reconsideration.
In Lozano v. City of Hazleton, apartment owners and illegal aliens living within Hazleton, Pennsylvania sued the City in an attempt to strike down its immigration enforcement ordinance. That ordinance: (1) prohibits the hiring of illegal aliens, (2) mandates the use of E-Verify for employers, (3) prohibits the knowing harboring of illegal aliens within the City, and (4) requires renters to obtain rental occupancy licenses.
The Supreme Court determined that the Third Circuit’s decision could no longer stand given the Supreme Court’s recent decision in Chamber of Commerce v. Whiting, which held that Arizona could constitutionally mandate E-Verify and suspend or revoke business licenses of employers that knowingly employ unauthorized aliens. It sent the case back to the Third Circuit with instructions to reconsider.
Supreme Court Decision Lets California In-State Tuition Law Stand
The Supreme Court last week let California’s law giving in-state tuition to illegal aliens stand by refusing to consider the plaintiffs’ appeal of the decision rendered by the California Supreme Court.
In Martinez v. Regents of the University of California, U.S. citizen students who were paying out-of-state tuition sued the California university, the California State university, and the California Community College systems claiming they violated federal law by giving in-state tuition to illegal aliens, but not also giving the same in-state tuition to their out-of-State students. However, the California Supreme Court upheld the statute and the United States Supreme Court declined to review the California Supreme Court’s decision. The U.S Supreme Court did not issue any decision or explanation in conjunction with its ruling.
California Assembly Pursues its own DREAM
The California Legislature is moving forward with its own version. Both bills were introduced by Democratic Assembly Member Gil Cedillo of Los Angeles. Conrado Terrazas, spokesman for Cedillo, noted that the bills are different from federal legislation because they only allow illegal aliens who already qualify for in-state tuition to apply for scholarships and other aid money. (San Diego Union Tribune, June 3, 2011) The federal versions of similar legislation involve amnesty provisions, including a path to citizenship.
Assembly Bill 130, which is known as the California Dream Act of 2011, would allow illegal alien students who are exempt from paying nonresident tuition access to privately-funded scholarships. It passed the California Assembly on a party-line vote of 51-22 and is now waiting action in the Senate Committee on Appropriations. Assembly Bill 131 would allow illegal aliens access to state-funded grants and scholarships for college tuition. It is scheduled for a hearing before the Senate Committee on Education on June 22. Under AB 131, illegal alien students would be eligible for “all student financial aid programs administered by the State of California to the full extent
Alabama Passes Toughest Immigration Law in the U.S.
On Thursday, June 2, the Alabama Legislature passed arguably the toughest state immigration bill in the United States. Much like Arizona’s SB 1070, the law covers a wide array of immigration matters including employment, voting, education, and enforcement. It requires that all employers in the state use E-Verify. t also requires law enforcement officers to verify the immigration status of a person lawfully stopped for a violation of state or local law when the officer has reasonable suspicion the person is unlawfully present in the U.S. The bill also prohibits sanctuary practices by state and local officials and prohibits concealing, harboring, and transporting illegal aliens. Governor Bentley is expected to sign the bill into law.
New York, California Revolt against Secure Communities
New York Governor Andrew Cuomo announced last week he was suspending the State’s cooperation with Secure Communities because of its impact on families, immigrant communities and law enforcement. In a letter to the U.S. Department of Homeland Security, Counsel to Governor Cuomo, Mylan L. Denerstein wrote “The heart of concern is that the program, conceived of as a method of targeting those who pose the greatest threat in our communities, is in fact having the opposite effect and compromising public safety by deterring witnesses to crime and others from working with law enforcement.”
Last week’s events in New York and California come on the heels of Illinois Governor Pat Quinn’s decision in May to cease his State’s participation in the Secure Communities program. Governor Quinn told ICE officials that “due to the conflict between the stated purpose of Secure Communities and the implementation of the program, Illinois state police will no longer participate Masachusetts Governor Deval Patrick has also joined the Secure Communities debate, announcing today that his State will not be participating in the program, while Minnesota and Washington have declined to join the program all together.
Maryland Residents Fight Back Against Tuition Breaks for Illegal Aliens
Last Tuesday, Maryland true immigration reform activists turned in 62,496 signatures in a first step to preventing in-state tuition rates for illegal aliens. (Washington Post, June 1, 2011) The group needs just over 55,000 signatures to force a vote on the measure providing tuition breaks to aliens in Maryland illegally. In order to continue the fight against illegal immigration, one-third of the total number of needed signatures had to be submitted by May 31 at midnight. Maryland’s Governor, Martin O’Malley, signed a bill into law earlier this legislative session that allowed illegal alien students who have attended Maryland high schools for three years to receive in-state tuition at Maryland colleges.
Incoming DNC Chair: Republicans Believe Illegal Immigration Should be a Crime
At a recent Christian Science Monitor breakfast, Rep. Debbie Wasserman-Shultz (D-FL) denounced Republicans for thinking that illegal immigration should “in fact be a crime.” (Fox News, May 31, 2011) The incoming chairwoman of the Democratic National Committee told listeners that Democrats want “comprehensive immigration reform” and that the 12 million illegal aliens currently in the U.S. are “a necessity” for the economy. She then said that the general “Republican solution … in the last three years is that we should just pack them all up and ship them back to their own countries and that in fact it should be a crime and we should arrest them all." That, she said, is what Rep. Sensenbrenner’s 2005 legislation proposed.
*****My thanks to FAIR for allowing me the use of their immigration updates in preparing this article
by Reynold Mason, JD
Rohrabacher Seeks to End Health Care Subsidies for Illegal Aliens
This month Rep. Dana Rohrabacher (R-CA) reintroduced H.R. 1822, the “No Health Care Subsidies for Illegal Aliens Act,” to prevent illegal aliens from receiving health insurance subsidies under the new health care law. By applying a documentation provision currently part of the Medicaid to the new health care law, the legislation would close verification loopholes in the 2010 health care reform law to ensure U.S. taxpayers are not footing the bill for illegal aliens’ health care.
Under the bill, aliens must provide documents to support his or her claim. This requirement can be met in one of two ways; the applicant must either present a U.S. passport, a Naturalization Certificate, a U.S. Citizenship Certificate, or a valid state-issued driver’s license if the state issuing the license requires proof of citizenship or nationality to obtain the license.
Napolitano Extends Temporary Protected Status for Haitians
Homeland Security (DHS) Secretary Janet Napolitano this month extended Temporary Protected Status (TPS) for Haitian nationals living in the United States. TPS is a provision of the Immigration and Nationality Act (INA) under which the U.S. government may grant aliens (legal or illegal) authority to remain living and working in the U.S. temporarily if “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.” These conditions include earthquakes and other natural disasters resulting in a disruption of living conditions in the area. When Secretary Napolitano originally granted TPS to Haitian nationals, she was clear that it was only to apply to Haitian individuals already residing in the U.S. at the time of the earthquake. She reiterated that “those who attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and will be repatriated.” The designation was originally issued to last for 18 months, at which time Haitian aliens would be required to return to Haiti.
Rather than just allowing for those who were in the U.S. at the time of the earthquake to remain, the Secretary re-designated Haiti as eligible for TPS, “meaning that eligible Haitian nationals who have continuously resided in the United States since Jan. 12, 2011, will also be able to obtain TPS through Jan. 22, 2013.” (Id.)
DHS reported that currently, approximately 48,000 Haitian nationals with TPS reside in the United States. (DHS News Release, May 17, 2011) This number also does not include the increase that will come with Napolitano’s latest announcement, as the re-designation does not take effect until July 23, 2011
by Reynols Mason, JD
Supreme Court Upholds Arizona’s E-Verify Law
In a landmark decision that has broad implications for immigration enforcement at the state level, the United States Supreme Court Thursday upheld the Arizona Legal Workers Act. Passed in 2007. The Act has two major components: (1) it requires Arizona employers to use the federal E-Verify system; and (2) it allows Arizona to suspend or revoke the business licenses of employers who knowingly hire illegal aliens. The Chamber of Commerce filed a lawsuit in 2007 seeking to strike down the Arizona law, arguing that both provisions were preempted by federal law. However, in Thursday’s 5-3 decision in Chamber of Commerce v. Whiting, the Supreme Court rejected the Chamber’s arguments and held that Arizona’s law is constitutional.
The Obama administration argued that the lower courts were wrong to uphold the Arizona Legal Workers Act because federal immigration law expressly preempts any state law imposing sanctions on employers hiring illegal aliens. Several groups filed amicus briefs in support of the Chamber’s lawsuit. These included the American Immigration Lawyers Association (AILA); the American Civil Liberties Union (ACLU); the American Immigration Council (AIC); the Anti-Defamation League (ADL); the League of United Latin American Citizens (LULAC); National Council of La Raza; Southern Poverty Law Center (SPLC); and Service Employees’ International Union (SEIU).
House Immigration Subcommittee Holds Hearing on Bill to Keep Criminal Aliens Behind Bars
The House Subcommittee on Immigration Policy and Enforcement held a hearing last week to debate Judiciary Chairman Rep. Lamar Smith’s (R-TX) new bill, the “Keep Our Communities Safe Act”. The grants the Secretary of Homeland Security (DHS) the authority to detain dangerous aliens who have been ordered deported, but cannot be removed. “Just because a criminal immigrant cannot be returned to their home country does not mean they should be freed into our communities. Dangerous criminal immigrants need to be detained,” said Smith.
He introduced H.R. 1932 to remedy the impact of Zadvydas v. Davis, a 2001 Supreme Court case that addressed how long the government may detain an alien while seeking to remove him. The Court ruled in that case, that those who legally entered the U.S. may not be detained longer than six months. if removal is not “reasonably foreseeable.” The Supreme Court later expanded the holding of Zadvydas to aliens who entered the country illegally. Thus, the government must now release all aliens, including criminal aliens, from detention six months after their 90-day removal period has expired if a court determines that removal of the alien is not reasonably foreseeable.
Since the Supreme Court’s decision in Zadvydas, thousands of criminal aliens have been released into the U.S. general population. At last week’s hearing, Thomas Dupree, Jr., a former Principal Deputy Assistant U.S. Attorney General, told the Immigration Subcommittee that the consequence of Zadvydas is that “the government is compelled to release—into our communities—murderers, child molesters and other predators who pose a clear and direct threat to public safety and national security.”
Senator Rubio Holds His Ground against Amnesty
Senator Marco Rubio (R-FL) is standing firm against the DREAM Act and other amnesty legislation for illegal aliens. After Democrats reintroduced the DREAM Act this month, Rubio told the Spanish-language network, Telemundo, he would vote against it. ((Senator Rubio then reiterated his opposition to the DREAM Act)) in an interview with Politico last week, saying that “we need an immigration system that works in order for America to grow and prosper economically. But we have to have laws. We have to have a legal immigration system.”
The Florida Senator is taking now taking heat from amnesty advocates who were hoping Rubio would renege on his support for pro-enforcement policies. Jorge Mursuli, a Cuban immigrant and executive director of a Florida Hispanic civic-engagement group said Senator Rubio’s continued support for immigration enforcement created a treasonous “Benedict Arnold feeling.” Frank Sharry, director of the pro-amnesty group America’s Voice, decried Senator Rubio’s continued opposition to amnesty. “To be against comprehensive immigration reform and a path to citizenship and against the DREAM Act defines you in the Latino immigrant community as a hard-liner and an enemy of the community,” said Sharry. And, Hector Luis Alamo, Jr., a freelance writer for Hispanically Speaking News last week wrote: “Senator Rubio might look Latino and have a Latino-sounding name, but his recent political alignment further to the right shows that he is not pro-Latino. And whereas the push for fair and comprehensive immigration reform was once a bipartisan issue, Democrats have remained the chief advocates of such legislation."