I got into big trouble for writing “Dear Sir” without the “Madam”. The salutation as I have been accustomed to doing it was, for decades, the manner of addressing judges when their gender was unknown. This was the norm and no one batted an eye. It just happened that the judge who was assigned this matter was female, and wasn’t about to let me off the hook for what she regarded as a sexist. True, I still sometimes find myself using words like mankind in the biblical sense when I mean both sexes. I thought everyone understood that. Apparently, I am bit behind the times. I must have missed the revolution in the way we speak. But To tell the truth, I think the English language is in a bad way. We now use words to hide rather than express what we truly mean.
It occurred to me as I read a summary put out by Planned Parenthood of last term’s session of the Texas legislature which banned funding for abortion, that we use words to conceal and obfuscate meaning, rather like lawyers, to keep people from forming a true picture of what it is we are getting at.
“Unfortunately,” reports Planned Parenthood “ this session will be remembered as the "War on Women" -- when Texas legislators chose to relentlessly attack reproductive rights and access to cost saving family planning services, when Texas women lost access to birth control and breast cancer screenings, ……” Not a single mention of the word abortion which is at the heart of the matter.
In 1946, George Orwell published an essay in the British literary magazine Horizon, arguing against poor usage of English by modern writers. Orwell felt that the decline of their language had political and economic causes. Boy was he right. Language, Orwell said, becomes ugly and inaccurate because our thoughts are foolish. English is full of bad habits and, I might add, full of spin. As soon as certain topics are raised, we consciously begin to parse our words as not to give offense to anyone. We are like politicians trying to appeal to the broadest constituency, using buzz words that obscure our meaning and dodge the truth. Just last week I ran across a litany of perversions and linguistic swindles perpetuated in the name of what we now refer to as political correctness. The whole tendency is away from clarity and concreteness, making it difficult to get a mental picture of what is truly at stake. Consider this passage from Orwell, for example:
In our time, political speech and writing are largely the defense of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them. Consider for instance some comfortable English professor defending Russian totalitarianism. He cannot say outright, ‘I believe in killing off your opponents when you can get good results by doing so’. Probably, therefore, he will say something like this:
‘While freely conceding that the Soviet regime exhibits certain features which the humanitarian may be inclined to deplore, we must, I think, agree that a certain curtailment of the right to political opposition is an unavoidable concomitant of transitional periods, and that the rigors which the Russian people have been called upon to undergo have been amply justified in the sphere of concrete achievement.’
Today PC is turning our language on its head. The use of euphemisms has been elevated to an art through the development of political correctness. Euphemisms have always been a part of language; people have used substitute words or phrases to lessen the impact of something they want to say. Instead of calling a person a liar, one might say, "I think you may have your facts wrong." Or, instead of describing a person as being fat, you might say the person is "plump" or "heavy set." or perhaps “full-figured”. Or “she is slender” instead of “she is skinny”. These are acceptable because their use is designed to convey the meaning while sparing the feelings of those to whom our remarks are addressed.
But there is another side to this coin. When we call drug addicts victims instead of criminals even though they break the law by possessing and using illegal drugs, we are hiding behind words; when we cannot refer to God as “Him” because women might be offended, we have fallen into the abyss of political correctness; when we call “blackboards”” chalkboards” because we fear offending blacks we are beyond help. And when we can change the name of a “Manhole cover” to “Personnel access unit” then we are really sunk.
We have become too hung up on too many sensibilities. Jokes that once elicited uproarious laughter on Archie Bunker cannot even be uttered in public today. Imagine replacing the word “Nigger” in Mark Twain’s classic Huckleberry Finn (everyone says the N- word) with the word slave because of fear of offending blacks! No one is to blame for anything anymore. Everyone is a victim. So a instead of saying “blind” which makes clear that the person cannot see, we say “vision impaired “What does that mean? The blind can see but out of only one eye, or is near sighted? A bum is not a bum but a “person experiencing homelessness” and a “disabled person” is now “a person with a disability.” Are my children Native Americans because they were born here or does that just refer to American Indians?
The now iconic Dr King referred in his speeches to “negroes’ He would be taken to task today by the NAACP which now prefers the term “blacks”. “Colored” and “African-American” appear to be out of vogue. A few years ago the term “people of color” made a cameo but it too has now fallen victim to political correctness.
In a nod to the women’s movement, the “Mailman” is now a ‘Mail Carrier” and the “Fireman” a “Fire Fighter”; the old cop on the beat is no longer a policeman but rather a public safety officer... The Chairman is now the Chairperson, and the spokesman the spokesperson. And when was the last time you heard a Hollywood starlet. (I mean star) refer to herself as an actress? But most amazingly, recall when an aide to DC mayor Marion Barry got canned for referring the inadequate sum of money in his budget as a “niggardly” sum (the word means not generous, stingy, inadequate).
If this keeps up mankind will become an undefined mass of persons turned into robots of political correctness , manhandling words like mannequins, spewing verbiage like manure, but signifying nothing. Sensible persons must resist the urge to abandon their linguistic craftspersonship, honed over decades, to keep from maneuvering us into language court on a charge of linguistic homicide.
Earlier this year congress voted to defund Planned Parenthood. The effort failed in the senate, but by just nine votes. Planned Parenthood Federation of America is best known as the largest provider of abortions in the country. They have been involved in lawsuits challenging restrictions on abortions many of which have reached the US Supreme Court. They have won more than they have lost. But Planned Parenthood has fared less well on the state level. The states have now joined the defunding effort, with Texas, Indiana, Kansas, North Carolina and New Hampshire passing or proposing laws to cut off funding to Planned Parenthood. The organization is not taking this lying down. It has fired off legal briefs challenging the defunding and last month won an injunction against the Indiana law. After Roe v Wade made abortions legal in 1973, Congress passed the Hyde Amendment which bars the use of Federal money to pay for abortions. Planned Parenthood launched a legal attack on the amendment but it was upheld by the Court. But not content to let its faith rest with the new wave of conservative legislators, the organization is waging war on a different front. This battle is more stealth than the raging battle over the morality of the services it provides or the legal arguments made in its briefs.
Fighting with words
The new weapon of choice is just words. Here is what Planned Parenthood said about the just concluded Texas legislative session: “Unfortunately, this session will be remembered as the "War on Women" -- when Texas legislators chose to relentlessly attack reproductive rights and access to cost saving family planning services, when Texas women lost access to birth control and breast cancer screenings, ……” Not a solitary mention of the word that is at the heart of the matter, abortion. The aim of the legislature is to cut off funding for abortions, and only abortions. The bill does not attack reproductive rights and does not limit access to family planning services. What it does is limit access to abortion by denying funding for the procedure. Those who oppose the defunding of Planned Parenthood scrupulously avoid any mention of the real issue driving the debate, the use of public funds to pay for abortions and nothing else. Planned Parenthood, which provides numerous other services such as cancer screenings and family planning, can receive Medicaid money for non-abortion-related services. The terms ‘reproductive choice”, “access to health care” and “cancer screenings” are used to frame the debate and scrub any negative connotations of the issue from the minds of the public. It obfuscates the issue and poisons the debate.
Must taxpayers pay the bill?
Reasonable people would not want to deprive women of access to health care or cancer screenings. The underlying issue is medical coverage for abortion for which taxpayers must foot the bill. On this question, the answer must rest with taxpayers who speak through their elected representatives. The question must be answered by each individual with resort to conscience and personal judgment. It means that each citizen has to become his own philosopher. This puts a heavy responsibility on each of us, but for our system to work, freedom to make the decision is essential, freedom to speak out without being tagged with vile monikers, and freedom to keep silent if we so choose. And this freedom must be respected. Planned Parenthood makes no pretense of fairness or objectivity. The rest of us have a greater responsibility.
If the constitution requires the government to guarantee the indigent access to abortion as a protected right, then it must take similar action to secure other liberties that are not fully exercised because of economic circumstances. Freedom of religion is a fundamental liberty, yet no one will suggest that government pay the cost of transportation to Sunday worship so that the poor may enjoy the freedom of religion to the fullest. And during elections people exercise their right to free speech by supporting some candidates and opposing others. But individuals with greater wealth may contribute more. These people are clearly more able to exercise their free speech right than persons of lesser means. Yet no one suggests that the government provide public funds so the less well off can participate in the electoral process at the same level as the wealthy. To argue that the government must provide poor women with equal access to abortion services is ludicrous. The government must tolerate the exercise of the right to choose abortion but it is free to try to persuade women to its position on the issue as long as it does not coerce their choice.
Money and morals local politics
Scores of states and localities refused to do business with corporations which did business with South Africa to express their opposition to Apartheid. Indiana is spending its own money when it enters into contracts. And just like each of us, it can govern its economic activity and determine with whom it will and will not deal, and how public funds should be used. There is nothing new about this. Cutting off funds to Planned Parenthood does not affect its rights or the right of a women to exercise her constitutional right to an abortion. What the people of the state desire must be considered. Even when it is perfectly legitimate to engage in an activity that is legal, states and localities decide whether it will be permitted. More than thirty states specifically allows cities and counties to elect to go dry by public referendum, despite the fact that the sale of liquor is not unlawful, while seventeen states preclude any ban on the sale of alcohol by localities. True, the ability to buy booze does not rise to the level of a constitutional right. My point is that the locality decides.
While it is true that the machinery and power of Indiana is used selectively, in this instance to the detriment of Planned Parenthood, this is nothing new. States have always had the power to help or hurt, by means of taxation and regulation; they can compel or prohibit, take or give. A subsidy of abortion is the most direct benefit. But the government is under no obligation to act on behalf of women and it in no way violates their liberty by refusing to fund services that increase access to abortion. Instead the decision not to fund reflects the government’s chosen position and its attempt at swaying others to its position. This was the case with divestment as it related to Apartheid. There is no government imposed inequality here, because the government is not discriminating among anyone. “If you want to do business with us don’t do business in South Africa.” To be sure has a political component. But there is a political foundation to all that the government does.
The government does not become involved in an activity unless there is some demand through the political process, be it an interest group or a group of like-minded voters banding together. Using public money to pay for abortions is tantamount to endorsing them. The moral objections of those footing the bill must be respected. Most of us if asked for a loan would ask, “What do you need the money for?”And if the answer is to buy drugs or something to which we have a moral objection, we will decline to give or make the loan. Indiana is no different. It has an objection to the use to which its money is being put and it therefore has the right to say no. This is not denying access to health care. A woman is entitled to have an abortion is she chooses but nothing obligates taxpayers to pay for it. The inequality if it exists is not imposed by the government. States that do decide to provide women with some degree of health care must do so in a way that those eligible to receive the services receive it in an impartial manner.The inequality is a fact of life. But the decision not to pay for the procedure applies equally to everyone.
Aug.19, 2011 Under fire from Hispanic groups for record-high deportations, the Obama administration said Thursday it will undertake a case-by-case review of illegal immigrants who are facing ouster from the country and will allow many who don’t have criminal records the chance to stay. Homeland Security Secretary Janet Napolitano announced that there will be an indefinite delay in many deportations and individual case reviews of the approximately 300,000 illegal immigrants who are currently facing possible expulsion, the AP reported.
Last year, the Obama administration deported nearly 400,000 people — a record number. Of the 393,000 deported, fewer than half of those were convicted criminals.The rising number of deportations has angered the Hispanic community, a key voting bloc for President Barack Obama, and there were protests organized by Latinos around the country about it earlier this week.
The administration said Thursday its top priority will be targeting illegal immigrants with criminal convictions for deportation. Those who are low priorities for deporting — such as young people who were brought to the U.S. as children, military veterans and spouses of military personnel — will no longer be a focus. The case-by-case review will allow the Dept. of Homeland Security and Dept. of Justice to clear out the low-priority cases and ensure that illegal immigrants with criminal convictions or who pose a security risk are at the forefront of the deportation pipeline.
“They will be applying common sense guidelines to make these decisions, like a person’s ties and contributions to the community, their family relationships and military service record,” White House Director of Intergovernmental Affairs Cecilia Muñoz wrote on the White House blog. “In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn’t – that’s the smartest way to follow the law while we stay focused on working with the Congress to fix it.”
Sen. Dick Durbin (D-Ill.) — a major advocate for the DREAM Act, which would create a path to citizenship for illegal immigrants brought to the U.S. as children — said the new process will stop almost all deportations of people that his legislation is designed to protect.“We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember,” Durbin said in a statement. “The Administration’s new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented.”
And Majority Leader Harry Reid (D-Nev.) released a statement praising the move, saying it is “a step in the right direction.” He also called for Congress to work together toward “enacting tough, smart, and fair comprehensive immigration reform.”
On Tuesday, demonstrators protested in a half dozen cities around the country, including at Obama’s 2012 campaign headquarters in Chicago, saying the administration has not fulfilled his promise to target only the “worst of the worst.”
By Reynold N. Mason JD
Atlanta, Aug.18, 2011 President Obama is once again in full election mode. And once again immigration is a hot topic over which the country remains divided. On the right, Republicans are calling for tougher enforcement measures, including more deportations and stronger border security. On the left, Democrats want comprehensive immigration reform to provide a pathway to citizenship for the millions of undocumented immigrants living in the country
No hope and little change
In 2008, Barak Obama was the candidate of “hope and change”. But as far as Hispanics are concerned, hopes have been dashed on the shores of hard political reality and the change that the President has wrought is not what they thought it would be. There has been no significant movement toward federal immigration reform since a bipartisan effort died in 2007, blocked by conservative opposition joined by a few democrats. But it has been the subject of a rash of legislation at the state level, and President Obama suggested in May 2011 that he was prepared to make it an issue in the coming presidential campaign. Tennessee, Arizona, Indiana, Utah Georgia, Alabama and several other states have enacted tough anti-immigration laws, since Mr. Obama was elected. But on the federal level there has been nothing but inertia bothering on indifference.
Other than suing Arizona to block its immigration law, and Georgia and Alabama to seek injunctions against those states’ tough immigration laws, the President cannot point to anything positive or affirmative on the federal level that his administration has done to the benefit of immigrants whose cause he promised to give his attention. It has been a strategy of all parry and no thrust. The promissory utterance made in 2008, “When I'm president, I will put comprehensive immigration reform back on the nation's agenda. And I will not rest until it is passed once and for all." now rings hollow. Not only is comprehensive immigration not back on the agenda, the truth is it never was. That is because Mr. Obama felt that democrats “did not have the stomach for it” after he had expended all of his political capital pushing health care whch most immigrants are not able to access..
A wink and a nod
In the beginning the president appointed Sonia Sotomayor to the Supreme Court and Hilda Solis to his cabinet as Labor Secretary. But beyond those appointments it is difficult to separate any- thing the president has done on immigration, from what any staunch conservative might have. In his less than two years in office, the president has deported three times as many immigrants as president Bush did in his entire term. He has ramped up his Secure Communities Program, in which States share fingerprints of all arrestees with the FBI. The FBI then uses the information and cross checks it against its list of persons who have violated the law. Mr. Obama claims that his administration’s focus is on criminal immigrants. But the President has deported more than one million immigrants, including DREAM Act eligible students, since he took office. One group referred to the president as “Deporter-in-Chief.” Hispanic voters, including many newly naturalized immigrants, helped win several swing states for Barack Obama in 2008. These groups have pressed the President Obama to halt workplace raids and to move forward with legislation opening legal pathways for illegal immigrants. But despite early pledges that it would moderate the Bush administration's tough policies, the Obama administration is pursuing an aggressive strategy for an illegal-immigration crackdown that relies significantly on programs started by his predecessor.
The blame game
At a speech before La Raza last month Mr. Obama placed the blame for his inaction on immigration on Republicans and congress saying, “So, yes, feel free to keep the heat on me and keep the heat on Democrats. But here’s the only thing you should know. The Democrats and your President are with you. Don’t get confused about that.” The finger pointing is not likely to win kudos from immigration advocates who are disappointed in the president’s apparent fear to tread on conservative toes, and his unexplained failure to champion immigration reform as promised, even when he had the entire government at his beck and call during his first two years in office. Now that Mr. Obama needs the Latino vote, he’s attempting to close the window and pull the drapes shut to keep his dismal record and his broken promises from seeing the light of day. But many prominent Hispanic leaders aren’t falling for it. Representative Gutierrez, who has authored a proposal for comprehensive immigration reform, and is a leader on the issue in congress, was arrested in front the white house last month protesting Mr. Obama’s lack of imitative on immigration. He has said that he doubts he will support the president in his reelection bid.
To his credit the president has followed a policy of benign neglect. While he deports criminal immigrants in record numbers, Department of Homeland Security has a policy of releasing non- criminal aliens, sometimes with work authorization. And in a recent memo Mr. John Morton, director of ICE directed his staff to use discretion when dealing with young people who meet Dream criteria. But the employer audits continue full throttle. Instead of raiding factories, the new technique is to audit the books of employers and force them to fire employees for whom they cannot provide proof of legal status. The headlines speak volumes about the misery and hardship this policy has visited on people who placed their hope in this president.
The information below is taken from news sources. Each party in the report either confessed or was convicted of hiring illegal immigrants. These cases are listed to illustrate the widespread abuse and recently increasing prosecution of companies employing illegal aliens.
Legal and illegal immigrants alike in Colorado's cow country are too scared to return to work after Immigration and Customs Enforcement agents arrested 11 workers at the Wildcat Dairy in Morgan County for using forged green cards. Of 60 workers, 20 were indicted by a Colorado grand jury as "egregious violators" for using forged documents to get work. While ICE still has warrants out for nine workers, 50 of Wildcat's 60 employees were so scared of being deported that they didn't return to the dairy after the raid.
• August 2011 — George Valvanis, the manager of several Dunkin’ Donuts stores in Maine, pled guilty to employing illegal aliens. As a result of his plea, he was sentenced to 6 months of home confinement, a fine of $64,000 and 5 years of probation with 20 hours of community service per month. (AP August 2, 2011)
• July 2011 — Simon Banda-Mireles, a Mexican who illegally reentered the U.S. after deportation as Jorge DeLarco, pled guilty to harboring 25 to 100 illegal aliens whom he employed in his restaurants in New York and elsewhere. He also admitted to paying those workers less than the minimum wage. He and ten of his restaurant managers were arrested in 2008. To date 6 of the managers have been convicted, and trials are pending for the other 4. Banda-Mireles was sentenced to 46 months in prison, and must pay restitution in the amount of $239,089 to 15 illegal aliens who worked for him. He also agreed to forfeit $70,009 to the government. (Observer, March 30, 2011, USCIS Press Release, July 14, 2011)
• June 2011 — Federal prosecutors have asked for a fine of $475,000 be levied against the owner of a construction contractor who was convicted of knowingly employing illegal alien workers in Louisiana. Randy Weitzel pled guilty on June 3, 2011. Two others convicted at the same time were Woody Brodtmann Jr. and Agustin Arcadia. Proof submitted in the trial included the fact that in 2003 Weitzel allegedly stopped paying a worker under one name and began paying him under another name. (AP June 29, 2011)
By Reynold N. Mason
Atlanta, Aug.10, 2011. Last week a mother was arrested in Rock Hill, North Carolina and charged for giving alcohol to her son. The drinking took place during a birthday party at home. The mother now faces a charge of contributing to the delinquency of a minor. This kind of law enforcement bends the law to the point of absurdity and tramples upon the discretion and authority of parents in raising their children.
Astounding and disingenuous legal excuses
With children there is a specific identifiable tradition of parental control. Children have traditionally been treated as a protected class by our society. Until age 18 generally, a child by law remains under the control of his parents. The legal gymnastics employed by the courts to fashion rationales for permitting minors to have abortions without parental input are as astounding as they are disingenuous. While agreeing that the power of the state is greater over children than over adults, the Supreme Court has nonetheless struck down a ban on the sale of contraceptives to minors, saying it does not measurably contribute to deterrent purpose of discouraging sexual activity, and would subject minors to increased risk of pregnancy. We don’t abolish bans on the sale of tobacco and alcohol to minors simply because children find a ways to drink and smoke in spite of the bans. Under this rational supplying needles to drug addicts could not be outlawed because it would expose the addicts to greater risk of infection and disease
It does not take a genius to know that the vast majority of parents go to great lengths to secure the welfare of their children. In most instances parents trying to do what is best for their children have the blessing of the government. So why do the courts torture the law to allow authorities to meddle in family matters and criminalize this mother who was celebrating a special occasion with her son? The Rock Hill Police Department should concern itself with fighting real crime rather than spending time and taxpayer’s money sticking their noses into family matters. The moral soundness of our minor children is not the business of the police or the law makers who enable them. Good, bad, right and wrong are taught children by parents. When the state pokes its legislative nose into the home, it is stepping into an area reserved for parents and guardians.
A Slippery Slope
No one doubts that children are a valuable resource and ought to be raised to become responsible citizens. But the state has no business dictating people’s morality. That is a slippery slope. Not long ago homosexuality, adultery and fornication were against the law even thought these involved acts between consenting adults done in private. And not too long ago, all forms of promiscuity and illicit sexual relations, whether premarital or extramarital were forbidden. Today, no one can imagine a philandering husband being hauled off in handcuffs for fooling around. We have come to understand that one’s morals are his business and no one else’s. These laws have now gone out of fashion, being revoked or fallen into desuetude. Yet despite the absence of legal sanction, no parent would teach a child that sexual promiscuity or infidelity in marriage is appropriate. It is not respect for the law or fear of punishment that impels parents to do right by their children. It is their own sense of right and wrong, good and bad.
Immature and Irresponsible
In recognizing the immaturity and irresponsibility of minors almost all states prohibit certain activities to minors. We do not allow our children to make important decisions unless we think they are sufficiently mature. Laws in every state place limits on marriage for minors and on their sexuality. A minor cannot legally consent to sex, cannot vote and are allowed to disaffirm contracts signed before they are adults. Minors cannot purchase tobacco or alcohol and cannot gamble. They are denied admission to some the movies unless accompanied by a parent or guardian. There is an entire system of juvenile justice whose purpose is to keep minors separate from adult offenders. If a minor must be incarcerated it must be in a facility separate from adults. All of these restrictions are intended to protect the health safety and morals of young people. Yet all of the solicitude and legal restrictions are cast aside when a young woman seeks an abortion.
Twenty-five states and the District of Columbia have laws that explicitly give minors the authority to consent to contraceptive services, and twenty-seven states and the District of Columbia specifically allow pregnant minors to the obtain prenatal care and delivery services without parental consent or notification. The Title X federal family planning program, which supports clinics that provide contraceptive service and other reproductive health care to minors on a confidential basis and without the need for parental consent or notification, has seen efforts made by Congress to require consent or notification before a minor receives these services. All of these efforts, the most recent in 1998, have failed.
. A nod to the pro choice movement
The court has allowed minors to obtain abortions without notice to or input from parents by the expedient of judicial bypass; the minor demonstrates to a judge that she is sufficiently mature to make an abortion decision herself—a convenient way of concealing from parents behavior that is against the rules. This is a nod to the pro choice movement. Proving maturity cannot get a minor a six pack at the corner store, or a pass into a Vegas casino, but it is enough to get her an abortion. The same young woman who can obtain an abortion without her parents’ consent by proving her maturity, cannot consent to sex. And the man who got her pregnant is still subject to a charge of statutory rape.
The Double standard is evident
In a recent case the court said that minors are impulsive and more susceptible to manipulation. “…a lack of maturity and underdeveloped sense of responsibility,” said the court, “are found in youth more often than in adults…..these qualities often result in impetuous and ill-considered actions and decisions.” In recognizing the irresponsibility and immaturity of minors, the Supreme Court in 2005, prohibited the death penalty for minors. From those words it is clear that the court views juveniles as categorically less culpable than the average criminal. For the same reason the court should prohibit abortion for minors without parental consent. In the court’s own words “youth is more than a chronological fact. It is a time and condition of life when a person may be more susceptible to influence, psychological damage and outside pressures… Juveniles have less control and less experience with control over their environment…. The character of juveniles is not well formed as that of an adult, their personality traits are more transitory and because of these, the penal law applies with lesser force.” Those views are still consistent with our understanding of today’s youth, and this rational should prevent young women from getting an abortion without their parent’s knowledge or consent. These same reasons, which justify the need for parental consent to an appendectomy, are more than enough to justify banning abortions for minors without parental consent.
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.