Archive for the 'Current Events' Category

As I noted a couple of months ago, the dust kicked up by last year’s Supreme Court decision Bell Atlantic Corp. v. Twombly will take quite a while to settle. In a recent (and ongoing) case in which post-9/11 detainees are suing the federal government, the feds tried to get the case dismissed on the grounds that the facts alleged in the pleadings were unsupported by sufficient evidence. The Court of Appeals for the Second Circuit ruled that the pleadings were “plausible,” borrowing language from Bell Atlantic. According to the New York Times:

The standard for allowing the case to go forward should be higher than mere plausibility, the government said, pointing to recent Supreme Court decisions, including one in an antitrust case last year, that raised the standard for the evidence that plaintiffs must provide at the initial stage in order to withstand a motion to dismiss their lawsuit.

The unnamed antitrust case is a reference to Bell Atlantic and while the NYT article implies that the Government is getting greedy and arguing that even plausibility is insufficient, the text of the appeal makes it look more as if the Government is arguing that even though the Second Circuit couched its opinion in terms of plausibility, the evidence at this early stage is nonetheless insufficient under Bell Atlantic.

The case is styled Ashcroft v. Iqbal and the Supreme Court granted certiorari, meaning that we could soon have a firmer understanding of the impact of Bell Atlantic on the notice pleading system. Stay tuned…

The attorney/client privilege has many implications, one of which being that in civil cases, a party cannot obtain discovery from the opposing party’s lawyer of information told to him by his client. The primary reason for this is that a person has to be able to have 100% trust and confidence in his lawyer if the two are to work together to prepare a proper case.

In the criminal justice system, the attorney/client privilege looks a little different, at least in the public eye. One of the ethical requirements that obligates a lawyer is to never incriminate his client. The reasons for this are much the same as in the civil context. Even though we don’t like “bad guys,” they are nonetheless entitled to an adequate defense. If the system allowed lawyers to “rat out” their clients, the system would effectively deprive the accused of an adequate defense. Defendants would always be on guard, unable to trust their own attorney. They would resist divulging any information they wouldn’t tell the police and they would simply be unable to have an adequate defense.

With this in mind, consider the case of Alton Logan. Logan has been in prison for 26 years for a crime he didn’t commit. The true perpetrator, Andrew Wilson, had in fact committed the murder for which Logan is serving time. At the time, Wilson had told his lawyers that he, and not Logan, had committed that murder, but Wilson’s attorneys were bound by the attorney/client privilege and could not come forward with the information.  Logan was wrongfully convicted and only now that Wilson has died in prison has the privilege been released and the truth been able to come out.

It is very difficult to be in the position of defending a system which allowed an innocent man to spend 26 years in prison for a crime he didn’t commit. On the other hand, I’m not really defending it. The burden for falsely convicting Logan rests on the prosecution and Logan’s own lawyers. Since Logan did not actually commit the crime, we should blame the system that falsely convicted him.

The attorney/client privilege is good for the system, even though it occasionally seems to produce unjust results. It also highlights the reasons I have no desire to go into criminal law. The stakes are very high and the toll it takes on the conscience is not one I’m willing to pay.

There is vindication for those of us who have refused to buy into the liberal hype of global warming over the past several years. It used to be that suggesting global warming was a myth was a virtual invitation to ridicule. But my father tells stories of being in high school and being shown videos depicting mock news reports in the year 2000 which would feature segments on where you could go to obtain breathable oxygen. These sorts of government hypes have been around for a while.

So it was realtively big news last November when Weather Channel founder John Coleman called global warming “the greatest scam in history.” Then, just months later, came a report that all four major global temperature tracking stations recorded sufficient temperature drop over 2007 alone to erase the past 100 years of global warming.

Now John Coleman is calling on people to sue the global warming alarmists, including Al Gore, for fraud. This strikes me as a rather interesting idea. Al Gore and the creators of the carbon credit scheme have made big money off of the global warming hysteria and scientific evidence has been around for a long time that the earth is on a regular cycle of minuscule temperature variance to which human activity does not contribute. There might be merit to a suit alleging that Gore and his cohorts knew or should have known that global warming was false, but misrepresented the truth to induce people to buy his sham credits for his own personal gain.

It should be interesting to see if anyone takes Mr. Coleman up on his suggestion.

HT: The Legal Scoop

There is a principle in internet discussion called “Godwin’s Law.” It states: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.” Sometimes, however, it doesn’t even take that long.

The 2nd Appellate Court in Los Angeles recently handed down a decision that required the home-schooled children in at least one family to be enrolled in a government school or a government-approved private school. Of course, the reasons are fairly transparent. The only reason for government to become this involved in education is to have a say in what children are taught. WorldNetDaily points out that the court’s ruling sounds similar to education officials in Germany, whose mandatory government education laws have been on the books since Hitler put them there in 1938 in order to indoctrinate Germany’s children with Nazi ideals.

In this case, the indoctrination taking place isn’t as simple as Nazism; it’s the new liberal fascism. California Senate Bill 777 was passed by the legislature several months ago and it requires government schools to offer only positive portrayals of homosexuality, bisexuality, transsexuality, and such-like. This makes California the most “progressive” state to date, mandating that in government schools, any opinion is acceptable as long as it isn’t biblical Christianity.

Against this backdrop, the court’s reasoning behind the ruling that homeschool children must be given a government-provided or government-regulated education is particularly startling:

[K]eeping the children at home deprived them of situations where (1) they could interact with people outside the family, (2) there are people who could provide help if something is amiss in the children’s lives, and (3) they could develop emotionally in a broader world than the parents’ ‘cloistered’ setting.

Point #1 is clearly a red herring since it is well established that homeschool children generally are more socially mature than their government schooled counterparts. Point #2 is also curious and I would like to see the full opinion to see what the court was talking about. But point #3 really strikes at the heart of the issue.

“[T]hey could develop emotionally in a broader world than the parents’ ‘cloistered’ setting.” The language implies that children should develop emotionally in a setting other than what their parents are providing. Given the backdrop of SB777, the fact that the children’s father said, “I don’t want to put my children in a public school system that teaches ideologies I don’t believe in,” and the fact that the court held that “sincerely held religious beliefs” don’t extend the 1st Amendment to cover the education of children, it’s pretty clear what the court wants the children to learn.

Last week the rumblings began to emerge that there is no crime of “attempted murder” in the state of Mississippi. This was apparently prompted by this story which ran in a TV news spot and was discussed on radio programs as well.

“Attempt” offenses are a common law category and therefore, the state would either have to refuse to recognize the crime on the judicial level, or eliminate it at the legislative level. In Mississippi, neither of these appear to be the case.

The Mississippi Code specifically provides for “attempt” crimes.

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.

Miss. Code Ann. § 97-1-7. Further, a cursory search of the recent state cases turns up numerous cases of attempted murder convictions. Even more apparent is that there is ample evidence in the news. Someone should tell Flora Shearill that there is no attempted murder in Mississippi.

So I don’t know what those police offers were talking about when they told Mr. Register that there is no charge of “attempted murder.” HB 644 makes sense when one considers that the legislature might want to exercise more control over the elements and/or sentences for attempted murder. But clearly, a person can be charged with attempted murder in the state of Mississippi.