Uncomfortable Truth: The State Of Evidence in the George Zimmerman Prosecution

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I have said this from the get go: In the case of State of Florida v. George Zimmerman, under the actual facts of the case from the State of Florida’s own disclosure, as opposed to hype from Benjamin Crump and his public relations team, who have self interest from representation of family members in a civil damages case, not to mention well meaning, even if uninformed, mass and liberal media, there has never been a good factual rebuttal to George Zimmerman’s own account of self defense. You know why? Because there is not any compelling rebuttal within the facts as adduced in the investigation and entered in the record at trial. And the presumption of innocence and burden of proof in the American criminal justice system still mean something.

Yes, I know what I am saying runs counter to the popular meme and what people emotionally feel and want to hear. But everything I have noted from the start of this case has been borne out in the trial evidence and resulting posture as the case heads to closing arguments and to the jury for deliberation.

Did you know that powerful local mayoral office politicians involved themselves, by meeting with only the victim’s family and their attorneys, in an improper ex-parte manner, to go over the most critical evidence during the early stages of the investigation and before said Martin family members’ statements were relied on to file charges? I bet you did not, but that has been the testimony in the trial record.

Did any of you see the young female neighborhood homeowner, Olivia Bertalan, that testified Wednesday as to the crime spree that was ongoing in her and Zimmerman’s neighborhood, Retreat at Twin Lakes, including the home invasion where she and her child were victims of one or more home invaders, and who was effusive in her praise for the concern of the neighborhood watch program and George Zimmerman? Did you know that, thanks in part to the actions of Zimmerman and his wife, the juvenile suspect was caught and sentenced as an adult by this same judge, Debra Nelson, to five years in prison? Probably not is my guess. But that, too, is the evidence.

Did any of you see the other neighbors, of all races, in Retreat at Twin Lakes who testified on Zimmerman’s behalf about the the facts of the case, that Trayvon Martin was the aggressor on top of Zimmerman when the shooting occurred, and the crime afflicting the neighborhood and the need for the neighborhood watch program? My guess is you did not. But that, too, is part of the evidence in the trial record.

Did any of you see the parade of witnesses that laid the foundation for the fact Trayvon Martin was the aggressor in the actual critical physical encounter between him and Zimmerman, and was on top of Zimmerman, and beating Zimmerman, both moments before, and at the time of, the key gun shot? And supported by both the case detectives and one of the foremost expert pathologists, Dr. Vincent di Maio, in the world? My guess is you did not. But that, too, is in the trial record as hard evidence.

Yes, all of those facts are exactly what was testified to in open court. Most of the witnesses were literally the state’s own witnesses, including the two main case detectives, Detective Chris Serino and Detective Doris Singleton. Did you know that the state’s own veteran case detectives, Serino and Singleton, testified they believed George Zimmerman and thought his version of the facts consistent and credible? My guess is you don’t know that. Yet all of that is exactly what the sworn testimony has been in open court.

LadyJusticeScalesDid you know that the state, by and through Angela Corey, relentlessly engaged in Brady violations with regard to discovery and evidence disclosure and that, as a result, discovery and depositions thereon have been ongoing even during the trial, all to the detriment to, and prejudice of, Defendant Zimmerman? My guess is you did not, but that too is part of the record.

In spite of all of the above, the political, and cravenly so, prosecution may still tug on enough emotional and falsely racial heartstrings to wrongfully convict Zimmerman. Almost surely there will be no conviction of the always wrongfully charged 2nd degree murder charge; but the possibly of a flawed compromise verdict to a lesser included charge of manslaughter, battery, or other lesser included offense, is very real. If so, it will, despite all the emotions of this case, be a tragedy of justice.

No matter what you think of George Zimmerman personally, the rule of law should militate in favor of an acquittal. Yes, if the burden of proof in the American criminal justice system is truly “beyond a reasonable doubt”, and if there really exists a common law right to “self defense”, then acquittal is exactly what the verdict should be, and must be.

I have no affinity for George Zimmerman. Frankly he strikes me as a hapless dope. Under no circumstances do I support George Zimmerman, or anybody else, wandering around with concealed carry, locked and loaded, firearms on neighborhood patrol (even though he was not on patrol, but only on his way to Target for family shopping). It is a tragic event waiting to happen and nowhere close to what the founders had in mind with regard to the Second Amendment. But my, and your, beliefs are not the law of the land either in Florida or anywhere else in the United States under District of Columbia v. Heller. And that is the law of the land, both for the Zimmerman case at bar, and and all others elsewhere.

We shall see how willing to follow the law the jury will be, and what their verdict is. But this case is not now, and NEVER has been, about what has been pitched and portrayed in the media. Never. It is not about racial prejudice and profiling (and the DOJ Civil Rights Division so found), and it is not about murder. It is about a tragic and unnecessary death, but one that is not a felony crime, despite all the sturm and drang.

State of Florida v. Zimmerman is a straight up traditional self defense case. It has never been pled as a Stand Your Ground defense case, irrespective of all the press coverage, attention and attribution to Stand Your Ground. It’s never been Stand Your Ground, and certainly is not now that the evidence is all in on the trial record. It is a straight self defense justification defense, one that would be pretty much the same under the law of any state in the union including that which you are in, and that I am in, now (so don’t blame “Florida law”).

There is nothing whatsoever unique in the self defense posture that has been effected in this case. Nothing. And it is, whether it is comfortable or not, a compelling self defense case. Actually, let us be honest: It is not comfortable. Not even close. But no matter how uncomfortable it is to say, Zimmerman needs to walk, because the self defense case is strong. The burden of proof in the instructions to the jury will read that not only is there a general presumption of innocence afforded Zimmerman but, moreover, the state must also prove beyond a reasonable doubt that Zimmerman did NOT act in self defense. Under the facts as adduced in the trial record that ought be, by all rights, an impossible burden for the jury to get past, whether on the pending count of 2nd degree depraved murder or any possible lesser included charge given to the jury.

The facts, the rule of law, and the constitutional burdens of proof compel an acquittal. Uncomfortable to hear; yes, it is. Necessary for an acquittal to occur; also, yes it is.

[UPDATE: Just a couple of quick notes. First off, the jury instructions: Judge Nelson accepted a lesser included for standard voluntary act manslaughter under FLRS 782.02(1). Nelson, thankfully, denied the wild request by the state to give a third degree murder instruction based on child abuse. It was a ridiculous attempt by the state and would have provided fertile ground for an allegation of reversible error had there been a conviction. So, the jury will deliberate only on the 2nd degree murder and the lesser included manslaughter charges, which is how it should be.

Prosecutor gave a long closing argument this afternoon. Parts of it were pretty good, parts fairly diffuse and rambling. Overall competent though, and he will still have a rebuttal after the defense closing tomorrow by Mark O’Mara.

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Happy Birthday, You Rebels!

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It’s that day again where we contemplate the great project a bunch of rebels set out on 237 years ago.

In recent years, I’ve focused on what those rebels said about the judicial abuses of King George — language about denying some of Trial by Jury.

But this year, particularly given the coup in Egypt, I want to contemplate this passage.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

We’re far from the militarized state that existed when the rebels threw off King George. Obama’s Administration is, reportedly, currently investigating two retired Generals for telling secrets the Administration didn’t want told. Most of the country barely contacts the 1% that fights our wars for us.

All that said, we are experiencing a sequester that has had the effect of cutting off funding from our most needy, while not affecting the funding of our military contractors.

We are learning that our military — the NSA — is collecting all of our calls and keeping the emails we try to encrypt.

Before we welcome immigrants, we’re going to make another attempt to wall off our southern border — another attempt for the profiteers to get wealthy while the poor suffer.

Mostly, though, I’m thinking of our foreign policy.

One key strategy of the Obama Administration is to pursue secret trade deals that subvert our sovereignty to the wishes of corporations (and to cut off other countries if they try to do something, offer asylum, that is well established under international law).

Then there’s our use of the military in relations with others. Some months ago, a top General argued the way to restore our relations with Pakistan is to forge even closer ties with its military; already the military has succeeded in vetoing civilian efforts to rein in drone strikes in that country. Similarly, while Egypt has been through two governments in the last several years, we continue to fund their military, and continue to expect and encourage it to broker power.

With Edward Snowden, we appear to have placed demands on NATO countries France, Italy, Spain, and Portugal to deny Evo Morales overflight. But Austria, not a NATO country, offered Morales a place to land. Did we secretly declare Snowden mutual defense threat against NATO, because he revealed how much the government spies on us all?

We don’t have soldiers sleeping in our homes. We’re a long way from that kind of militarization. But we are, increasingly, becoming a military empire at the expense of the Life, Liberty and the pursuit of Happiness of American liberty and — even more so — the liberty of people around the globe.

Happy Birthday, you rebels.

Update: Meanwhile, the NSA wants you to know it’s okay if you go join a RestoreTheFourth protest today.

The Fourth of July reminds us as Americans of the freedoms and rights all citizens of our country are guaranteed by our Constitution. Among those is freedom of speech, often exercised in protests of various kinds. NSA does not object to any lawful, peaceful protest. NSA and its employees work diligently and lawfully every day, around the clock, to protect the nation and its people.

That’s big of the NSA.

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Federal Judge Blasts Joe Arpaio’s Racial Profiling and Detention Policy

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In a scathing decision just entered by Judge Murray Snow in the District Court for the District of Arizona, the court has hammered the racial profiling and detention policies of Maricopa County Sheriff Joe Arpaio. The case is Melendres v. Arpaio, and the Arizona Republic described the decision thusly:

The Maricopa County Sheriff’s Office has engaged in racial profiling and must not use Hispanic ancestry as a factor when making law-enforcement decisions, a federal judge has ruled.

U.S. District Judge Murray Snow issued the ruling Friday, more than eight months after a seven-day trial on the subject concluded. The trial examined longstanding allegations that Sheriff Joe Arpaio’s emphasis on immigration enforcement led deputies to target Latino drivers based on their race, and that by doing so, they violated the constitutional rights of Maricopa County residents and the sheriff’s own policies requiring constitutional policing.
….
The class of Hispanic citizens that brought the racial-profiling lawsuit against the Sheriff’s Office never sought monetary damages. Instead, the group asked for the court to issue injunctions barring Arpaio’s office from discriminatory policing.

Snow obliged — and indicated more remedies could be ordered in the future.

Here is a link to the full decision.

The decision is long at 142 pages, but it is beautiful and contains specific findings of fact and conclusions of law that will make it hard to reverse on appeal to the 9th Circuit. There is no question but that Arpaio will appeal, but he will not be doing so from a good position in light of this decision.

Here are some quick highlights:

As is set forth below, in light of ICE’s cancellation of the MCSO’s 287(g) authority, the MCSO has no authority to detain people based only on reasonable suspicion, or probable cause, without more, that such persons are in this country without authorization.
…
Thus, the MCSO’s LEAR policy that requires a deputy (1) to detain persons she or he believes only to be in the country without authorization, (2) to contact MCSO supervisors, and then (3) to await contact with ICE pending a determination how to proceed, results in an unreasonable seizure under the Fourth Amendment to the Constitution.

And

Thus, to the extent it uses race as a factor in arriving at reasonable suspicion or forming probable cause to stop or investigate persons of Latino ancestry for being in the country without authorization, it violates the Fourth Amendment. In addition, it violates the Plaintiff class’s right to equal protection under the Fourteenth Amendment to the Constitution and Title VI of the Civil Rights Act of 1964.

And

Finally, the knowledge that a person is in the country without authorization does not, without more, provide sufficient reasonable suspicion that a person has violated Arizona criminal laws relating to immigration, such as the Arizona Human Smuggling Act, to justify a Terry stop for purposes of investigative detention. To the extent the MCSO is authorized to investigate violations of the Arizona Employer Sanctions law, that law does not provide criminal sanctions against either employers or employees. A statute that provides only civil sanctions is not a sufficient basis on which the MCSO can arrest or conduct Terry stops of either employers or employees.

There is a LOT of prime substance to this decision, and it all needed to be said. The fact that it comes with specific and articulated findings of fact and conclusions of law, after a trial, makes all the difference in the world as to strength. It is a treat for the Memorial Day weekend.

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Some Canadian Bacon Is More Equal than Some Carnitas

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The funny thing about this Josh Marshall column against (other peoples’) dual citizenship is that he didn’t need to go to the issue of dual citizenship at all. He wrote it in response to a proposal to let NYC non-citizens vote in municipal elections.

I’m curious to hear what you think about the New York City Council proposal to let non-citizens vote in municipal elections. To me, it’s definitely a bad idea.

But as part of his effort to explain his concept of “thick citizenship” he goes there: condemning the legal status of dual citizenship for Latino immigrants but not, apparently, for Canadian (and Israeli) ones.

If Latin American immigrants maintain citizenship in the countries of their birth, doesn’t that undermine the claim to full equality here?

[snip]

Now, as a practical matter I know there are people who carry dual citizenship because of very practical reasons like child custody and basic convenience for bi-national families. My wife is probably arguably a dual citizen simply because there’s no obvious way to renounce her original citizenship in the country of her birth. So I don’t see people who have dual US-Canadian citizenship as some great threat to the commonwealth or something or something that we actively need to eliminate. It’s basically a non-problem. But I think it would be a bad thing if it became more pervasive – which is something that I think is possible as the free flow of peoples becomes easier and more common.

As a reminder, I’m a dual citizen, having gotten Irish citizenship before they made doing so much more onerous some years ago, because of the possibility that at some point my Irish spouse and I might move somewhere in the EU (though not necessarily Ireland — funny how that works).

Perhaps it offends the Irish that an American, seven-eighths of whose ancestors were Irish, whose Irish forebears left Ireland before some of my spouse’s arrived there, now has legal paperwork that permits her to live and work in Ireland (and the rest of the EU), not to mention go through either line at customs in Dublin. They’ve never said that, though. They do, however, complain about the East Europeans who came to Ireland as cheap workers during the Tiger era and have made it their thick citizenship home. Curiously, they sometimes tell my cousin — who lives and works for an “thick citizenship” NGO in Ireland but doesn’t have citizenship — she has “returned,” I guess because Irish-Americans never stop being Irish.

There’s a difference, it seems, between nationality and citizenship.

Now, not only have I not ever voted in an Irish election (they don’t allow absentee voting, but boy would I if I could), neither has my spouse, in part because he has lived in Japan or the US almost from the time he could vote. That’s the way pre-Celtic Tiger Ireland was (and is again, increasingly). Mr EW has, however, engaged in a number of activities that would fall under Marshall’s “thick citizenship” category here in the US (with about five exceptions, though, only if I dragged him along kicking and screaming).

So my response to the substance of Marshall’s post is this: I’m agnostic on non-citizen voting at the local level (though I think it beats the hell out of what we have here in MI, where inner city citizens are being stripped of their municipal franchise left and right, and I think it’s a way to encourage thick citizenship). I think thick citizenship is a good thing for everyone where ever they live — it’s a fundamental part of building community, and the more we integrate all contributors of our local society into its thick citizenship, the more we’ll develop both the local and global empathy we need to get along in this world. And I think thick citizenship and legal citizenship are entirely different things (as demonstrated by both my cousin and my spouse, engaging in thick citizenship in countries where they’re not citizens). It’d be nice if the former had some tie to the latter, but as it is, we really only demand minimal competence in citizenship from immigrants, not from kids raised and schooled here.

Legal citizenship may be how we draw boundaries around the legal entrees to thick citizenship (though we often exclude felons even though they’re citizens), but it is also at least as much about how one legally negotiates daily life, particularly economic life, which is one reason so many people retain dual citizenship.

But all that’s what I think about the larger points in Marshall’s post.

It’s the underlying logic, though, of suggesting that there’s no problem with Canadians retaining dual citizenship but there is for “Latin American” immigrants.

Some pigs are more equal than other pigs.

Does Marshall include Mexico in that category which, like Canada, is part of NAFTA, and provides far more people who serve as America’s cheap labor but also (because of our immigration preferences) tends to create lifestyles that require splitting families across borders? Does it foster “thick citizenship” if a farm worker and union member who lives most of the year in California has to choose between engaging in legal citizenship in the country he lives most of the time or the country where his wife and kids live (and he sends remittances)? Are our national interests so divorced from those of Mexico (but not Canada!?!) that we need to maintain strict unitary citizenship only for those from the south, in spite of how closely tied our countries have become. Why? Is there some common “white Anglo” culture, one which hasn’t been enriched by the Latino heritage of much of the US?

A poor Latino immigrant — or even a poor white working class American — gains power against rich (often white) people through a combination of thick citizenship and legal citizenship rights. To suggest just Latinos should have additional barriers to gain those legal rights out of some sense they’re more likely to have divided loyalties than Canadians only serves to strengthen the rich white people by comparison.

More importantly, though, the US is so powerful, has such an overriding influence on the daily lives of poor people all over the world, and our daily life has become so globalized, it seems we’d do well to expand the fluidity of citizenship, not curtail it. If we affluent white Americans felt more common citizenship with the Mexicans who pick our food or the Bangladeshis who make our clothing, we might be a lot more embarrassed about the ways we benefit from their exploitation.

If we don’t share “thick citizenship” with the people whose lives we affect so negatively, then it’s not doing the work it needs to.

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DOMA’s Day At The Supremes

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RainbowNiagraFallsUPDATE: HERE IS THE AUDIO OF TODAY’S ARGUMENT

HERE IS THE TRANSCRIPT OF TODAY’S ARGUMENT

I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.

The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.

As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.

Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.

Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).

Okay, that is it for now, we shall see how this goes!

Live Updates:

10:39 am It appears oral arguments are underway after two decisions in other cases were announced.

10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.

11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.

11:05 am @reuters wire: 7:56:34 AM RTRS – U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW

11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:20 am Is anybody reading this, or is this a waste?

11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.

11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.

11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.

11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.

11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

12:07 pm The argument at the Court is well into the merits portion of the case now

12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.

12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

12:19 pm @reuters wire: U.S. SUPREME COURT CONCLUDES ORAL ARGUMENTS ON FEDERAL LAW RESTRICTING SAME-SEX BENEFITS

12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”

Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.

That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!

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The Prop 8 Oral Arguments Before the Supreme Court

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Picture-1A momentous morning in the Supreme Court. All the work, analysis, speculation, briefing and lobbying culminated in an oral argument in Hollingsworth v. Perry lasting nearly an hour and a half – half an hour over the scheduled time. There are a lot of reports and opinions floating around about what transpired.

Here is Tom Goldstein

Here is Reuters led by Lawrence Hurley and David Ingram

Here is Lyle Denniston of SCOTUSBlog

Here is USA Today

Here is Huffington Post’s Mike Sacks with a video report

Here is Ryan Reilly and Mike Sacks with a written report at HuffPost

Suffice it to say, we do not know a heck of a lot after oral arguments than we did right before them. The full range of decision is on the table. However, there were certainly some hints given. Scalia and Alito are very hostile, and Thomas is almost certainly with them in that regard although he once again stood mute. Ginsburg, Kagan and Sotomayor seemed receptive to the Ted Olson’s arguments. Breyer oddly quiet and hard to read. As is so often the case, that left Anthony Kennedy in effective control of the balance.

If Kennedy’s tenor at argument is any guide, and it isn’t necessarily, he is unlikely to sign on to a broad ruling. In fact he may be struggling with standing, but that is very hard to read. Several commenters I have seen interpreted Kennedy’s questions as having a real problem with standing and signaling a possibility of punting the case on that basis. From what I have read so far, I wouldn’t say that…and neither does Adam Serwer, who was present at argument.

So, in short, I would summarize thusly: Standing is a bigger issue than I had hoped, and there is more resistance to a broad ruling than I had hoped. But the game is still on. Remember when Jeff Toobin’s train wreck/plane wreck take after the ACA oral arguments; you just don’t know and cannot tell.

I will likely be back later after analysis of the pertinent material. For now, let me leave you with that material and media so you too can hear and see the groundbreaking day in the Supreme Court:

Here is the full transcript of the oral arguments

Here is the audio of the proceedings

Enjoy, and I look forward to discussing this! And, again, there will be updates to this post throughout the day, so keep checking for them.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

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The Case Against Marriage Equality Backlash

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LadyJusticeScalesOne of the relentless memes that keeps cropping up in the marriage equality battle is that, were the Supreme Court to grant full broad based and constitutionally protected marriage equality in the Hollingsworth v. Perry Prop 8 case, there would be a destructive backlash consuming the country on the issue.

A good example of the argument was propounded by Professor Eric Segall at the ACSBlog in a piece entitled “Same-Sex Marriage, Political Backlash and the Case for Going Slow”:

There may be a better way. The Court could strike down DOMA under heightened scrutiny making it clear that government classifications based on sexual orientation receive heightened scrutiny. The Court could dismiss the Proposition 8 case on standing grounds (there are substantial standing arguments which the Court asked the parties to brief). This combination would leave all state laws (except perhaps California’s) intact but subject to likely successful challenges. Obviously, this would be a slower and more expensive route to marriage equality, but it might make the right more secure over time while decreasing the chances of serious backlash.

I know that it is easy for a straight male like me to suggest that the Court should refrain from quickly and forcefully resolving the same sex marriage issue on a national basis. But issues that some gays care deeply about are not limited to marriage equality, just like feminists face many challenges other than abortion such as equal pay, equality in the military, and glass ceiling barriers. Where gender equality would be without Roe is unknowable but even Justice Ruth Bader Ginsburg has observed that the right to choose today might be more secure if the Court hadn’t decided it “in one fell swoop.” I don’t know what will happen if the Court announces a national rule on same-sex marriage but history strongly suggests that a more incremental approach might better serve the long term interests of people who identify themselves as liberals and progressives, including gays and lesbians.

I like and respect Eric quite a lot, but I cannot agree with him, nor other advocates of this position (for further discussion of the “Roe backlash” theory, see Adam Liptak in the New York Times). I have long strongly advocated for a full, broad based, ruling for equality for all, in all states, most recently here. But the issue of “backlash” has not previously been specifically addressed in said discussions that I recall.

Fortunately, there are already superb voices who have addressed this issue. The first is from Harvard Law Professor Michael Klarman in the LA Times:

What sort of political backlash might such a decision ignite?
…
Constitutionalizing gay marriage would have no analogous impact on the lives of opponents. Expanding marriage to include same-sex couples may alter the institution’s meaning for religious conservatives who believe that God created marriage to propagate the species. But that effect is abstract and
Read more →

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A Path To Civil Rights History For the Supreme Court, Obama and Verrilli

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Supreme Court CoolJust about a month ago, in urging the Obama Administration to file a brief in favor of marriage equality in the Hollingsworth v. Perry Prop 8 case before the Supreme Court, I described the stakes:

And here we are on the cusp on the next defining moment in the quest for equality for all in the US. It is not for origin, not for skin color, not for gender, but for something every bit as root fundamental, sexual identity and preference. Marriage equality, yes, but more than that, equality for all as human beings before the law and governmental function.

For all the talk of the DOMA cases, the real linchpin for the last measure of equality remains the broad mandate achievable only through Hollingsworth v. Perry, the Proposition 8 case.

It was true then, it is true now. To the everlasting credit of of President Obama, Solicitor General Verrilli and the Administration, they did indeed file a brief in support. It was a surprisingly strong brief with a clarion call for full equality based upon heightened scrutiny; yet is was conflicted with a final ask only for a restricted ruling limited in application to either just California or, at most, a handful of somewhat similarly situated states. In short, the ask in the Administration’s brief was not for equality for all, in all the states; just in some.

On the eve of one one of the seminal moments of Supreme Court history – it is easily arguable this is far more of a defining moment than the ACA Healthcare scuffle was – it is again incumbent on the Administration to give the justices the headroom to make a broad decision granting equality for all.

Even in the short time since the Obama Administration filed their brief, between February 28 and now, the mounting tide of public opinion and desire for full equality has grown substantially in multiple ways. Colorado, a state where the thought was once beyond contentious, passed full civil union equality and Governor Hickenlooper signed it into law. And a new comprehensive Washington Post/ABC News public poll has found that a full 58% of Americans now support the legality of gay nuptials, and a whopping 81% of adults between the ages of 18 and 29 so support.

The writing is on the wall, and the trend overwhelming. And it simply does not make sense for the Obama Administration to buck this tidal wave and argue only for equality in a handful of states, with equality for some, but far from for all. Barack Obama and Donald Verrilli laid every bit the foundation needed to argue for broad based full equality – in all states – in their brief.

It is time for Mr. Obama and Mr. Verrilli to step up and forcefully tell the Supreme Court that full equality is the right way to rule. The Court granted Solicitor General Verrilli time to express the Administration’s position in the oral argument Tuesday; he should use it in the name and cause of full broad based equality. It is a time for leadership; this is a moment for Mr. Obama and his attorney to display it.

By the same token, it is also time for the Supreme Court to do the same. So often it has been argued the “Court should not get out in front of popular opinion”. Bollocks, the Court should refuse to put themselves behind public opinion, and an ever strengthening one at that, by shamefully ducking the perfect opportunity to stand for that which the Constitution purports to stand, equal protection for all.

There are a myriad of legal arguments and discussions, and just about every commenter and expert in the field has been offering them up over the last week. I will leave that to another day, after the court has heard the oral arguments, we have our first inclination of what the justices are focused on, and the case is under advisement for decision.

For now, here are a couple of warms ups for Tuesday’s oral argument in Hollingsworth v. Perry/Prop 8 and Wednesday’s oral argument in United States v. Windsor/DOMA. First a nice little video “Viewer’s Guide to Gay Marriage Oral Arguments” with Supreme Court barrister extraordinaire, and SCOTUSBlog founder, Tom Goldstein. Here is a handy flow chart of all the different possibilities, and the why for each, of how the court may rule on both cases. It is really pretty neat and useful tool.

The briefing is long done now and the Justices understand the issues. But if the ACA/Healthcare cases taught us anything, it is that Justice Roberts is concerned about the legacy and esteem of the court. And Justice Kennedy has already shown how committed he is to fairness in social justice issues and willing to even go out on limbs ahead of controversial public opinion with his written opinions.

At this point, the most effective leverage is not repeated discussion of the minutiae of law, but rather the demonstration of the righteousness of full equality. History will prove fools of those who sanction continued bigotry against marital equality, and anything less than a broad based heightened scrutiny finding, for equality for all people, in all states, is a continuation of such unacceptable bigotry.

UPDATE: Professor Adam Winkler of UCLA has a piece out today that embodies my point in the post perfectly. Discussing the disastrous and ugly 1986 decision of the Supreme Court in Bowers v. Hardwick to uphold sodomy laws when times and opinion had already changed, and the profound regret felt by Anthony Kennedy’s predecessor, Lewis Powell, Professor Winkler writes:

Kennedy is clearly a justice who considers how his legacy will be shaped by his votes. In 1992, when the Supreme Court was asked to overturn Roe in a case called Planned Parenthood v. Casey, Justice Kennedy originally sided with the conservatives to reverse the controversial privacy decision. Like Justice Powell in Bowers, Justice Kennedy then changed his vote. He went to see Justice Harry Blackmun, the author of Roe, and explained that he was concerned about how history would judge Kennedy’s decision to end constitutional protections for women’s right to choose.

Like many people, Justice Kennedy may believe that the public tide against marriage discrimination is growing and that gay marriage is inevitable. History is not likely to be kind to those justices who vote to continue relegating LGBT people to second-class citizenship. As the swing justice ponders how to rule in the gay-marriage cases, Justice Powell’s well-known regret over Bowers, and the widespread recognition that Bowers was wrongly decided, will almost certainly weigh on his mind.

Adam’s article is worth a full read. And I agree with it completely.

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Identity Problem: Blind Journalism, Uninformed Technology, and Cory Booker

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This is an op-ed; opinion herein is mine. ~Rayne

A tweet yesterday by technology-futurism pundit and sci-fi writer Bruce Sterling hinted at the problem of technology industry and journalism, with regard to politics:

Tweet_BruceS_CoryBookerNYT_23MAR2013x

The tweet was spawned by a profile in The New York Times of Newark NJ’s mayor, Cory Booker, who has used social media regularly as a community outreach tool. In addition to bestowing the inapt label “A Politician From the Future,” a critical problem in this article is the labeling of Cory Booker as appealing to “the Googly-Facebookish wing of the [Democratic] party.”

Except that Cory Booker is extremely proficient at using microblog platform Twitter, and Twitter has a significantly different demographic profile with regard to race and age. Further, Twitter’s 140-character post limitation has been much easier to use on mobile devices, fitting a mobile business model long before either Google or Facebook.

It’s not clear what Sterling thought about the NYT’s article, though in a reply he expanded and lumped together the “Twittery-Googly-Facebook” crowd, suggesting he’s missed both NYT’s error while not understanding the demographics and politics at play.

Both Sterling and NYT fail to take seriously Booker’s actions themselves; they look at the medium, not the message, which is that Booker’s deeds are like that of an old-school Democrat, the kind we used to have before the corporatist Democratic Leadership Committee co-opted the Democratic Party to serve somewhat more liberal overlords.

Booker’s use of Twitter was carefully noted by TIME back in 2010, after Booker had taken personal, hands-on action to help constituents during a snowstorm. It wasn’t a collection of photo ops for a campaign (as another mayor-candidate demonstrated in another city), but actual response to situations where elbow grease and a shovel were required.

What both NYT missed, besides categorizing Booker as belonging to the “Googly-Facebook” portion of the Democratic Party:

— Booker’s efforts with regard to his one-on-one interactions with constituents do not compare with a considerable portion of the party to which he belongs;

— His actions are highly transparent, his words sync with his deeds right there in the public forum of Twitter;

— The tool he uses for outreach more closely matches his constituents’ demographics, not that of the “Googly-Facebook” crowd.

— Booker uses “big data” to make and justify decisions; “big data” is merely a contemporary expression of polling data used in the near-term past and present.

It’s not clear that Sterling notes these key points, as focused as he was on the social media component and NYT’s representation of Booker as a politician from the future. Read more →

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Identity Problem: The Delamination of the American Left

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photo: 1960s antiwar poster, by cliff1066 via Flickr

photo: 1960s antiwar poster, by cliff1066 via Flickr

This is an op-ed; opinion herein is mine. ~Rayne

Once upon a time, before the rise of machines — um, before corporations took over and subsumed the Democratic Party, there were people who espoused an ideology of caring for their fellow man. Granted, some of the richest among them ended up elected to office, but they moved Americans to do the right things.

“And so, my fellow Americans: ask not what your country can do for you — ask what you can do for your country. My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man. …”

[source]

This was a rising-tide-lifting-all-boats kind of Democratic Party, increasingly pro-civil rights and antiwar through the 1960s. The ideology was shaped in no small part by a stronger, more organized political left, manifest in student activism of the period a la Students for a Democratic Society (SDS). SDS in particular espoused direct action and participatory democracy, a hands-on approach to society.

Now entire generations — perhaps as much as three generations — no longer connect the liberal activism of the 1960s with the Democratic Party. Too much time has passed along with negative memes and actions actively impelled by the right linking the Vietnam War to Democratic figureheads like presidents John F. Kennedy and Lyndon Johnson, while undermining the work of other Democratic liberal champions like senators Ted Kennedy and Barbara Jordan. Ask any 20-something if they know who either Ted or Barbara were; you’ll get a blank stare most of the time.

They will, however, remember the Big Dog, Bill Clinton, who was truly Republican-Lite. He catered to business while talking a great game, ultimately undermining American democracy. As an example, his efforts to deregulate media eventually lead to a corporatist mono-culture in broadcast media. He also failed to take any real action to support unions and build the Democratic Party grassroots. He’s thought of kindly because his approach to the deficit, a more restrained approach to militarism, in tandem with the rise of the internet, led to a golden dot-com age pre-dot-com bomb when the standard of living for most Americans was still rising. He and his heir-apparent, current President Barack Obama, are now the face of the Democratic Party for a majority of Americans.

Though its original standard bearers have aged and the world has changed, the fundamental liberal ideology that coalesced in the 1960s still exists; it was a key driver behind the rise of presidential candidate Howard Dean in the 2004 election season. The left wanted direct action and participatory democracy combined with pragmatic achievement of results; barriers to their efforts had decreased because the internet was a cheap and fast facilitator. Obama’s 2008 win is owed in no small part to the dispersion of strategy and tactics embracing direct action and participatory democracy. Read more →

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