The SCOTUS Healthcare Decision Cometh

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[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!

Did Obama Screw Himself on SB1070 with Secure Communities?

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As the press is reporting, SCOTUS largely overturned AZ’s “Papers Please” law. It left just one part–but the most important part–in place for further court review: the part that required cops to check the status of people they stop and require them to check the status of people they arrest.

Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records.

In deciding not to overturn this part of the law, Anthony Kennedy’s opinion noted that Congress already encourages local officials to consult on immigration status.

Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training

needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or immigration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens).

So the ruling says we will have to wait to see how AZ courts interpret the breadth of the law before finding it conflicts with US law by permitting, for example, the detention of suspected aliens until a status determination can be completed.

Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immigration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009); Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C, supra (concluding that Arizona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress doesnot allow state or local officers to adopt this enforcement mechanism. But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.

[snip]

There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.

SCOTUS has basically permitted this part of the law to remain on the books until AZ is shown to be overstepping Federal jurisdiction on detention decisions.

But while that happens, the Obama Administration will be (and has been) expanding a mandatory status check program at the federal level, Secure Communities. Just since this litigation began, for example, the Administration has made it mandatory for local law enforcement entities to participate in Secure Communities.

And while that only pertains to those booked into jail–so not the jaywalking Latino used in Kennedy’s opinion–it does make it easier for AZ to justify part of the program. And it makes the process of checking status more routine by mandate.

Ultimately, what happens with this part of the law may come down to the fight between DOJ and Joe Arpaio as much as anything else. He’s precisely the kind of person who will abuse the provisions, and this will give DOJ an additional lever to respond if and when he does and is upheld by state courts.

But all that may lead to some Latinos spending a lot of time in jail before then.

It’s Not a Pee Pee or a Wee Wee, It’s a Vagina

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I gotta say, getting our asses handed to us has inspired progressives to put the party back in political party. And the performance of Vagina Monologues just yards from where State Rep Lisa Brown, 3 days ago, was silenced for saying vagina one day earlier was just such an event.

There were great signs, great T-Shirts, and more great signs. Lots of canine vaginas joined us in sisterhood. As the sun began to set and we settled in to listen to the actresses recite the monologues, it began to feel like any outdoor evening performance–only every tenth person was in pink and lots of great energy.

And over and over, the entire crowd yelled out the word that, Friday, got State Rep Lisa Brown silenced: vagina.

Best of all was the spontaneity of it. Eve Ensler explained that the idea to stage the Monologues was offered up to her by an activist (I think her name was Rachel) in a tweet at 5AM. The next day, Ensler called State Senator Rebekah Warren to see if she could put it together by today, Ensler’s day off. Warren, who was at an out-of-state conference all weekend, nevertheless pulled it together. And Eve and Lisa and Rebekah and Barb Byrum (silenced for saying vasectomy) and State Rep Rashida Tlaib (who advocated we use the Lysistrata option) and Senate Minority Leader Gretchen Whitmer and a bunch of very talented actresses (h/t Anne Savage) joined together to bring thousands of women and men together to embrace that word so frightening to those trying to legislate women’s autonomy away.

Vagina.

Verboten: Vagina and Vasectomy

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In spite of the fact that MI’s economy–which had been turning around–is now turning back down again, the Republicans who run Lansing are busy enacting new restrictions on abortion and contraception. Busy with that, and busy silencing two state Reps who had the audacity to say “vagina” and “vasectomy” on the House floor.

Representatives Lisa Brown and Barb Byrum, both Democrats, were barred from participating in debates Thursday because they were “disrupting decorum” during debate on Wednesday over three bills that would put restrictions on abortions, said Ari Adler, spokesman for House Speaker Jase Bolger.

The cause of Brown’s gag order was this statement, which she made during a floor speech opposing a bill that would prohibit abortions after 20 weeks: “I’m flattered that you’re all so interested in my vagina, but no means no.”

Byrum’s speaking privileges were revoked after the state congresswoman shouted multiple times at the legislature’s chairman that she should be given a chance to speak on her amendment, a chance she was not given during debate Wednesday.

Byrum’s amendment, which ABC apparently doesn’t want to talk about either, was to require men to show medical necessity before getting a vasectomy.

Byrum caused a stir when she marched through the House gallery Wednesday protesting that she hadn’t been allowed to speak on her amendment to the anti-abortion bill that would have required a man to have proof of a medical emergency before he could have a vasectomy.

“It’s my impression that I’m being banned from speaking as a result of my use of the term vasectomy — a medical procedure,” Byrum told The Huffington Post.

Now that the national press has wondered what kind of neanderthals ban the use of vagina (they’re afraid to talk about that other V-word), Republicans have responded by making their “issues” clear.

“They behaved in a way that disrupted the decorum of the House,” [House Majority Leader’s spokesperson Ari] Adler said. “For Brown, it was not the words she used, but the way she used them that resulted in her being gaveled down.” In Byrum’s case, Adler said, “I hate to put it this way, but she essentially had a temper tantrum on the House floor.”

When women try to ask men to be held to the same terms as women, you see, it amounts to a temper tantrum.

Prop 8 Appeal Takes A Step Forward; But Not The Big One It Should Have

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Liberty & Justice by Mirko Ilic

Those of us watching and covering the Proposition 8 case, formally known as Perry v. Brown, got a cryptic notification from the court yesterday afternoon. The notice read:

This is to inform you that a filing is expected on Tuesday, June 5, 2012, at approximately 10 a.m., in Perry v. Brown, case 11-16577, also know as the Proposition 8 case. The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions. We are advised that this is not a large document. If you have difficulty downloading the filing, please contact us by email.

The fact the court said the document would appear in their “opinions” section seemed prophetic. It was. The opinion was just released and my prediction on it was right, it did signal a final opinion and a declination of en banc consideration.

Here is the order. The key takeaway language:

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

Notable is the sniping dissent lodged by Judges O’Scannlain, Bybee and Bea, and the broadside shot right back by Steve Reinhardt and Mike Hawkins, who were the accused when O’Scannlain said:

Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012).

Interesting is the sniping back and forth, but ultimately of no moment. The ruling today is important, however, because the ultimate destination for the Prop 8 Perry case is now straight to the Supreme Court. As I explained when the original panel decision was issued, authored by Steve Reinhardt, it was different than expected:

It is a narrower and shallower victory than I had hoped and predicted though.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and social recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those opposite-sex couples. the Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 US 620, 633 (1996).

By basing on Romer instead of the full constitutional protections of due process and equal protection, the court has likely increased the odds the decision stands up to further appeal, but has done a disservice to those seeking true equality, both as to marriage and otherwise, for gays and lesbians. In short, it does not move the ball nearly as much as it should have, and was hoped for. The decision of the 9th does not go nearly as far as Vaughn Walker did, and wastes much of the meticulous taking of evidence, making of findings of facts and law, and crafting of his decision. It was hand tailored to go MUCH further, and that now appears at least significantly squandered.

That analysis of the panel decision in Perry still stands. The bigger problem is that many experts on this issue have been putting their eggs in the basket of the DOMA litigations. And the problem with that is that the biggest of the DOMA cases just got decided in the 1st Circuit last week, and it too is grounded on Romer and is painfully narrow and depressing as to hope for full extension of protected status to sexual orientation by individuals.

As Reuters explains:

“The federalism aspect of the decision makes it a stronger case to bring some conservatives along,” said Paul Smith, a lawyer for the same-sex couples.

The Supreme Court has become increasingly concerned with states’ rights over the past 10 years, striking down numerous federal laws that intrude on state authority, said New York Law School professor Arthur Leonard. The conservative justices have tended to defend traditional areas of state control. Justice Antonin Scalia, for example, criticized the majority decision in Romer for creating a new level of equal protection for gays and lesbians, but he based his argument on a defense of states’ rights.

The DOMA litigation is clearly presented as a battle between federal and state powers. The plaintiffs only challenged the law’s central provision that denies federal economic benefits to married same-sex couples. They left alone the part of the law that says a state doesn’t have to recognize same-sex marriages performed in other states.

While the focus on states’ rights could lead the Supreme Court to strike down DOMA, it could also make it more difficult for gay rights advocates to achieve their ultimate goal: making same-sex marriage a federal constitutional right.

The focus on federalism could also undercut arguments against state laws like Proposition 8 that ban same-sex marriage. Schowengerdt, the lawyer from the Alliance Defense Fund who is currently defending gay marriage bans in Hawaii and Oklahoma, said he plans to cite the recent Massachusetts ruling to support his position that the definition of marriage should be left up to the states.

He pointed out that 31 states had passed constitutional amendments defining marriage as between a man and a woman. “At the end of the day, federalism helps proponents of traditional marriage,” he said.

By having both Perry and the 1st Circuit DOMA rely on the Romer paradigm, the main thrust of LGBT litigation is now set up under a states rights analysis as opposed to full equal protection status across the board and uniformly nationwide.

While many of the experts, pundits and lay people closely watching these cases may be cheering today, it seems a tad hollow. This is not the posture that Vaughn Walker worked so hard to put in place, the posture that the affected citizens deserve.

[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.]

Dallas Trash Talk

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That’s right mofo’s, we gots us a full on food fight here on the Emptywheel blog.

What’s it all about? Well, when you get down to it, it is ALL about Dallas.

No, I am not talking about J.R. Ewing (and who shot him – psssst it was Bing Crosby’s daughter), Bobby Ewing, Sue Ellen, Pamela, Christopher or John Ross. No, I am not talking about that Dallas. Although, I would like to note, the New Dallas premiers on TNT channel on June 13th and, all things considered, it looks very appropriately oily and greasy just like the original Dallas. And, I have to confess, I loved the original Dallas. In fact, my roommates and I had the most awesome tux & tails “Who Shot JR” party you can imagine when I was in graduate school in Boulder. It was a certified event in the Boulder social scene of the day. The trailer for the New Dallas is to the right. Get used to it, there is likely to be more of this!

But that is NOT the Dallas I am talking about here today. Oh no. No, the Dallas I am talking about here and today is Dallas Escobedo. Most awesome champion pitcher for the Arizona State University Lady Sun Devils.

That would be the Defending NCAA Champion ASU Sun Devils. Thank you very much.

And, as luck would have it, Dallas and the Devils are back in the hunt for the 2012 College Softball World Series. Tonight they play their first 2012 Super Regional game against Louisiana Lafayette at – oh wait – that would at Alberta B. Farrington Stadium; conveniently the home of the Lady Sun Devils!

So what about the Emptywheel blog food fight?? Oh, well, you see we now have this SEC interloper guy, Jim White. Honestly, it was distressing enough that I had to share time with an itinerant Big-10, Big-10.2, Big-10.2.5 – hell whatever – woman, but now the Gators are representing?? Well, I just don’t know anymore.

If you are from Alabama, do NOT troll this post! You see, the Crimson Tide (another criminal SEC team!) is, as we speak, playing the Michigan Wolverweenies in another Super-Regional. This is REALLY painful for me. Go Big Blue!

This post will keep reappearing on top of things so long as the Real Dallas, Escobedo edition, and the Lady Devils keep winning. ASU Baybeeee!

Mark Brewer and Steve Pestka: Taking the “Democratic” Out of the Democratic Party

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As MLive reports, the state Chair of MI’s Democratic Party, Mark Brewer, has asked the Democratic primary candidates in my congressional district to take the democracy out of the primary.

He doesn’t call it that, mind you. His DoubleSpeak for asking Steve Pestka and Trevor Thomas not to talk about each other’s record is “Clean and Fair Campaign Agreement.”

I write today to ask you both to put [commitments to focus on Justin Amash] in writing by signing and abiding by the enclosed “Clean and Fair Democratic Primary Campaign Agreement.”

One of the clauses in the proposed agreement is:

To avoid attacks on each other’s records and positions by any means, including the media, campaign literature, advertisements, phone calls, mailings, e-mail and speaking engagements. [my emphasis]

Apparently, the guy running MI’s Democratic Party thinks it’s “fair” to voters to gag all discussion of candidates’ past records. And Steve Pestka, who said he will sign this gag order, agrees!

A couple of notes about this proposed gag order.

This is yet another attempt (at least the fifth I have heard or witnessed over the course of this primary) by leaders in the Democratic Party–the same one running against the GOP’s war on women–to silence all discussion of Democrats’ own attacks on women’s autonomy. As far as I’m aware, the only part of Pestka’s record that Thomas has addressed (thus far) was his anti-choice votes while serving in the MI House (indeed, MLive suggests that’s what this is about, as well). Pestka’s campaign, meanwhile, just wanders around saying Thomas has no record (ignoring, of course, Thomas’ role in getting DADT repealed; apparently that doesn’t count).

So this is not about gagging discussion on a policy that Justin Amash would use to bash the Democrat, cause he’s rabidly anti-choice too. Rather, it is about preventing voters from learning what Steve Pestka did the last time voters entrusted him to represent their interests. Mark Brewer’s idea of a “fair” primary is to prevent women from being reminded that Pestka’s record includes a history of legislating against women’s autonomy.

Apparently, we girls aren’t allowed to hold him accountable for voting against our interests.

Furthermore, Brewer built this gag order to be asymmetrical. He didn’t ask Pestka and Thomas to avoid talking about their own records–meaning Pestka would be gagged from mentioning he served in the House and Thomas would be gagged from talking about his role in a key civil rights victory. Rather, this gag order would allow Pestka to continue sending out lit pointing to his time in the State House as one thing that qualifies him to serve in Congress, without allowing Thomas to point out some of the terrible votes he made while there.

If you’re going to gag discussion about past records, Chairman Brewer, you’ve got to gag discussion on both sides!

There’s one more really disgusting aspect to this gag order. Brewer attempts to gag not just the campaign itself, but both his reference to “the media” in the passage above and in the scope of those the candidates would have to gag if they agreed to this–“campaign teams, including staff, surrogates, advisors, consultants, vendors and volunteers”–people far beyond Thomas himself. I’m not formally part of Thomas’ campaign at all (I have donated to his campaign, though), but I am “the media.” I also happen to be a 3rd CD voter who finds the paternalistic way the Democrats have pushed Pestka–“shut up girls! don’t talk about his anti-choice record!”–to be profoundly anti-woman. Is Chairman Brewer really proposing that Thomas be fined every time I speak, as a 3rd CD voter and registered Democrat, for the importance of a candidate who fully supports women’s rights?

That’s what the Democratic Party has come to?

Who knows. Maybe there’s a bright side to this. Pestka’s campaign loves to attack Thomas–who grew up, went to college, and worked in the area, then returned home after succeeding in DC–as a “carpetbagger.” Since this gag order also imposes a fine for personal attacks, I assume Pestka’s campaign will start doling out $1000 to a charity of Thomas’ choice every time they continue to make such stupid attacks.

Maybe Thomas should name Planned Parenthood as the charity Pestka will have to donate to?

C Street Takes Care of The Family’s Sex Problems, Again

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Roll Call reports that former Representative [redacted] son, [redacted], got hired as Tom Coburn’s District Staff Assistant. That, in spite of the younger [redacted] conviction on misdemeanor charges of criminal solicitation and sexual harassment.

Sen. Tom Coburn’s decision to hire a former Member’s son who has a criminal record illustrates the latitude lawmakers have to hire as they see fit — and the value of personal connections in a world where information about wrongdoing can be found at a moment’s notice.

[redacted]

Credit where it’s due, the Hill actually makes the connection between Coburn, the [redacted], the Christian cabal “The Family’s” brownstone known as C Street where they shacked up together, and the involvement of both in covering up John Ensign’s extramarital affair [redacted].

While it doesn’t come out and say it directly, it comes as close as possible in a Hill rag to stating the obvious: [redacted] only got this job because his daddy belongs to the same cabal as Coburn (and because he’s white and connected, because if he weren’t, even The Family might not have been able to help him).

Of course, Coburn is also the guy who once sterilized at least one woman without her consent because he thought she had had too many babies already. Vagina monsters, you see, aren’t entitled to the same kind of second chances as male members of The Family.

Update: Fixed mis-identification of original report to Roll Call thanks to Peterr.

Update, 12/3/20: Names that have legally been expunged have been redacted.

Zimmerman: Anatomy Of A Deficient Probable Cause Affidavit

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Now that the dust has settled from the decision in the Zimmerman/Martin case not to proceed by grand jury by the Florida Special Prosecutor Angela Corey, and the decision to file a single count of second degree murder, I want to address a couple of critical topics in the case. First is the fact that there are serious questions as to the sufficiency of the probable cause affidavit that currently constitutes not just the core, but pretty much the entire basis for the state’s case.That will be the subject of the instant post. Second, will be a discussion of the mechanics of Florida’s procedure for implementing its “Stand Your Ground” law and a discussion of other pending procedural aspects of the case, and that will be covered in a followup post.

A probable cause affidavit is exactly what it sounds like, a sworn affidavit delineating probable cause in a criminal case – whether it be to search a place, arrest a person or charge a crime. Whatever the particular purpose, the affidavit must delineate the factual basis to support the specific legal action sought to be pursued by the state. And the general principle common to all such affidavits, whether for search, arrest or charging, is that it must “stand on its own” based on “what is within its four corners”. In lay terms, that means there must not only be sufficient information to cover all requisite elements necessary for the action, all such support must be actually in the affidavit – not in some extraneous place or with some extraneous source.

The Zimmerman affidavit is, at least by my analysis, wholly deficient for its purpose intended, i.e. to support the criminal charge under Florida law of second degree murder against Zimmerman.

We will start with a look at what useful, and useable, information is actually contained in the affidavit. Here is a complete copy of the full three page affidavit filed by the State of Florida in the Zimmerman case. Other that captions, signatures and certifications, all pertinent information is contained in twelve text paragraphs on the first two pages. Let’s look at them:

Paragraphs 1-3: The first three paragraphs give the names of the two investigators that are serving as the affiants for the affidavit and gives their background experience that qualifies them to do so. The investigators, O’Steen and Gilbreath both appear to be very experienced and appropriate for the task. No problems here.

Paragraph 4: The fourth paragraph details the types of material, evidence and sources the affiants relies on. Pretty standard stuff, again no problems here. (Interesting that the state appears to have a lot of “sworn statements” – even from cops, which is kind of unusual at this stage. Cops rarely give sworn evidence if they don’t have to, and prosecutors rarely want to lock them in this early. There may have been an internal affairs type of investigation that explains this, we shall see).

Paragraph 5: The fifth paragraph is the first factually substantive material. It details that Martin was living in the gated community at the time of the event, was returning from the store (with the infamous Skittles) and was unarmed and not engaged in any criminal activity. Then, however, the affidavit blurts out a critical, but completely unexplained and unsupported claim, namely that Zimmerman was “profiling” Martin. It does NOT allege that any such “profiling” had a racial animus or was, in any sense, illegal or improper. This is important because, while it is a rhetorically charged term, profiling is completely legal, whether for police or average citizens, so long as it not based on an improper invidious animus like race, religion, sex, etc. So, with NO allegation of improper animus here, and there is not, the profiling alleged is completely and unequivocally legal. Further, there is absolutely no specific attribution as to where this allegation came from – did Zimmerman admit it, if not what was the basis for the conclusion by the affiants? We have NO idea whatsoever, it is just a raw conclusory statement of absolutely no value whatsoever in its naked state. In short, there is nothing in Paragraph 5 that does anything to actually provide probable cause for the crime charged.

Paragraph Six: Paragraph six is much like paragraph five, except it details the intro to Zimmerman, where paragraph five did so for Martin. Zimmerman also lived in the gated community. It relates Zimmerman was “driving his vehicle” (we have no idea from where or to here) and “assumed Martin was a criminal”. Well that sounds bad right? Well, not really. First off, again, there is absolutely NO way of knowing where this information came from – did it come from Zimmerman? Was it culled from the 911 tape? Did a psychic conjure it up? We don’t know. Remember, it is seminal affidavit law that a;; pertinent facts must be supported and attributed “within the four corners of the document”. There is also a statement the 911 dispatcher told Zimmerman an officer was “on the way”. Again, there is absolutely nothing in Paragraph 6 that does anything to actually provide probable cause for the crime charged.

Paragraph 7: Paragraph seven is yet more of the same. It describes that Zimmerman believed there had been unsolved break-ins in the neighborhood, and “fucking punks” and “assholes” “always get away”. Credit where due, we finally have a specific attribution point for the statements by the affiants, it is specifically stated to be from the recorded 911 call. See, the state and affiants are capable of proper attribution when they want to. Small victory. The problem is, there is still NO improper or illegal activity described. None. So far, Zimmerman is judgmental and concerned about his neighborhood, but there is not one scintilla of illegal conduct.

Paragraph 8: The eighth paragraph starts out with a description of a call Martin was on supposedly at the time he was being observed and followed by Zimmerman. But, again, there is not squat for specificity or particularity, the linchpins of a proper affidavit. We are not old who the person on the phone with Martin is, what the exact time of the call, and length of call, was, and we are not told how that information is known. Was that person interviewed by cops? Did she give a sworn statement? Did these investigators talk to her themselves, or was it some other officer and, if so, who? Hearsay, and even double or triple hearsay is acceptable in an affidavit, but the path and facts establishing it must be delineated. Here it is not. Then paragraph 8 goes off the Read more →

What Zimmerman’s Charge Means (Or Doesn’t)

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Well, okay, the press conference by Angela Corey is over. Let us be clear, it was the performance of a politician and, not necessarily that of a grounded and by the book prosecutor. Seriously.

First off, Ms. Corey talked in repeated and continued platitudes and never, at any point, identified what the exact charge she was prosecuting Zimmerman under, nor her basis for doing so.

This is important to me, and the discussion herein at this blog, because 1) we are intelligent and actually care about such specifics, but 2) It is really important in a publicly and hotly contested case such as the Zimmerman shooting homicide of Trayvon Martin.

I stand by everything said in my preliminary post today as to why the path, via information filed and prelim process is not only appropriate, but absolutely smart. That still stands.

The only issue, at this point, is the actual charging of the criminal defendant, in this case George Zimmerman. Here is the SOLE charge filed by Angela Corey against George Zimmerman:

COUNT 1: IN THE COUNTY OF SEMINOLE, STATE OF FLORIDA, On February 26, 2012, GEORGE ZIMMERMAN, did unlawfully and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill TRAYVON MARTIN, a human being under the age of eighteen, by shooting the said victim, and during the commission of the aforementioned Second Degree Murder, the said GEORGE ZIMMERMAN did carry, display, use, threaten to use or attempt to use or attempt to use a firearm and did actually possess and discharge a firearm and as a result of the discharge, death or great bodily harm was inflicted upon any person, contrary to the provisions of Sections 782.04(2), 775.08(1) and 775.087(2), Florida Statutes.

That would be 2nd degree murder, as charged. Under what actual section of the pertinent Florida statute are we talking? Well, 782.04(2), 775.08(1) and 775.087(2). does that really tell you where and how the state is proceeding? No. Not to my eye, it does not. Take a look, if you can see the specific, definable, path to charge, then you are a better man and lawyer than I. If you can see, maybe, potential, possible, applicability then join the club. But, that is, of course, not the standard.

Here, however, is the manslaughter provision I proffered in the earlier post. I now see legal gadabout Mark Geragos on CNN saying the 2nd degree statute charged may be actually easier to prove up than a manslaughter charge. He is is fucking crazy loopy off his rocker if he really believes that bleating bullshit.

Seriously, I cannot speak as an active criminal prosecutor, but as a defense attorney, bring this on. If my client has to be charged, I would rather he be over charged, especially nebulously and with all the justification defenses available under Florida law, as either described and/or linked, in the earlier post.

So, to sum up, I would say it is a bit batty to charge the HIGHEST POSSIBLE CHARGE IMAGINABLE, and ONLY THE HIGHEST CHARGE IMAGINABLE, with no lesser included backups. But, hey, what me worry Angela Corey?

Yes, I am perplexed at this. Completely. Let the college of internet knowledge school us on why this is wrong.