Media Failure: Gates And Crowley Need To Personally Lead
Yesterday morning I posted (Henry Louis Gates’ Contempt Of Cop) on the legal implications of the Henry Louis Gates arrest thrust into the national consciousness by President Obama with his response to a question at Wednesday night’s prime time healthcare press conference. The discussion here was outstanding, however in the major media forums of print, and especially television news and talk programming, the situation has devolved and cleaved into the all too predictable he said/she said pitting of one side versus the other. Left versus right. White versus black. Conservative versus liberal. Law and order versus criminal. Yadda, yadda yadda.
In short, what passes for media and journalism in this country today has failed the public audience it is supposed to serve. Again. A disappointing, but certainly not shocking result.
None of us, and none of the chattering media, were there at the Crowley-Gates scene, but we never really are for these moments in life and history; we still learn and live vicariously through them. By no means was Gates’ conduct exemplary in the encounter, it simply was not. As far as the encounter itself, he was every bit as responsible for the escalation, and quite arguably more so, as the officer, James Crowley. By the same token, Crowley is the trained professional, who teaches other officers how to handle and diffuse situations exactly like this one, and he did not acquit himself well at all either. But that is as to the facts and interpersonal dynamics; from a legal standpoint, Gates’ conduct was clearly and unquestionably completely legal. Irrespective of his conduct, Gates’ arrest was patently false and illegal; you would think some of the media’s vaunted "experts" might could point that out.
The Crowley-Gates incident, however, provides a great teaching moment from both points of view, because each side made their point with classically poor conduct; we can all learn much from both. It is a perfect, and for once not tragic, vignette from which to discuss lingering and important issues of race in America. We owe both sides of the incident, Mr. Gates and Mr. Crowley, as well as the President and ourselves, the duty to take advantage of the moment and raise the discourse.
The media, and the citizens it serves, need to stop debating the legality of the arrest, because there really is no valid legal dispute there. The arrest itself was illegal. The national conversation should accept that, leave it behind, and move to the ground of what happened in the interpersonal dynamics of the two protagonists, what it meant to each other and what it means to Read more →
Henry Louis Gates’ Contempt Of Cop
At last night’s nationally televised press conference, a reporter, Lynn Sweet, asked President Obama a question about the July 16 arrest of famed Harvard professor Henry Louis Gates. Obama gave a perfectly reasonable answer, at first a little humorous as to what would have happened to him in a similar circumstance, and then indicating that the Cambridge Massachusetts police department "acted stupidly", followed by a serious discussion of the lingering problems in the US of oppressive profiling and treatment by police of Blacks and Hispanics.
Obama’s response, predictably, set the chattering press all a twitter and a tweeting. This brief interlude at the very end of the press conference didn’t get as much afterglow coverage as the healthcare issues that were the reason for the press conference in the first place, but it sure seemed like it came close on cable channels such as CNN and MSNBC.
First off, let me say I agree with Josh Marshall:
But let’s be honest: this is all about a black guy getting on the side of another black guy who got crosswise with the cops. Why would he touch such a powder keg? Like it’s going to ignite at least one more battle in the late lamented Culture War.
That really is it, isn’t it? What set the twits a twittering was the first black President had the audacity to stand up for another black man and call the overzealous and oppressive police response in the case stupid. Well, the police response was stupid.
That said, before I go further, I would like to point out one thing. Barack Obama may have shown himself to be a truth teller and friend to Henry Gates last night, but he may have done Gates a disservice in one regard. The famed "Blue Line" of police in situations like this is a strong factor far greater than most people realize, and Obama’s comment will surely stiffen the police line in Gates’ case. It was a line already forming:
The union representing the police sergeant who arrested a prominent black Harvard professor last week at his home in Cambridge, Mass., said it was standing behind the officer. The union, the Cambridge Police Superior Officers Association, said in a statement that Sergeant James Crowley was a “highly respected veteran supervisor” who had its “full and unqualified support.” “His actions at the scene of this matter were consistent with his training, with the informed policies and practices of the Read more →
CIA Fraud In State Secrets Assertions
There is a new case causing a stir on the state secrets front today. The case is Horn v. Huddle et. al, is filed in the DC District, and has been quietly going on behind the scenes since 1994. From Del Wilber at the Washington Post:
A federal judge has ruled that government officials committed fraud while defending a lawsuit brought by a former DEA agent who accused a CIA operative of illegally bugging his home.
In rulings unsealed Monday, U.S. District Judge Royce C. Lamberth wrote that he was also considering sanctions against five current and former agency lawyers and officials, including former director George Tenet, for withholding key information about the operative’s covert status.
The rulings, issued in recent months, highlighted what the judge called fraudulent work by CIA lawyers in defending a suit that Lamberth said had a lengthy and "twisted history."
Here is the ruling issued by Judge Royce Lamberth today that set off the firestorm.
There is a lot of great background on the case, and events behind it, in an old post from Bill Conroy at Narco News in 2004:
Former DEA agent Richard Horn has been fighting the U.S. government for the past 10 years trying to prove the CIA illegally spied on him as part of an effort to thwart his mission in the Southeast Asian country of Burma.
After being removed from his post in Burma, Horn filed litigation in federal court in Washington, D.C., in 1994 accusing top officials for the CIA and State Department in Burma of violating his Fourth Amendment rights.
After languishing in the federal court system for some 10 years, Horn’s case was dismissed in late July of this year [2004] after crucial evidence in the case was suppressed on national security grounds.
…
What really happened in the Horn case, though, is not supposed to come out, if the government has its way. From the start, Horn’s litigation was sealed and critical evidence that could have supported his claims censored by the court.
Specifically, the evidence – two federal Inspector General (IG) reports that centered on Horn’s accusations – was determined by the court to be protected from disclosure based on something called state secrets privilege. The privilege, which was established as part of a 1953 Supreme Court ruling known as the Reynolds case, allows the government to deep-six information if it is deemed a threat to national security.
“Having determined that state secrets privilege bars disclosure of the IG Reports and certain attachments … the case cannot continue and Read more →
Senate Hate Crimes Bill Threatens First Amendment
There are inherent First Amendment and equal protection issues with any "hate crime" legislation as I pointed out when Eric Holder started aggressively pushing Congress for passage of a new bill. That said, if you are going to enact such laws, they must be targeted, rational and designed to effect the result desired and not any other. Such laws should not be vague and expansive, should not be able to be wielded by prosecutors as selective bludgeons and should not infringe on First Amendment rights to free speech and association.
Late Thursday night, the Senate passed a Hate Crimes Bill that arguably violates all of the above.
People attacked because of their sexual orientation or gender would receive federal protections under a Senate-approved measure that significantly expands the reach of hate crimes law.
The Senate bill also would make it easier for federal prosecutors to step in when state or local authorities are unable or unwilling to pursue hate crimes.
"The Senate made a strong statement this evening that hate crimes have no place in America," Senate Majority Leader Harry Reid, D-Nev., said after the chamber voted Thursday to attach the legislation as an amendment to a $680 billion defense spending bill expected to be completed next week.
The House in April approved a similar bill and President Barack Obama has urged Congress to send him hate crimes legislation, presenting the best scenario for the measure to become law since Sen. Edward Kennedy, D-Mass., first introduced it more than a decade ago.
According to the ACLU however, the Senate botched the job:
The Senate late Thursday passed an amendment as part of the Department of Defense Authorization bill that would give the federal government new authority to prosecute certain violent acts based on race, color, national origin, religion, gender, sexual orientation, gender identity and disability. However, the Senate version of the hate crimes bill lacks the strong protections for speech and association included in legislation passed by the House of Representatives in June. The American Civil Liberties Union believes that without the speech and association protections included in the House bill, the Senate hate crimes legislation could have a chilling effect on constitutionally protected speech and membership.
The following can be attributed to Christopher Anders, ACLU Senior Legislative Counsel:
“It has been our experience that the fight for better and stronger civil rights protections is more successful when free speech and association are protected along the way. Fierce protection of free speech rights Read more →
Sotomayor Confirmation Hearings, Day 4, Witnesses
Soon to come, Frank Ricci.
Bloomberg: Republicans, Democrats, and Independents all can support her, bc I have been all three. And we need her to have a SCOTUS judge from Brooklin, Bronx, and Queens.
Ricci: Firefighters have had to endure to vindicate civil rights. We have become more effective. Too many think that firefighters just fight fires. Rescue works can be very technical require great deal of knowledge and skill. When you house is on fire or in jeopardy, no time for do-overs. Lieutenant test undoubtedly based on skills. All provided a road map for exam. Achievement about commitment and character. Cannot be handed out without consideration. Absentee father and husband because of it. Not enough African Americans. Such action deprived all of us rule of law. Important civil rights and constitutional claims we raised. Appeals court one paragraph. Mentioned my dyslexia. Nothing to do with that. Americans have right to be judged not on race or feelings. Very reason we have civil service rules, root out nepotism or discrimination. Making decisions on who should commend solely based on statistics. Bothered this greatly that some perceived this case as resulting in minorities completely excluded from promotions. They should now enjoy career advancement they deserve.
[Doesn’t that mean Latina Soto would have ruled for you and those Latinos?]
Ricci: We sought basic fairness.
Vargas (another of the plaintiffs): Congratualte Soto on her nomination. Focus should not have been on me being Hispanic. My own govt and some courts responded to that. They didn’t care. I played by the rules. Endured long process of asking courts to play by the rules.
Durbin: Did Soto win a bunch of awards because of a quotas?
Chavez: No. She was not prepared.
Durbin: That would make it an amazing story then.
Chavez: I wish what she was telling Latinos that if you take home books, blah blah blah. I made this a story about racial quotas but I’m gonna claim that she’s the one making the claim.
Morganthau: I took a look at her resume. Common sense and judgment. The fact that she was Latino or Latina had nothing to do with it. One of founding directors of PRDF. Way unrepresented minority.
Sotomayor Confirmation Hearings, Day 3, Part V
Feingold: Capertown v. Massey. Most states have rules to protect judicial impartiality. In your opinion what additional steps to ensure judiciary held to highest standards.
SS: Inappropriate to make suggestions to Congress. Judicial code has a code of conduct. Many states doing what I spoke about–passing regulations. Capertown.Taken under supervisory issues over courts. At issue is that judges and lawyers must abide by highest standards of conduct. Law is minimum one must do.
Feingold: Roberts and Alito hate campaign finance, and believe corporations ought to be able to donate. Legal advantages that allow them to amass great wealth. If court overrules Austin. Unlimited corporate spending not seen since 19th century. What precedents provide about state of elections.
SS: Attempted to answer every question. You have noted that Citizens United for September. If confirmed it would be first case I would participate in. Given that case, I think it would be inappropriate to speak about that area of the law. Suggest I’m going into that process with some prejudgment about precedent. I appreciate what you have said, special circumstance.
Feingold: I probably would say the same thing.
Grassley: I assume I can have Feingold’s time?
Leahy: Given that you turn people on, no. Up to 20 minutes.
Grassley: Never asked before in this hearing. Want to say there’s SCOTUS decision Baker v Nelson, 1972. Federal Courts lack jurisdiction to hear state marriage laws. Do you believe Court can speak about marriage?
SS: Pending in many courts.
Grassley: Yesterday you said these are precedents. Are you saying Baker v. Nelson is not a precedent.
SS: I don’t know what status is. I will apply precedent to facts of new situation that implicates it.
Grassley: Tell me process you’d go through over whether Baker is precedent or not.
SS: Two sides will come in. One side will say Baker applies, another will say another precedent applies. They’ll argue about what applies. And then court will look at what state has done and decide which precedent controls this outcome. It’s not that I’m attempting not to answer. Process that would be used.
Grassley: Following what you said yesterday that certain things are precedent. You didn’t seem to compromise or hedge. Why are you hedging on this.
SS: Its holding is a holding. It’s been a while since I looked at that case.
Sotomayor Confirmation Hearings, Day 3, Part IV
Sotomayor back, Leahy reading a letter of some sort. There was some confusion bc Leahy’s mike didn’t work. Franken let Leahy use his. I think it was Sessions who joked it was the fastest rise of a Senator ever, suggesting Franken was taking over as Chair.
Leahy: Lily Ledbetter. Savanah Redding. How might it affect the confidence of those seeing only one woman on Court.
SS: Every president in last 20 years has attempted to promote diversity bc confidence increases when Court reflects all members of society.
Leahy: Gideon v. Wainwright. Right to counsel.
SS: Right to counsel on criminal and competent counsel. Question of whether incompetent counsel has caused damage.
Leahy: If Constitution guarantees fundamental right to exercise right, these rights are only meaningful if American can enforce right in court.
SS: We work to ensure given meaning in Court.
Leahy: Safe to say, Constitutional right, only safe if you can enforce it.
SS: Given meaning through actions, through leg, retention of qualified counsel.
Sessions: Judicial activism, Senator [can’t say it can you, Sessions] um, our new Senator asked that. Hatch has a definition. Personal views overcome. Liberal or conservative activist judge. Sill concerned. We must ask questions. Wise latina.
Sessions: Second Amendment. It’s a big issue.
SS: It may well come up. Not familiar enough with 50 states, to know about absolute prohibition. All I can speak about, question for court would not be whether govt action in isolation, what’s the nature of govt interest.
Sessions: Don’t you think you should recuse yourself since I don’t like your approach to guns?
Sessions: Has anyone said not a fundamental right? (I’m going to keep interrupt you so you can’t answer.)
SS: Fundamental is a legal term.
[Oops–had a phone call, missed some–Kohl asked about when to overturn precedent]
Kohl: Antitrust.
SS: I don’t make policy. How much had to be plead, didn’t understand it to mean that presentation of evidence at pleading to withstand motion to dismiss.
Kohl: You would not be bound by Twomley?
SS: It has to be considered.
Kohl: My reading of Twomley and your reading, my understanding it’ll have negative impact to bring anti-trust bc of requirement that they produce enormous amount of evidence before proceed. If I understand correctly, a precedent of problem.
SS: Every argument gets made to the courts, and not once but many times.
Kohl: Which cases it hears. 1% of appeals they receive.
[explains conflicting issues, other reasons to take a case]
Sotomayor Confirmation Hearings, Day 3, Part III
We’ll have four Dems in a row: Klobuchar, Kaufman, Specter, and Senator Al Franken (!).
Oops, just two up before lunch.
Klobuchar: How patient your mother has been. She has a lot she’d like to say. Plenty of stories. I thought I might miss my questioning opportunity. Much more patient than my mother has been, leaving messages like, "how long do these guys have to go on. DiFi was brilliant, what are you going to do?" Coburn, Heller. In Maloney, bound by precedent in Circuit. Keep an open mind of SCOTUS takes up question.
SS: Take every case case by case.
Klobuchar: Whitehouse, PRLDF, minor follow-up, ABA code of conduct bars board members from engaging in litigation because of lack of lawyer-client relationship. Not going into Wise Latina, 1994, provided to Senate for confirmation in 1997, 1998, no Senator asked you about it.
Klobuchar: What I want to talk about: criminal prosecutor. One thing I have found, if come into Crim system thinking you can change ills of society, not where those kinds of changes can be made.
SS: By time criminal defendant ends up in Court, they’ve been shaped by their lives. If you want to give people best opportunity for success, it has to be through early childhood forward. Pay attention to education, message not lost on me when I became a prosecutor. Success of communities depends on improving education and parental participation.
Klobuchar: Limited role judge has to not make laws. Is that correct?
SS: Focusing on different part of that, as prosecutor, role not what punishment should have been, set in law.
Klobuchar: Tough decisions you have to make as prosecutor.
SS: I was influenced by television show, passion as prosecutor, Perry Mason. One of the first lawyers portrayed on television. In all cases except one, he proved his client innocent. Got actual murderer to confess. End of episode, met with character that played prosecutor. Perry said, expend all that effort to have charges be dismissed. Prosecutor: no, my job is to do justice. I thought that’s quite amazing. Look at each case individually. Some times to bring tough charge. Periodically look at quality of evidence, say there’s just not enough.
Klobuchar: Want to take pragmatic experience as prosecutor. A month ago, baggage carrier, Are you going to vote for that woman? Aren’t you worried that her emotions get in front of the law. Read more →
Sotomayor Confirmation Hearings, Day 2, Part IV
Schumer up. Going to follow up on Sessions and Kyl.
Schumer: Let’s talk about your 17 years of being a judge. No colleague has referred to a case where you tried to change the law. So if a colleague looks at a few snippets rather than your extensive record, colleagues attempting to say you’d put empathy above rule of law. What having empathy means, then turn to record. Commit to rule of law?
SS: Can make and have made for 17 years.
Schumer: One would expect most sympathetic plaintiffs would win. Tragic TWA crash. Sued manufacturers of airplane. Did you have sympathy for the families?
SS: Absolutely.
Schumer: Ruled against them.
SS: Didn’t author majority opinion. Dissent suggested that court should have followed existing law.
Schumer: Appropriate scheme for reimbursement off US coast legislative issue. How a judge should rule. How’d you feel?
SS: One in as tragic situation, personal sense of regret but personal senses cannot command results in case.
Schumer; I guess I don’t have to ask you whether you’re a Mets or Yankees fan?
Leahy: You’d better not let her answer or the Chair will have to vote against her.
[Schumer calls her Scalia, not Sotomayor, saying she should root for the Red Sox.]
Graham: My problem is that the cases you’ve been involved in are left of center but nothing that jumps out at me, but your speeches. I keep talking about your speeches because otherwise I have to admit you’re a boring, hugely qualified judge.
SS: I don’t use labels.
Graham: When Justice Rehnquist said he was a strict constructionist, did you know what he meant? Will you please label yourself so I can show how that means you’re not Rehnquist?
[SS torturing Lindsey because she refuses to label herself or the Constitution. Next up, Graham refuses to let pictures be released.]
Graham: Do you think Roe v Wade changed society?
SS: I think Roe v Wade looked at the Constitution and applied it.
Graham: Does the Constitution as written prohibit a legislative body from defining life?
SS: Word abortion not used in Constitution but it has a broad provision.
Lindsey, thinking he’s very clever, "And that gets us to the speeches." And on and on and on and on. That’s what drives us here. Balls and strikes. A lot of us feel that the best way to change society is to go to ballot box. A lot of the rest of us stacked the courts and don’t want to lose the advantage.
Lindsey: You’re as Read more →