NEITHER MAJORITIES, NOR EXECUTIVES IN GOVERNMENT… NECESSARILY RULE!! (Part 2 – COURTS)

You might want to take a look at Part 1 of this blog entry as it relates to majority/minority rule.  It gives a little background on how Donald Trump lost the election and still ended up President of the United States, but now more civics…

One of the things that The Donald and his staff have screamed about, more loudly and harshly than almost anything, is how the Courts have stymied their efforts to do things.  He is right, they are doing exactly that, and that is, more importantly, their job!

The Courts; that allegedly despotic, black-robed, appointed-for-life, group of bastards, is in the business of making sure that the majority does not trample the rights of minorities and that the Executive does not violate the law by use of the executive power of the presidency.  The majority, in this case is the Government, in spite of the fact that Donald Trump was elected by a minority of the popular vote (see Part 1).  The Courts are designed to protect us from our government.  Much to The Donald’s chagrin, the Courts are in the business of limiting Government authority, something an autocratic, corporate-thinker like The Donald despises.  He is used to telling people to jump and having them ask, “How high?” while on the way up.  The Courts telling him what he can and cannot do is anathema to this dictatorial way of thinking.

If you think about it, we have in The Constitution, the Bill of Rights.  The Bill of Rights was made part of the Constitution because people were distrustful of the Government, having just separated from the rule of a King with absolute authority purportedly handed down from God.  It was specifically designed to prevent the abuses of the people by the government and more specifically the president.  The First Amendment prevented “We the People” from being suppressed in expressing our opinions. The Second Amendment prevented the government from disarming the citizenry and stopping the kind of rebellion we had recently fought to win our independence.  You will recall that the British Army had made efforts to disarm the colonists in 1774 – ’75.  The result, the Second Amendment.  All of the Amendments in the Bill of Rights have a basis in the government abuses of power against the citizens, at the time the British Crown.

We can draw a few conclusions here.  Since the Courts are responsible for protecting the rights of the minority and the people in general from them, the majority and the government might well be a bit miffed that they are being prevented from doing what they want to do.  This is to be expected, and if the majority and Executive are not screaming, then probably the Courts are not doing their jobs.  The Donald believes himself to be the only one with all the answers and anyone that disagrees with him is, at best, an idiot.  In another society, The Donald is the kind of person that would do a number of things to prevent obstruction of his benevolent dictatorship; declare a state of emergency, martial law and jailing anyone who dissents.  It is the self-fulfilling rubric of paternalism.  I know what’s best, so anyone that prevents me from doing what I want to do is un-American.

There are those that believe that The Donald is acting to oppress and trample the Constitutional Rights of a minority and exceeding his authority as president.   Members of that minority went to Court and the Courts have basically said two things; first, we believe that the plaintiffs are likely to prevail in proving that the Executive Branch has violated the rights of the plaintiffs and/or exceeded his authority and/or encroached on the authority of another branch of government; second, that the damages are likely permanent and irreparable.  Thus, the Court issued a temporary injunction preventing the Executive Branch from continuing these practices, at least until the case can be argued more fully, or appealed to higher Court.

It is important to note a few things about the process itself.  The plaintiffs in the case filed suit.  The defendants, in this case the Government of the United States, and more specifically, the Executive Branch and the Trump Administration, were served a copy of the allegations as to why the Executive Order violated either the Constitution or existing law.  The Government then had the opportunity to make its case in opposition.  The case was heard by a Judge, who, after hearing both sides of the case, made the decision regarding the injunction.  What The Donald does not appreciate, and stridently objects to is the fact that someone had the temerity to tell him, “No!”  The Donald believes that no one tells The Donald “No!”

The tantrum being thrown by the Trump Administration is all about whose ox is being gored.  The Donald absolutely hates all things Obama, so he has virtually repealed everything he can repeal by Executive Order.  The Trump Administration has been defined by his negative actions.  He has negated by executive fiat, everything he can manage to undo that was done in the eight years before, but that is not what has really gotten him in legal trouble with the Courts.  It is when he actually does something that gets him in trouble with the Courts.  When he takes action to discriminate against and ban Muslims, regardless of what he calls it, he goes too far and the Courts say, nope, can’t do that.

Throughout history, some of the worst atrocities committed have been those by the majority against a minority, often in the form of a majority-elected government.  We have the most striking example in this country the enslavement of blacks and later the prejudice and discrimination that many argue has not, to this day, ended.  The laws that were used to enforce this discrimination are seemingly endless. Hell, The Constitution of the United States used the formula that enslaved persons would be determined to be 3/5 of the non-slave population for purposes of representation.  This is not quite the 3/5 of a man it has been been interpreted to be, but clearly it was an incredible, and today unconscionable, discrimination against blacks.  While it was the Civil War and Congress that legally ended slavery, it was the Courts that started the ball rolling on ending racial discrimination.

The Courts themselves have made some unconscionable decisions, chief among them, the Dred Scott decision in 1857 (arguably a decision that helped give us the Civil War) and Plessy vs. Ferguson in 1896, both of which tried to maintain the status quo of slavery and later separation of the races in education.  Much to their credit, however, they have also made some of the greatest decisions, overturning their previous actions.  Notable among these was Brown vs. Board of Education in 1954. 

Our civics lesson takes us now to math.  The Brown decision was made in 1954.  The Civil Rights Act of 1964 was, well, 1964.  The Congress of the United States would take a decade to pass legislation the Courts had pretty much already started.  I am sure there are lawyers among my readers that will be able to provide more and better examples.

The point of all this explanation and education is that the Courts exist to protect the rights of minorities that the majority is trying to oppress.  The Courts are intended to act as a check on the Executive, to prevent people like Donald Trump from engaging in practices that, if allowed to go unchecked, I believe present a real, present and existential threat to the United States as a democracy.  Like any bully called to account by an adult or authority, the bully throws a tantrum, just like The Donald has on several occasions.

NEITHER MAJORITIES, NOR EXECUTIVES IN GOVERNMENT… NECESSARILY RULE!! (Part 1 – ELECTIONS)

This may come as a shock to many, especially to Donald Trump and those that are seemingly rabid Trump supporters, who I refer to as “Trumpkins,” but we do not live in a country governed by “majority rule”.  I can hear the gasps from the greater populace.

The United States was founded on the principle of ‘majority rule AND minority rights.  If you would like a supporting example of this, you have but to refer to the election of Donald Trump as president for an example.  Donnie was “selected” president by the Electoral College after losing the popular vote.  This is a fact that many find that galling, myself among them, but it is a fact nonetheless.  I take great pleasure in reminding the greater world of this fact every chance I get, especially when “The Donald” claims he has this “incredible”, “yuge”, “fantastic” mandate, the fact is that none of these are true, regardless of his tantrums, and those of his supporters, to the contrary, but now for the civics lesson.

The Electoral College was established to protect the minority in the election process.  The smaller, less-populated states, wanted to make sure that the more-populated states would not just elect the president using their overwhelming large populations.  If you look at the process in the case of The Donald that is what happened.  He lost the popular vote by some 3 million votes and still became president. In fact The Donald lost the popular election by 2.1%.  The only president to be elected by a lesser percentage of the popular vote was John Quincy Adams in 1824.  He lost by 10.44% (He actually never got a majority of the electoral college, causing the vote to be forced into the House of Representatives, but that is a lesson for another day).  So while The Donald claims he has a mandate, the only mandate this guy has is the one he had with Mitt Romney over candlelight. A majority of the people of the United States of America voted against him, period, end of story! 

I suggest you look at Part 2 – The Judiciary, to see why this minority rights thing is so very important.  It is really one of the main reasons we have Courts as a co-equal branch of government.

TRUMP AND “THE BIG LIE”

I have been so disgusted by the events and candidates in this election that I had previously just been ambivalent to the whole thing.  Given my experience, education, training and past, this ambivalence says a great deal.  I revel in politics and political discourse, but the vile and putrid nature of the campaigns in this election had me turned off completely....That is until now. There are a lot of really bad things you can say about Adolf Hitler, Joseph Goebbels and Donald Trump, but they are all absolute masters of propaganda.  Specifically they were, and Trump is, the master(s) of “The Big Lie.” And yes, I put them in the same category when it comes to the use of “The Big Lie.” 

Adolf Hitler coined the expression “The Big Lie” when he dictated his 1925 book Mein Kampf.  “The Big Lie” is the use of a lie so "colossal" that no one would believe that someone "could have the impudence to distort the truth so infamously."

[The] secret does not depend on particular intelligence. Rather, it depends on a remarkably stupid, thick-headedness. The principle [follows] that when one lies, one should lie big, and stick to it. They keep up their lies, even at the risk of looking ridiculous.  [Joseph Goebbels, 12 January 1941. Die Zeit ohne Beispiel. Munich: Zentralverlag der NSDAP. 1941, pp. 364-369]

The phrase was also used in a report prepared during the war by the United States Office of Strategic Services in describing Hitler's psychological profile:^[5][6]  A Psychological Analysis of Adolph Hitler. His Life and Legend by Walter C. Langer. Office of Strategic Services (OSS) Washington, D.C. With the collaboration of Prof. Henry A. Murr, Harvard Psychological Clinic, Dr. Ernst Kris, New School for Social Research, Dr. Bertram D. Lawin, New York Psychoanalytic Institute. p. 219 (Nizkor)

His [Hitler’s] primary rules were: never allow the public to cool off; never admit a fault or wrong; never concede that there may be some good in your enemy; never leave room for alternatives; never accept blame; concentrate on one enemy at a time and blame him for everything that goes wrong; people will believe a big lie sooner than a little one; and if you repeat it frequently enough people will sooner or later believe it.  [Emphasis Added - Hitler as His Associates Know Him (OSS report, p.51)]

Donald Trump is using almost precisely this strategy.  I recently reviewed a list of 56 fact-checked statements by Donald Trump that, as it turned out, were absolute, unadulterated, bald-faced lies.  I am not talking about differences of opinion nor matters of interpretation.  I am talking about Trump saying something that is in direct, absolute, stark contradiction to something he said previously that is on audio or video.  When confronted with this fact, he insists it is not contradictory, all proof to the contrary.  Other items are just demonstrably untrue and there are not now, nor have there ever been, any disagreements about the facts, other than The Donald.  Hillary Clinton put it best when she sited "Donald World" where

Now that Donald Trump is receiving close scrutiny by the media, he has adopted the position of telling the voters, and particularly his supporters, that it is the left-wing media that is making false allegations against him.  Basically, he is telling us, the media is lying to everyone about everything about him.  Again, all proof to the contrary notwithstanding.  It is a good indication that Trump supporters have a herd mentality that is causing them to completely ignore reality.  These people, if Donald Trump stated the sun will rise in the west tomorrow, they would flock to the pacific coast with absolute certainty that it was going to occur.  Then, when it did not, they would insist it did occur, because The Donald said it would, then it must have.  The left-wing media reporting that the sun arose in the east, as it has since the beginning of time, would be dismissed, because The Donald told them to dismiss it.

I am completely aghast at the mentality, or lack thereof, of not just the deceiver himself, but the people that find a way to deny reality, deny proof and accept that which absolutely cannot be true.  I do understand that it is not without precedent, even on the kind of scale as national elections.  Adolf Hitler adopted the Big Lie technique, told everyone, in writing, about the Big Lie technique and then proceeded to use it to become Chancellor of Germany.  We are coming close to possibly electing a new “Fabricator in Chief” that will have no basis on a claim to the Presidency, other than he was able to utterly and completely deceive the electorate, who will blindly follow this man over the cliff like so many Lemmings.

Donald Trump is a megalomaniac and truly believes that he has and is the one true way.  This makes him more dangerous than can be imagined.  If he has the one true way, then anyone that disagrees with him must be stupid and therefore can be dismissed.  This attitude and mentality also gives The Donald the means by which to become, purely and simply, a dictator. 

The corporate world lends itself to dictatorial rule.  The Donald would have us believe it is also suitable for leaders in government.  Why else would this pompous fool admire and flatter the likes of Vladimir Putin?  It is because he wants to govern just like him.  Disagree with Donald and you’re fired!  I am not sure he will stop at merely dismissing people, but will try to find a way to render them to CIA camps for political re-education.  Anyone remember how that worked out in other countries?  Germany had concentration camps, Cambodia had re-education camps.  The result was millions dead that did not agree with the political ideology of the leaders of the country, and the list of countries in which this has occurred over time is almost endless.

I am left with only one explanation, best articulated by Bill Engvall, “Ya can’t fix stupid.”  And to those who vote for this liar, cheat and thief I say, “Here’s your sign!”

DUCK DYNASTY & THE "RIGHTS" OF THE RIGHT...IT ALL DEPENDS ON WHOSE OX IS BEING GORED

The big kerfuffle of late is whether A & E violated Phil Robertson’s (of Duck Dynasty fame) rights when they suspended him for making homophobic comments in an interview with GQ.  I would argue, Hell, I would shout at the top of my lungs, ABSOLUTELY NOT!!!  It is not really possible for A & E to violate his Right to Free Speech.  That is because A & E is not limited by the Constitution regarding the exercise of Free Speech.  Those screaming about the violation of Mr. Robertson’s are pissed because it is their ox being gored.

The Right-Wing neo-Conservative, Teapublicans are bent out of shape because someone big, a corporation like A & E, with lots of media attention, had the audacity to suspend Mr. Robertson for holding an opinion with which the Right Wingers happen to agree.  Throw in the fact that Robertson’s remarks have been cloaked in the veil of religion and the Religious Right is screaming about the protection of Mr. Robertson’s “Rights;” Rights they tend to completely ignore when it happens to be the Left, those Progressive bastards, and it is that much worse to them.

Not too long ago, Right Wing Conservatives got bent out of shape about remarks made by a member of the Dixie Chicks country band when they made statements that called into question then-President George Bush going to war in Iraq.  Need I point out that we went in with the absolute guarantee that it was looking for weapons of mass destruction; none were ever found!  In retaliation for their remarks, the Dixie Chicks had sponsors pull out on them and the public made sure their then-number-ten hit on the country charts dropped off the charts completely in a couple of weeks.  Where was the Right about their Right to Free Speech?  Personally, although I am not a country music fan, I went out and bought their “Wide Opens Spaces” album as a show of support for their position.

In 2012, Ozzie Guillén, then manager of the Miami Marlins, was suspended for five games after making comments supportive of Fidel Castro.  Where was the Right then?  There were no voices from the Teapublicans screaming about Ozzie’s “Rights.”  Hell, they were calling for his head on a platter, and the five-game suspension was not near enough for them.  It is 0kay for a company, like the Miami Marlins, to suspend the manager for making statements with which they agree, but not Mr. Robertson, because they agree with what he says.

Jill Filipovic of The Guardian wrote a rather excellent article, in of all things in a British paper, regarding The First Amendment to The Constitution of the United States.  I invite you to read this article at the link below.

http://www.theguardian.com/commentisfree/2013/dec/20/duck-dynasty-phil-robertson-not-violate-freedom-of-speech?CMP=twt_gu#start-of-comments

I wish to comment further on Ms. Filipovic’s commentary and explain, yet again, to the neo-Conservative, Right-Wing Tepublicans a basic lesson in civics or social studies.  I have already written about the First Amendment, way back in 2011.  You can see my previous comments at:

http://wam18jr.blogspot.com/2011/06/conservative-vs-liberalforce-vs.html

As I always start with, I will, and have, defended with the offer of my life anyone’s Constitutional Rights; that being said, I do not have to agree with the position or opinion of the person offering up the protected speech.  That is my Right as a citizen of a free country.  I can respond to a protected speech by doing anything from boisterously complaining about their position to taking action.  Acceptable actions are things like: not patronizing their business, not patronizing someone that sponsors their business (in this case a reality TV show), not buying their book, not going to their church, refusing to contribute to their political party, and a myriad of other “actions.” 

The key here is the term “protected speech.”  The Constitution of the United States does not protect the people of the United States, referred to in the Constitution as “We the People” from, well, “We the People.”  The Constitution protects us from the Government, not each other.  If you read the First Amendment it says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…”  [Emphasis added].   The Constitution does not say that any person or citizen cannot do anything within the limits of the law to establish a religion or prohibit the free exercise of speech.  The last I checked A & E was not Congress, so there is no Constitutional prohibition for them doing what they feel they must to indicate their displeasure with Mr. Robertson’s remarks.

Let us assume some scenarios that might result if we were prohibited from interfering with each other’s free speech rights.  Your boss, the guy that pays you a paycheck, is a miserable, sniveling coward; let us assume it is an absolute fact, not an opinion (it really doesn’t matter whether it is an opinion or not).  You walk into his office and tell him exactly what he is and why.  I would bet my own paycheck that, all things being equal, you will not have a job in short order. 

See, you do not have a “Right” to tell the boss what is true if the boss does not want to hear it, even if it is true.  You have a right to say it and there can be no consequences from the government, but The Constitution does not protect you from your boss.  Yes, if your boss is a public official and you are a member of his political constituency, an argument can be made that you can tell him he is a schmuck and get away with it, as long as you are acting solely as a citizen, but let us not split hairs too fine.  In a world where you had the absolute, unabridged right to say anything to anyone and it was guaranteed by The Constitution, your boss could not fire you, but we do not live in that world.  If you dare to test the theory, you might become a supporter of extended long-term unemployment benefits and become, God forbid, a Liberal.

If you publish an article that John Q. Public engages in sex acts with sheep, and you cannot prove it, expect to get sued for liable, and probably lose.  Believe it or not, if you are talking about a Senator, you are a lot less likely to have to pay because public officials give up some of their protections by holding elected office.  I am not sure it would work with Senator Sheepskin doing the above.  In the fictitious world where you have a Right to say anything, John Q. could not win in Court.

When the Right finds someone with their viewpoint on the receiving end of “actions” related to their speech, especially religious speech, they are the first to cloak themselves in Old Glory, the First Amendment to the Constitution, all sorts of Civil Rights Laws and scream at the top of their lungs about their “Rights” being violated.  It is a misapplication of the Constitution, the Law and is particularly heinous and atrocious because these same people will happily trample the Rights of others with impunity if the exercise of the same Rights involves a position with which they disagree. 

It all depends on whose ox is being gored.  The hypocrisy is so thick you could cut it with a knife.

Snowden: Hero or Traitor...Federal Judge Weighs In

Well, it’s official, at least one Federal Court Judge, after hearing evidence and allowing both sides to present their case, came to the conclusion that the NSA has been violating the Constitutional Rights of millions, yes, millions, of Americans. After this hearing, he thinks what the NSA is doing in gathering massive amounts of information on Americans is Unconstitutional. I take this judicial determination as a pretty good indication that the point of the legality or illegality of the NSA’s actions is, at minimum, a topic on which reasonable people can disagree, and what the NSA has been doing is a subject to be debated. This debate, much to the chagrin of the NSA, will now occur in the brightest light of day, the sunshine, that light which clandestine operations seek to avoid at all costs. The NSA would much prefer to do what they have been doing for years, apparently; treating us like mushrooms, keeping us in the dark and feeding us B.S.

Edward Snowden released information on NSA spying and that has turned into a firestorm of protest against the NSA, but when we start discussing in terms of what Snowden has done, we must remember some basics about this country we call the United States of America. We were once, as we all should know, a colony of Great Britain. “We The People” decided we didn’t like what the King of England was doing to us and we said, “No more!” We did that in a document called the Declaration of Independence.

If you read the Declaration of Independence, you get past the very poetic, and I believe divinely inspired, language to find that the Declaration becomes a list, a fairly long list, of complaints against the King George III. It was by that Declaration that anyone in the colonies that supported independence became a traitor. They were subject to be tried in the King’s Court, assuming there was a trial, and presumably hanged. We live in a country, like many, that had its beginnings in an act of treason. Interestingly, since we won the Revolutionary War caused by the Declaration of Independence, most of the Founding Fathers avoided being hanged, but they were, at least to the British, traitors.

We now have a situation where many believe Edward Snowden is a traitor and should be charged with treason. Many would actually prefer to skip the trial part after he is charged and just take him out back of the jail and shoot him, but most would at least like a show trial or so-called Kangaroo Court, so we can keep up appearances and feel better about ourselves. Is this sounding like the British and the Revolution?

There is a problem with all this; Snowden may have done nothing more than reported a crime and we do not, or should not, prosecute people that report crimes.  If Edward Snowden is charged and tried, it will not be so much because he violated laws, but because he violated laws made by the people that are engaged in the violation of our Civil Rights.  It may well be an act of civil disobedience against the unjust actions of the government.  More Declaration of Independence stuff, but without the war and formation of a new country....so far.

The government passes laws that say they, the government, have the right to operate in secret to protect "We The People." Using that secrecy, they engage in acts that violate the Rights of "We The People," and now they want to claim that the guy who told us about what they were doing is a traitor because he told us about what they were doing and how they were breaking the law.  This sounds a lot like the list of complaints in the Declaration of Independence.  We told King George we are endowed by the Creator with certain unalienable rights and he is violating them, so we said we will start our own country and government. In the later 18th Century one did not tell the King of England he was doing anything illegal.  By definition the King was the law and therefore could not do anything illegal.  One man's heroic civil disobedience is another man's treason.

Let’s analyze our current situation and, just for the sake of argument, let us assume that the Federal Court was right in what it determined.  The United States Government, through the National Security Agency, engaged in acts that violated the Civil Rights of millions of Americans. The violation of any Right guaranteed by the Constitution and that pesky Bill of Rights, is to commit a crime. If you don’t believe me, check out the following which I lifted from none other than the FBI website through the use of copy and paste:

Title 18, U.S.C., Section 242
Deprivation of Rights Under Color of Law

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties.

( http://www.fbi.gov/about-us/investigate/civilrights/federal-statutes)

So, the NSA was committing a crime and the NSA is an arm of the Federal Government, and it is a pretty powerful arm. Within the “Intelligence Community” the NSA is described as “the agency that reads the CIA’s mail before the CIA gets their mail.”  Here is this one little schmuck, Edward Snowden, who says, “Holy crap, this can’t be legal! I’ll call the police!”  But our friend Edward thinks about it and realizes that he is about to report an illegal activity being committed by the Federal Government. He realizes that he will be silenced and repressed, not necessarily killed in an unfortunate accident, but silenced nonetheless, so he goes to “We The People.” He blows the whistle, to use modern terminology.  Who do you think are the first to brand him a traitor?  Yep, the government.  The “person” committing the crime brands him a traitor and calls it treason to reveal what at least one Judge now says was a violation of our Civil Rights.

Now that a Federal Judge, a man learned in the laws of our country, or so we fervently hope, has said he agrees that what Edward Snowden told us about what the NSA was doing was, and is, illegal, a violation of our Fourth Amendment Right, he has opened a path to what should be a frank and open discussion of what the NSA has been doing to “We The People” and I welcome that discussion.  However, I am not naïve enough to think the Government will let that discussion occur. This will be, like so many different things in our history, obfuscated by the Government. Pressure will be brought to bear, officials influenced and people in that same government that has been screwing with our Rights, will do everything in their power to make sure the discussion never fully sees the light of day. They see us, “We The People,” as the unwashed masses; lowly citizens that could not possibly know what is in our own best interests. In the words of James Taylor, “The man says stand to one side, son, we got to keep this big ball rolling. It's just a question of controlling for whom the bell is tolling.” If ever James Taylor’s song, “Let It All Fall Down” had meaning, it is today, now, and this situation. I recommend you read the lyrics, even if you hate the music.

Personally, I think that Edward Snowden has done a great service to this country and “We The People.” He has revealed that the government has engaged in the violation of the Rights of “We The People.” He has, as our Founding Fathers did, engaged in what one side will call a treasonous act, and the other side will call a great act of heroic sacrifice, but, like our war for independence, I think we will have wait to see who wins.  In the meantime, at least one guy, a Federal Judge, thinks the point has enough merit to make it worthy of discussion and careful consideration.

The Silver Lining to the NSA's Dark Cloud of Surveillance?

I am not a lawyer, but have been accused of being pretty good for never having taken a Bar Exam. As a Private Investigator, I did a lot of criminal defense investigative work. Rarely, I even assisted in the representation of an innocent defendant. Most were guilty, but most were also severely overcharged by the prosecutor, so the trick was to get leverage to get the prosecution to reduce the charges consistent with what the defendant actually did. One of the ways you could prove a client didn't do it, in those rare cases, was providing him with an alibi.

Those of you living under rocks should know that an alibi is based on the concept that a person cannot be in two places at once. If you can prove you were somewhere else you are pretty much not guilty, at least in theory. I had a case that a guy could prove he was 600 miles away and a jury still convicted him, just sayin'.

We now know that the United States Government, The NSA, has data that can track cell phones and determine where they were at any given point in time. Using triangulation of cell towers the cell phone "checks in" or "registers" with, the location can be determined. They can also apparently track the cell phones through the Wi-Fi hotspots the phone registers on. Some of these tracks can give you a location within a hundred feet or so. If you are really interested, check out the following article at the Washington Post.

http://apps.washingtonpost.com/g/page/national/how-the-nsa-is-tracking-people-right-now/634/

You see where I am going with this, right? All you defense attorneys, read further or not if you have already figured this out.

John N'erduwell is charged with a murder that occurred in a specific location on a specific date at a specific time. He tells his criminal defense attorney, Lawyer J. Noble Daggett, Esq., that he wasn't there, he didn't do it and he is not guilty by virtue of his alibi. Lawyer Daggett asks all the necessary questions: Where were you? What were you doing? Who were you with? If there are witnesses to the event and they can testify he was at Joe's Bar and Grill when the victim was killed elsewhere, N’erduwell stands a chance. However, rarely are the witnesses Priests, Nuns, Eagle Scouts or otherwise reputable people.

Unfortunately, N’erduwell hangs out with the kind of people your mother warned you about. They are convicted felons and drug dealers. There is also his mother (who does not believe her son would ever do anything like this and would lie to save him -the prosecutor's closing argument) and his baby-momma (ditto mom). These are generally not credible witnesses, but now, there is an even better way and it will serve multiple purposes.

Lawyer Daggett subpoenas the NSA for the tracking data on N’erduwell's cell phone. He argues, as he will probably have to, that N’erduwell is entitled to this material because it is exculpatory (proves he is not guilty) and, under the law, N’erduwell is entitled and has a legal Right to this material. I think Lawyer Daggett can argue that if this material is not provided, the prosecution must dismiss the charges against N’erduwell. Can't convict a man if the government has information likely to prove the defendant not guilty and refuse to disclose it, right? In fact, there are Court Decisions that require it, Brady vs. Maryland being the primary case. When I was a cop they taught me the following, directly out of the police academy training manual:

Duty to Disclose: The landmark decision of Brady v Maryland (1963) places an affirmative constitutional duty on a prosecutor to disclose exculpatory evidence to a defendant. This duty has been extended to police agencies through case law, requiring law enforcement agencies to notify the prosecutor of any potential exculpatory information.

Exculpatory Evidence/Brady Material: Evidence in the government’s possession that is favorable to the accused and that is material to either guilt or punishment, including evidence that may impact the credibility of a witness.



So Lawyer Daggett has a right to get the NSA's material under Brady. It is kinda hard to argue it is not in the possession of the government if the NSA has it, and you don't know if it will prove the defendant's innocence if no one has looked at it, right? Okay, there are several problems I can think of off the top of my head, but they are not insurmountable.

The information could be "Classified" as "Top Secret" or something, but if it is secret, do we possible send an innocent man to prison or execute him without looking at this information? It is apparently known to the Washington Post and I know they have it, so is it really a secret? We even know how they get the information, so intelligence "sources and methods" arguments are tough to make. Do we take the word of the government, who said they didn't have it to begin with, or the government who said there are WMD's in Iraq? It will, no doubt, be exceedingly difficult to get the data, but if Layer Daggett doesn't get it, it makes for grounds for a very interesting appeal, right? Come on, all you lawyers...right?

Another downside risk that must be impressed on N’erduwell is that if the government actually coughs up the data and it places him at the scene of the crime, it will be another prosecution nail in his coffin, pardon the pun. If the prosecutor actually manages to lay hands on the data and it places N’erduwell at the crime scene, trust me you will see it in Court, I promise, because you will have really, really pissed off the prosecutor, and the Justice Department, the NSA, the CIA and a bunch of alphabet soup operations we don't even know about. Hell, you might even get nebulized back to the 6th grade by MIB.

The prosecutor is going to argue that the track is not that of N'erduwell, it is merely the track of the cell phone and there is no guarantee that it is N’erduwell’s. The argument here is:

1.      The phone is in N’erduwell’s name,

2.     Prove N’erduwell paid the bill each month, debit or credit card or (LOL) with a check,

3.     Bring in witnesses that know N’erduwell ALWAYS has his cell phone on him,

4.     Bring in witnesses that spoke to N’erduwell on the day of the offense.

5.     Get his cell phone records and find out who he spoke to, or use the cell phone call log and contact list to determine who he spoke to. You can also find out by reverse tracking the phone numbers, if necessary, or you can ask the NSA…LOL

All of this information can establish that N'erduwell spoke to people from that number  before the murder and spoke to people from that number after the murder, maybe even during the murder. By inference, it is probably his cell phone.

Now, Lawyer Daggett wannabes, if they say you can't have the data, the existence of which has been published in the Washington Post, you might just have that case that gets you before the Supremes. You will also have a name for yourself, although possibly as a nutball and likely a HUGE pain in the A**! You also might have the practice you always wanted with ginormous retainers. Remember that investigator that found out Mark Furman used the "N-word on tape after he testified he had never uttered the word? All he did was answer a phone, get a subpoena and serve it. His office is now a box seat at a baseball park because he makes so much money. His attorney team didn't do so bad either. O.J., not so much.

Well, I am just thinking here, but I would welcome input from all you licensed, Bar-card carrying lawyer types as to why I am wrong. Any of you lawyers who use the material, do me a favor and just give me a footnote mention, or send a few bucks my way....LOL

See you in Court!

© 2013 William A. Miller

Marco Rubio: Call 'em Like You See 'em...If You Don't See 'em, Make 'em Up!

Marco Rubio, the Junior Senator from Florida, speculative leader of the Teapublicans in the Senate and, God help me, my representative in the U.S. Senate, has once again, basically lied to us. 

The particular lie being told by Senator Rubio is, “On this very day in Florida, it was announced that 300,000 people are going to lose their individual coverage because of Obamacare.” He made this statement to that bastion of political truth (please note the dripping sarcasm) Fox News and to, of all people, Bill O’Reilly, a man with the objectivity of the likes of Rush Limbaugh, Marc Levin and Michelle Malkin (she works for Fox too,but that’s for another time….)

This statement, and a number of others,  has been confirmed by Politifact Florida as being "Mostly False" (see: http://www.politifact.com/florida/statements/2013/oct/25/marco-rubio/marco-rubio-said-florida-300000-people-are-going-l/ .  Allow me to summarize.

Yes, 300,000 customers of Florida Blue, the corporate successor to Blue Cross/Blue Shield of Florida, have been notified that that their existing policies are being cancelled…Well, not exactly.  Their policies are being replaced.  This is because the policies they currently hold do not meet the requirements of the law.  In other words, they are going to get better, more inclusive and cheaper policies, so the policies meet the requirements of the Affordable Care Act, A/K/A: Obamacare, but before that happens they are being notified that the existing policies are not going to be continued.

One of the things that bothers me most is that those who are ideologues and of similar ilk to Senator Rubio will adopt these statements as Gospel and sound the war cry, regardless of the accuracy of the statements this liar makes.  It is consistent with their version of reality, so it must be true.  I am not much for Biblical quotations, but when confronting the Teapublicans such a quotation is too good to pass up, ‘Hear now this, O foolish people, and without understanding; which have eyes, and see not; which have ears, and hear not.” (Jeremiah 5:21).

Senator Rubio is just doing what a lot of politicians do, telling people what they want to hear.  He tells them lies they want to believe.  The problem is that once you tell them “the rest of the story” as Paul Harvey would say, they still believe it to be the truth, thus the applicability of the Biblical quote.  To continue along the same lines  a quote from Ron Popeil, “But wait, there’s more…”

Let us list other lies that have been told to us by Senator Rubio…

"I never was in favor of shutting down the government. … (I) voted to fund the government fully."  In fact Rubio voted on nine, yes nine, separate occasions to vote against bills that would have kept the government open.  He just refused to vote yes on any bill that did not defund Obama Care.  The result is the same, he voted in a way that was directly responsible for shutting down the government, regardless of how he chooses to try to massage the facts.

"The American people support defunding Obamacare and oppose shutting down the government."  Well, actually, no they don’t.  Polls have consistently found, since 2011, that the American People do not want to defund Obamacare, especially if it might result in some sort of drastic action such as…wait for it….shutting down the government!  Most Americans have adopted a wait and let’s see if this works attitude, now that it has passed.

Enough examples…let me just say that if Marco Rubio opens his mouth to say “Good morning” I tend to look out the window and expect to see rain.  I am not interested in someone that appeals to the psychotic base of his party without regard for anything resembling truth and integrity.