Wednesday, December 22, 2010

Torture in America

Yesterday, Judge Ruben Castillo in the Northern District of Illinois issued a shocking opinion that details allegations of tactics employed by the City of Chicago police department that clearly meet the definition of torture, putting our lawyered-up, Bush-era CIA "interrogators" to shame.

Joe Miller loses again.

Here is the order. It rejects everything that Mr. Miller argued in trying to set aside his loss to Alaska Senator Lisa Murkowski. Fans of Bryan Garner will note that all the citations are in footnotes. Presumably Judge Richard Posner will not be happy with this citation style. The Gillette Torvik blog has yet to weigh in on the issue. Probably because arguments over proper citation form are inimical to our duty to make sparks fly.

Tuesday, December 21, 2010

Suggesting judges should be killed is a bad idea.

Thomas Jefferson once wrote, “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure.” However, suggesting three particular “patriots & tyrants” should be killed, posting their pictures, work addresses, and maps to the addresses on the internet will get you 33 months in prison. That is the lesson we learned from Hal Turner’s sentencing today.

Mr. Turner, the subject of a brief post by Mr. Torvik and occasional informant for the FBI, was annoyed with a unanimous decision made by Seventh Circuit Judges Richard Posner, Frank Easterbrook, and William Bauer last year. The decision upheld a (since-overturned) handgun ban in Chicago and some of its suburbs.

In response to the ruling, Mr. Turner wrote a blog post. In the post, Mr. Turner quoted the same Jefferson quote I mentioned. However, according to an ABA Journal post, Mr. Turner then added: “It is time to replenish the tree! Let me be the first to say this plainly: These judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.” The New York Times reports that Mr. Turner also wrote, “If they are allowed to get away with this by surviving, other judges will act the same way.”

In case people did not get Mr. Turner’s point, he went on to refer to the murder of husband and mother of United States District Court Judge Joan LefKow. Mr. Turner wrote, “Apparently, the 7th U.S. Circuit Court didn't get the hint after those killings,” and, “It appears another lesson is needed.”

Mr. Turner was charged and, after two mistrials, convicted of threatening to assault and murder the three judges with intent to retaliate against them for performing their official duties. At his sentencing, Mr. Turner continued to demonstrate a poor grasp of the concept that one catches more flies with honey than vinegar. North reports that while speaking for almost an hour, Mr. Turner claimed that the judge engaged in “legal skulduggery” over the jury instruction as to what constitutes a threat. Mr. Turner, also called the trial a “three-ring circus.” Then, having sufficiently insulted the person imposing the sentence, he asked for probation. While the prosecution asked for a six-year sentence, Judge Donald E. Walter imposed a 33-month sentence. Mr. Turner, unsurprisingly, plans to appeal.

What do you think Mr. Torvik, is 33 months an appropriate sentence for writing threats on a blog? Does it matter that Mr. Turner’s words went unheeded, or at least unacted on, by every American? How intimidated could the three judges have been if none of them requested security as a result of the threats (and did not even testify at the first of the three trials)?

It seems to me that Mr. Turner should have followed the lesson learned by Hunter S. Thompson when he was threatend with prosecution for suggesting that then Vice-President Bush be stomped to death by a crowd of Marquette University students. Instead of threating to kill a public official, just suggest that they be placed naked in a room with an "angry, horny, acid-crazed elk."

Auburn is in the national title game, therefore we can't have a trial in early January.

As the Wall Street Journal's law blog notes, Birmingham, Alabama attorney Michael Mulvaney brought a successful motion in federal court in the Southern District of Alabama to ensure that a case he was litigating would not be tried around the time of the BCS National Championship game. As the post notes, he included pictures of his children wearing Auburn apparel "for manipulative purposes only." In granting the motion, Judge Kristi DuBose included in her order a picture of her daughter also wearing Auburn apparel. No word as to whether Oregon lawyers have filed similar motions.

Monday, December 20, 2010

A deal on judges means winners and losers

The AP reports that Republicans and Democrats in the Senate have made a deal on judicial nominations, "after a monthslong blockade."  As you note, Judge Susan Nelson in Minnesota is a beneficiary of this deal.  Among the sacrificial lambs, however, appears to be Louis J. Butler, in Wisconsin. 

You may recall that Butler was previously appointed to the Wisconsin Supreme Court but failed to retain the seat in one of the most hotly contested (some might say vicious) judicial campaigns in memory.  His nomination to fill a vacancy in the Western District of Wisconsin angered conservatives, who thought a life-tenure judgeship was too rich a consolation prize for someone who'd been rejected by Wisconsin voters.  Their opposition appears to have won the day. 

Marijuana laws take a hit in Montana.

The war on drugs took an interesting turn in Montana this week. According to the Billings Gazette, members of a jury pool in a Missoula County District Court made it clear they would not convict someone for possessing a small amount of marijuana.

Sunday, December 19, 2010

AP: "Random Breath Test Yields 43 Pounds of Ecstasy"

That is a lot of Ecstasy to keep in your breath.

It is about time.

The Senate finally confirmed Susan Nelson's appointment to the federal bench.

Sunday, December 12, 2010

Friday, December 10, 2010

Bill Clinton is back in the White House

You may have heard that President Obama and former President Clinton staged an impromptu press conference today, after they spent some time chatting about Obama's recent tax-cut compromise with Republicans.  In short:  the Clinton approves.

Here are some random musings:

1)  I love this picture -- does Clinton look like a kid in a candy store or what?

2)  I can't help thinking of Clinton as kind of like the Randy Quaid character in the National Lampoon Vacation movies.  Especially "Christmas Vacation" -- where he shows up in the RV, and just won't leave.  As you can see in the next picture, Obama eventually had to leave because he, you know, had "a thing":

3)  Obligatory:  HIDE THE INTERNS!!!!

4)  This little behind-the-scenes article about the press conference is very West-Wingy.

Sex by surprise?

I'll confess I haven't been following the manhunt relating to WikiLeaks founder Julian Assange very closely.  I knew that he was wanted for some kind of sex crime in Sweden. And I noticed that he had been arrested in England. But my interest wasn't really piqued until I noticed the headlines and blurbs that seemed to imply that his alleged crime is "sex by surprise."

Sex by surprise‽  Supposedly, the offense had something to do with a broken condom, which somehow constitutes a sex crime in crazy Sweden.

But apparently not.  According to an op-ed by Jessica Valenti in the Washington Post, at least, this "sex by surprise" thing was made up by Assange's lawyer in an attempt to belittle the seriousness of the charges:
Let's get this out of the way: Sweden does not have a "broken condom" law. WikiLeaks founder Julian Assange was not arrested because his contraception failed mid-coitus. Nor is he charged with "sex by surprise."
* * *
The allegations against Assange are rape, sexual molestation and unlawful coercion. He's accused of pinning one woman's arms and using his body weight to hold her down during one alleged assault, and of raping a woman while she was sleeping. In both cases, according to the allegations, Assange did not use a condom. But the controversy seems to center on the fact that both encounters started off consensually. One of his accusers was quoted by the Guardian newspaper in August as saying, "What started out as voluntary sex subsequently developed into an assault." Whether consent was withdrawn because of the lack of a condom is unclear, but also beside the point. In Sweden, it's a crime to continue to have sex after your partner withdraws consent.
So, thankfully, it appears that "sex by surprise" is not necessarily a crime in Sweden or anywhere else.  Merry Christmas, everyone!   

Perfect spelling not required

According to the Juneau Empire, an Alaska state court has rejected Joe Miller's attempt to require that the only votes for Lisa Murkowski which spelled her name perfectly be counted. One would like to believe that this will end this inane recount. Given that Miller, as reported by the AP, initially claimed that Alaska should not count votes that correctly spelled Senator Murkowski's name but did so last name first, I doubt it will.

Thursday, December 9, 2010

Indiana attorneys should not beat people up.

One might think that one of the benefits of going to law school would be that law students learn the law and are thus able to avoid breaking it. Not everyone takes full advantage of that benefit. Take, for example, this former Kokomo, Indiana city attorney.

Wednesday, December 8, 2010

And then there was one.

As of yesterday, the United States had two statewide elections that had not been resolved: the gubernatorial election in Minnesota and a United States Senate election in Alaska. These elections were similar in some ways. Both involve margins small enough to mandate a recount. Both also involve significant percentages of people voting for a candidate who wasn't on the ballot as a Republican or a Democrat (although, Alaska's third candidate is, in fact, a Republican). Both elections also involve fewer ballot challenges than the margin of victory. Where these elections differ is in how the loser is handling the fact that it appears impossible for them to win.

In Minnesota, Republican Tom Emmer conceded defeat today. One reason that this concession occurred today is that, yesterday, the Minnesota Supreme Court issued its written opinion explaining why Mr. Emmer's theory of how one counts voters is, to put it mildly, wrong. Voting precincts do not need to count the signatures on the voting registry to determine if the number of votes equals the number of voters. Precincts can simply compare voting receipts to ballots cast.

The other reason Mr. Emmer conceded is that he couldn't come up with 8,700 challenged ballots for the canvassing board to review. After the canvassing board (which includes two sitting Minnesota Supreme Court justices) chastised Mr. Emmer's legal team (which includes a former Minnesota Supreme Court chief justice) about making frivolous challenges, Mr. Emmer withdrew almost all his challenges. Faced with a mathematical impossibility, Mr. Emmer conceded.

That is not how they do things in Alaska. Up north, Republican Joe Miller is continuing his fight in the election he lost to Lisa Murkowski, the incumbent Republican Senator he beat in the primary. After losing the primary, Senator Murkowski decided to run a write-in campaign and became the second person in 60 years to win a write-in campaign for the Senate.

Mr. Miller's strategy for the recount, one that seems perfectly reasonable given Senator Murkowski's last name, was that only ballots that correctly spelled her name should count. However, as the Los Angeles times notes, this strategy is failing because there were fewer misspellings than Senator Murkowski's margin of victory. Some people would find this an insurmountable problem. Those people are not Joe Miller. As the article notes, part of Mr. Miller's argument is that Ms. Murkowski had an advantage because votes for were counted by hand while votes for Mr. Miller were counted by machine. This is the first time I have ever heard that write-in candidates actually have an advantage in elections. It will be interesting to see if that sort of counter intuitive argument can carry the day.

Monday, December 6, 2010

Probably a mistake?

As part three of our ongoing series on phone calls made by wives of Supreme Court justices, Ginni Thomas has decided that calling Anita Hill was "probably" a mistake. Sadly, the article doesn't mention when this particular insight came to Ms. Thomas.