Forget Endangered Species, Border Security is the Most Important

June 23, 2008


The Supreme Court on Monday turned down a plea by environmental groups to curb the Bush administration’s power to waive laws and regulations to speed construction of a fence along the U.S.-Mexican border. Homeland Security Secretary Michael Chertoff has used his Congress-given authority to ignore environmental and other laws and regulations to move forward with hundreds of miles of fencing in Arizona, California, New Mexico and Texas. Earlier this year, Chertoff waived more than 30 laws and regulations in an effort to finish building 670 miles of fence along the southwest border. Administration officials have said that invoking the legal waivers, made possible when Congress authorized it in 1996 and 2005 laws, will cut through bureaucratic red tape and sidestep environmental laws that stand in the way of fence construction.

As of June, 13th, 2008, 331 miles of fencing have been constructed in California, Arizona, New Mexico and Texas, but this specific case involved a two-mile section of fence in the San Pedro Riparian National Conservation Area near Naco, Arizona, which has since been built.

Congressman Thompson who chairs the House Homeland Security Committee 13 other House democrats (including six other committee chairs) filed a brief in support of the environmentalists’ appeal.

Congress failed to pass comprehensive immigration reform when it had the chance in 2007.

Thompson said, “Without a comprehensive plan, this fence is just another quick fix.”

Environmentalists have said the fence puts already endangered species such as two types of wild cats – the ocelot and the jaguarundi – in even more danger. The fence would prevent them from swimming across the Rio Grande to mate.

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Supreme Court Questions the Right to Self-Representation

June 19, 2008

The Supreme Court ruled Thursday that a state has the right to prevent a possibly schizophrenic defendant from serving as his own lawyer in a criminal court.

The justices concluded, 7-2, that trial judges had discretion to take “realistic account” of an Indiana man’s mental capacities in the case of self-representation.

At issue is whether the fundamental right of an accused person to represent himself or herself applies to those whose are competent enough to stand trial, but perhaps not enough to plead their own defense.

The state wanted a higher standard of competency for those representing themselves than for those standing trial with the help of a lawyer.

“The trial judge,” wrote Justice Stephen Breyer for the majority, “will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.”

Thursday’s case dealt with Ahmad Edwards, charged with attempted murder and battery with a deadly weapon relating to a 1999 incident in which he fired shots after trying to steal shoes at a downtown Indianapolis department store. He fled but was eventually cornered by an FBI agent, who shot him when he refused to surrender.

Over the next few months various psychiatrists offered conflicting conclusions on whether he had schizophrenia, and state criminal courts went back and forth as well over his competency to stand trial and to represent himself.

Edwards was eventually found competent to stand trial, and in June 2005, with the help of standby lawyers, was convicted on charges of criminal recklessness and theft. Standby lawyers are appointed by the court to advise defendants who represent themselves, and can step in if defendants change their mind.

In Edwards’ case, the judge was forced to declare a mistrial on two other counts — attempted murder and battery with a deadly weapon — on which the jury could reach no decision.

During a second trial, Edwards again insisted on representing himself and had his attorneys removed. But the trial court ruled that Edwards, though competent to stand trial, lacked the additional capability required to conduct a defense. With defense attorneys present, he was convicted of the remaining two counts.

He appealed those convictions. They were overturned when Indiana agreed that his right to represent himself had been violated.

In dissent, Justice Antonin Scalia called the ruling “extraordinarily vague,” saying it gives little guidance to trial courts. And he warned judges “have every incentive to make their lives easier” by denying a defendant’s wish to be his own lawyer. Scalia was supported by Justice Clarence Thomas.

The Supreme Court has generally upheld the right of self-representation, but Justice Samuel Alito spoke for many of his colleagues in March oral arguments. “It is the rare case in which a lay defendant can adequately represent himself or herself,” he said. “Where do you draw the line?”

Edwards’ appellate attorney told the justices that standby trial counsel could assist someone like Edwards, and even take over the case if the trial descended into chaos or incoherence.

The Bush administration supported Indiana in the Edwards appeal. “To force the state to have the train wreck occur” would be wrong, Deputy Solicitor General Michael Dreeben told the high court. “This judge did the responsible thing.”

The Indiana case was cited by a defense lawyer in the recent arraignment of five suspected high level al Qaeda terrorists being held in a U.S. military prison at Guantanamo Bay, Cuba. Accused 9/11 mastermind Khalid Sheikh Mohammad and his fellow defendants asked a military judge they be allowed to represent themselves in court.

Original story found @ CNN.COM

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Obscenity, Porn, or Art On Trial

June 11, 2008


What violates community obscenity standards in the nation’s reputed pornography capital? Federal prosecutors think they know it when they see it.

Ira Isaacs readily admits he produced and sold movies depicting bestiality and sexual activity involving feces and urine.

The judge warned potential jurors that the hours of fetish videos included violence against women, and many of them said they don’t want to serve because watching would make them sick to their stomachs.

“It’s the most extreme material that’s ever been put on trial. I don’t know of anything more disgusting,” said Roger Jon Diamond — Isaacs’ own defense attorney.

The case is the most visible effort of a new federal task force designed to crack down on smut in America. Isaacs, however, says his work is an extreme but constitutionally protected form of art.

“There’s no question the stuff is disgusting,” said Diamond, who has spent much of his career representing pornographers. “The question is should we throw people in jail for it?”

Isaacs, 57, a Los Angeles advertising agency owner who says he used to market fine art in commercial projects, calls himself a “shock artist” and says he went into distributing and producing films about fetishes because “I wanted to do something extreme.”

“I’m fighting for art,” he said in an interview before his federal trial got under way. “Art is on trial.”

He plans to testify as his own expert witness and said he will cite the historic battles over obscenity involving authors James Joyce and D.H. Lawrence.

One of his exhibits, he said, will be a picture of famed artist Marcel Duchamp’s “Fountain,” a porcelain urinal signed by the artist in 1917.

Diamond said Isaacs also will tell jurors the works have therapeutic value for people with the same fetishes depicted on screen.

“They don’t feel so isolated,” Diamond said. “They have fetishes that other people have.”

Isaacs makes a brief appearance in one of the videos he produced; others that he distributed were imported from other countries.

The business has been lucrative. At one point, he has said, he was selling 1,000 videos a month at $30 apiece. Then his office was raided by agents who bought his videos online with undercover credit cards.

The government obtained an indictment against Isaacs on a variety of obscenity charges, including importation or transportation of obscene material for sale. Prosecutors have declined to comment about the case.

Jean Rosenbluth, a former federal prosecutor and law professor at University of Southern California, said such prosecutions were rare until the creation of the U.S. Department of Justice Obscenity Prosecution Task Force. Child pornography cases are handled by a separate unit.

“The problem with obscenity is no one really knows what it is,” she said. “It’s relatively simple to paint something as an artistic effort even if it’s offensive.”

The test of obscenity still hinges on a 1973 U.S. Supreme Court ruling which held that a work is not legally obscene if it has “literary, artistic, political or scientific value.”

Jurors also are asked to determine whether the material in question violates standards of what is acceptable to the community at large.

“This task force was quite controversial and many in the Department of Justice felt that it was a waste of resources,” Rosenbluth said. “Because of the pressure, they seem to have chosen the worst cases they can find to prosecute.”

Each of the four counts against Isaacs carries a five-year maximum prison sentence. Prosecutors also are seeking forfeiture of assets obtained through his video sales. Two of the original six counts were dropped.

“A lot of this is about sending a message — `Don’t make this stuff. Don’t put it on the Internet. We don’t want it here,”‘ Rosenbluth said.

Rosenbluth said prosecutors would be emboldened to pursue similar cases if Isaacs is convicted, though there would be lengthy challenges on appeal.

In an unusual twist, the trial is being presided over by the chief judge of the 9th U.S. Circuit Court of Appeals, Alex Kozinski, under a program that allows appellate judges to occasionally handle criminal trials at the District Court level. Kozinski is known as a strong defender of free speech and First Amendment rights.

Eight men and six women were chosen for the jury Tuesday. Two will be designated alternates later. The panel was to hear opening statements Wednesday before viewing the movies.

When jury selection began Monday, he urged prospects to be open about their opinions and incurred an onslaught of negative statements. Within the first hour, he dismissed 26 men and women who said they could not be fair to the defendant because they were repulsed by the subject matter. By day’s end, half the panel of 100 had been excused.

“I think watching something like that would make me physically ill, nauseous,” said one woman. “It’s affecting me physically now just thinking about it.”

One man fired angry comments at the ponytailed Isaacs.

“Hearing stuff about feces made me sick and the defendant looks like my ex-business partner who did some of these things. He looks guilty as sin to me,” said the man. “It turns my stomach thinking about it.”

Several prospects marched up to the judge’s bench for private conferences when he told them that the films also involved violence against women. They, too, were excused, as were several who cited their religious beliefs.
Asked how long they would have to watch the movies, Kozinski told them it would be about five hours and “I will be there watching with you. This is part of the job we’re doing.”

This story was originally found @ CNN.COM

The story continues here as the Judge suspends trial.

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We Don’t Need No Stinkin’ Warrants

April 23, 2008

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The Supreme Court offered unanimous support for police Wednesday by allowing drug evidence gathered after an arrest that violated state law to be used at trial, an important search-and-seizure case turning on the constitutional limits of “probable cause.”

The Supreme Court unanimously gave police broader powers to search for and seize evidence.

“When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety,” Justice Antonin Scalia wrote.

David Lee Moore was stopped by Portsmouth, Virginia, officers five years ago for driving his vehicle on a suspended license. Under state law in such incidents, only a summons is to be issued and the motorist is to be allowed to go. Instead, detectives detained Moore for almost an hour, arrested him, then searched him and found cocaine.

At trial, Moore’s lawyers tried to suppress the evidence, but the state judge allowed it, even though the court noted the arrest violated state law. A police detective, asked why the man was arrested, replied, “Just our prerogative.”

While some of the justices expressed concern about that level of discretion at oral arguments in January, their 9-0 ruling raised few such doubts.

“The arrest rules that the officers violated were those of state law alone,” Scalia said. “It is not the province of the Fourth Amendment to enforce state law.”

The state had argued an arrest is constitutionally reasonable if officers have probable cause to believe a suspect has committed a crime. “This standard represents the best compromise between the needs of the citizens and the duty of the government to combat crime,” Stephen McCullough, Virginia’s deputy solicitor general, had told the high court.

But Moore’s attorney, Thomas Goldstein, called an “extreme proposition” the idea that it would be reasonable “to go out and arrest someone for a non-arrestable offense and not only do that, but having committed that trespass at common law, to further search them.”

There has been widespread judicial confusion over how such police searches should be handled. Some lower courts had ruled that when state arrest law is violated, the Constitution provides a remedy in the suppression of any evidence resulting from the arrest and a related search.

But the justices agreed with the majority of courts that said constitutional requirements are satisfied when an officer has probable cause to make an arrest, even if some provision of state law was violated in the process.

Justice Ruth Bader Ginsburg wrote a concurring opinion suggesting Virginia change its law to make driving on a suspended license an arrestable offense.

During arguments, Ginsburg spoke for several colleagues when she pointed out that if a summons had been issued in Moore’s case, any incriminating evidence would have been excluded. “Would you explain the logic to saying that when the police violate state law, then the evidence can come in, but when they comply with state law, it can’t,” she asked.

The ruling means Moore’s original jury conviction and 3-½ year prison term will stand.

This story was found @ CNN.com

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