What Law?

"The Supreme Court on Monday ended the practice of sentencing juveniles to life imprisonment with no chance of parole for crimes short of homicide, the latest in a series of milestone decisions in which Justice Anthony Kennedy and four liberals have joined to set constitutional curbs on punishment. ... 'Life in prison without the possibility of parole gives no chance for fulfillment outside the prison walls, no chance for reconciliation with society, no hope,' Justice Kennedy wrote. ... Justice Clarence Thomas dissented, joined in full or in part by Justices Antonin Scalia and Samuel Alito. Justice Thomas said the majority reached 'far beyond any cogizable constitutional principle ... to ensure that its own sense of morality and retributive justice pre-empts that of the people and their representatives'," Jess Bravin at the WSJ, 18 May 2010, link:

http://online.wsj.com/article/SB10001424052748703315404575250263178132480.html.

I agree with Thomas. "Life in prison" no matter the period, "gives no chance for fulfillment outside the prison walls" during the period. So? This sounds tautological to me. You too can be a Supreme.

America's Coming Gulag

"The Supreme Court said Monday that the federal government can keep 'sexually dangerous' prisoners in custody past the completion of their sentences, overruling arguments that only states hold such power. The vote was 7-2, with Justices Anotnin Scalia and Clarence Thomas in dissent. ... In dissent, Justice Thomas wrote that the majority gave Congress too much leeway", my emphasis, Jess Bravin at the WSJ, 18 May 2010, link:

http://online.wsj.com/article/SB10001424052748703315404575250220873756964.html.

Amazing. Will the Supremes next rule that "financially dangerous' prisoners can be held before their sentences end? Who determines one is "sexually dangerous"? A flak chosen by the (In)Justice Department? This ruling is appalling. I'm sure Stalin is smiling on reading it.

Magic Words

"The term 'social justice' is now commonly used by leftist activists, clergy, educators, judges, and politicians to describe the goal they seek to achieve with many of their polcies. No precise definition of 'social justice' is ever offered by the left. Instead, the term is always used in a vague way--as if everyone already knows, or should know, what the seemingly well-intentioned phrase 'social justice' means. ... In short, social justice is communism. ... 'Justice,' in the Marxist context, means economic equality. This is Marxist utopian ideal that all members of society should receive the same amount of compensation, regardless or occupation, skill, or work ethic", Jayme Sellards at American Thinker, 16 May 2010, link:

http://www.americanthinker.com/2010/05/what_exactly_is_social_justice.html.

"You might think that being a Supreme Court justice would be the top of the line job for someone in the legal profession. But, many Supreme Court decisions suggest that too many justices are not satisfied with their role, and seek more sweeping powers as supreme policy-makers, grand second-guessers or philosopher-kings. ... The role of an appellate court is not to simply second-guess the decision of the trial judge and jury, much less usurp the responsibility of legislatures to make social policy. But the pretense of applying the Constitution gives appellate judges the power to do both. ... If justices can pick and choose which legal principles and practices they will follow, from the many widely varying principles and practices in countries around the world, then they can find a basis for doing just about anything they feel like doing. ... Once appellate judges are free to base their rulings on what people do in India, Egypt or Germany, Americans are no longer a self-governing people", Thomas Sowell at Frontpage Magazine, 24 May 2010, link: http://frontpagemag.com/2010/05/24/judicial-power-grabs/

"Ever wonder why most of your credit-card mail comes from South Dakota? The answer is a 1978 Supreme Court decision called Marquette National Bank on Minneapolis v. First of Omaha Service Corp. ... The Court ruled that it referred to the location of the bank. ... What happened next was predicatble enough: Citibank offered to move to South Dakota, bringing much-needed jobs and tax revenue, if the state would let it write new credit-card regulation. ... If the Supreme Court had interpreted one word differently, credit-card regulation in this country would be entirely different. ... Bruce Ackerman, a legal scholar at Yale ... [said] 'For sure ... the status of undocumented aliens is going to me mcuh more salient in Americna law. We're going to have 10 [million] or 15 million people or more who'll find themselves in a position increasingly like black people in 1954. That will be a terribly serious issue, and the court will have to decide how to respond.' ... 'What happens when promised benefits are cut back dramatically?' he asked. 'Will the court protect the weak, or not?'," my emphasis, Ezra Klein at Newsweek, 24 May 2010, link: http://www.newsweek.com//id/238075. This reminds me of my meeting Al Sharpton in 1966 or 1967, my 5 March 2009 post: http://skepticaltexascpa.blogspot.com/2009/03/eric-holder-deceiver.html.

Many times I've said the Supremes do whatever they want and justifiy it later. I await Justice Ginsburg's using Saudi Arabian law as precedent. Will she say it is neither cruel nor unusual to cut off a thief's hand?

Aren't you impressed by Ackerman's reasoning? Negroes in 1954 were American Citizens. The 14th Amendment was created to ensure they were citizens. How dare you claim the same rights for illegal aliens? See, we are all legal scholars now. Why will the Supremes have to decide anything with respect to illegal aliens? What happens when taxes are increased? Will the court protect the solvent, or not? Aren't you impressed with legal reasoning? Wait, there is an answer! Have the Supremes decide no person need pay anything to support illegal aliens. Based on what? Extending the reach of the Third Amendment. Why should American citizens "quarter" members of the Aztlan Army?

Why 8-1?

"In a defense of free speech by both liberal and conservative justices, the Supreme Court struck down a federal law banning depictions of animal cruelty, dismissing claims that gruesome animal films had no constitutional protection. ... 'As a free-floating test for First Amendment coverage,' [John Roberts] wrote, the government's argument is startling and dangerous.' ... But in this case, the court saw clear evidence of overreaching legislation that broadly banned an entire category of speech. ... The case sparked wide interest, with animal-rights groups and more than half the states filing friend-of-the-court briefs backing the law. Publishers, civil liberties groups and hunting organizations took the other side. ... Lawmakers reasoned that by making illegal the creation, sale or possession of such videos, they could remove the financial incentive to make them. ... Chief Justice Roberts, however, wrote that child pornography was a 'special case' and that other forms of speech could not be banned based on 'a simple cost-benefit analysis.' ... 'Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.' ... In his dissent, Justice Alito wrote that like child pornography, crush videos were inextricable from the underlying crimes,, and banning the depiction was a way to prevent the abuse", Jess Bravin at the WSJ, 21 April 2010, link:

http://online.wsj.com/article/SB10001424052748704448304575195912729681780.html.

I don't know what a "simple cost-benefit analysis" is. The "analyst" can load it any way he wants. Alito said he doesn't like crush videos. So? What's Alito's theory? Is a crush video viewer an aider-abettor, co-consipirator, accessory after the fact? This decision should have been 9-0. Haven't the states anything better to do with their police and courts than worry about crush videos? We have too many cops and district attorneys.

Kennedy on Prisons

"Justice Anthony Kennedy spoke out against excessive prison sentences this month in California, criticizing the state's deeply misguided three-strikes law. It was a welcome message, delivered with unusual force. ... Sentences in the [US] are eight times longer than those handed out in europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. ... Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one. The law's sponsor, he said, is the correctional officers' union, 'and that is sick.' ... Under the three-strikes law, a man named Gary Ewing was sentenced to 25 years ot life for shoplifting three golf clubs from a golf pro shop. ... It's not that the court is insensitive to excessive punishments. It has repeatedly thrown them out--when they are against corporations", NYT, 16 February, 2010, link:

http://www.nytimes.com/2010/02/16/opinion/16tue3.html.

I believe California incarcerates about 168,000 prisoners at $62,500 each per year. That said, it's too many. Three-strikes law was imposed on convenience store thieves, who took three 75 cent candy bars. California's taxpayers can spend $62,500 a year for 25 years over a $2.25 theft! Amazing.

He Don't Need No Law Degree

"Shon R. Hopwood ... spent much of that time in the prison law library, and it turned out he was better at understanding the law than breaking it. He transformed himself into something rare at the top levels of the American bar, and unheard of behind bars: an accomplished Supreme Court practitioner. ... The court received 7,209 petitions [in 2002] from prisoners and others too poor to pay the filing fee, and it agreed to hear just eight of them. One was Fellers v [US]. 'It was probably one of the best cert. petitions I have ever read,' said Seth P. Waxman, a former [US] solicitor general who has argued more than 50 cases in the Supreme Court. 'It was just terrific.' In January 2004, Mr. Waxman called Mr. Hopwood at the federal prison in Pekin, Ill. They had won a 9-to-0 victory. Justice O'Connor wrote the opinion. ... The law library changed Mr. Hopwood's life. ... By 2005, the Supreme Court had granted a second petition prepared by Mr. Hopwood, vacating a lower court decision and sending the case back for a fresh look. Mr. Hopwood has also helped inmates from Indiana, Michigan and Nebraska get sentence reductions of 3 to 10 years from lower courts. ... Mr. Hopwood now works for a leading printer of Supreme Court briefs, Cockle Printing in Omaha. ... Mr. Hopwood, who is 34, said he hoped to apply to law school next year", Adam Liptak at the NYT, 9 February 2010, link:

http://www.nytimes.com/2010/02/09/us/09bar.html.

Hopwood wants to be a lawyer now That argues against his being rehabilitated. Does he want to work for Mary Jo White in New York? Look out!

Why Only 5-4?

"Virginia Hernandez Lopez admitted to knocking back two shots of tequila with Sprite chasers on an August night in Julian, Calif., a couple of years ago. But she said she was not drunk when her Ford Explorer collided with an oncoming Toyota pickup truck later that night, killing the driver. In May, a California appeals court affirmed Ms. Lopez's conviction for vehicular manslaughter. Her blood-alcohol level two hours after the accident was, according to a report presented to the jury, just over the legal limit of .08 percent. But the appeals court reconsidered the case after a decision in June from the [US] Supreme Court that prohibited prosecutors from introducing crime lab reports without testimony from the analysts who prepared them ... But now, in an unusual move, the Supreme Court will hear arguments on Jan. 11 in a new case that raises questions about how lower courts may carry out its six-month-old precedent. Many state attorneys general and prosecutors are hoping the court will overrule its decision in the earlier case, Melendez-Diaz v. Massachusetts, before it can take root, saying it is a costly, disruptive and dangerous misstep. ... Since the Melendez-Diaz case, the State of Massacusetts told the [US] Supreme Court last month that it now faces 'daunting volumes of cases to manage'," my emphasis, Adam Liptak at the NYT, 20 December 2009, link: http://www.nytimes.com/2009/12/20/us/20scotus.html.

This is a disgrace, the case should have been a 9-0 no-brainer. The Sixth Amendment seems clear enough to me. Prosecutors don't like having their "oath helpers", sorry, "experts" cross examined. Why? "Costly, disruptive and dangerous" boo-hoo. No one should believe anything a prosecutor's expert says. Roberts and Alito apparently have reading comprehension problems. But they went to Ivy League law schools. So did Obama. Hahahahahahaha.

PCAOB Apologists

"The legality of a federal board that oversees accounting firms was debated before the Supreme Court on Monday, with conservative justices suggesting that the board enjoys more independence from the president than the Constitution permits. ... During oral arguments, conservative justices including Antonin Scalia noted that the president's control over the accounting board is limited because the board answers to all five independent commissioners of the SEC, not just the chairman. ... Because of its power to initiate investigations into accounting firms, the board can take 'actions that have devastating consequences for the regulated bodies,' said Chief Justice John Roberts. ... Jeffrey Lamke, the attorney representing the [PCAOB] .... said the president has the same control over the board as he does over everything else that falls under the SEC's jurisdiction. 'Which is nothing,' said Justice Scalia. Several former SEC chairman and accounting-industry groups support the current setup of the accounting board", my emphasis, Fawn Johnson and Jess Bravin at the WSJ, 8 December 2009, link: http://online.wsj.com/article/SB126020055598680141.html.

If the AICPA and Big 87654 support the PCAOB, how much has it improved investor protection since 2003? Remember the AICPA, Big 87654 and SEC all supported CPA "peer review". I await the PCAOB barring a Big 87654 firm from further practice in front of the SEC.

I found a 21 July 1993 piece by Janice Shields, who was then an Associate Professor of Accounting at Bloomburg University titled, "Bad Audits ... Not Deep Pockets" about the Big 6's auditing failures. Nothing has improved since 1993. Here's a link: http://www.enronwatchdog.org/PDFs/bad_audits.pdf.

Freeman on Sarbox

James Freeman (JF) blasts Sarbox at the WSJ, 7 December 2009: http://online.wsj.com/article/SB10001424052748704431804574539921864252380.html. JF notes, "On the other hand, news of potential relief from the law pushes up American stock prices. That's not a vote of confidence from the people supposed to benefit from the law". No it isn't. Cost-benefit analysis anyone? Nah, just say the mantra, "internal controls good. Lack of internal controls bad".

"As the CEO of a small bank, I know first-hand that internal and external audit costs for Sarbox compliance can easily reach six figures. ... The questions the [SEC] should be asking are: Would any of these accounting and disclosure regulations help discover or prevent the massive big bank and Lehman Brothers failures or AIG's near collapse? Do small companies under the SEC represent the real risk to our financial system and economy? I suspect the answer is a resounding no", Allen Sterling letter to the WSJ, 16 December 2009: http://online.wsj.com/article/SB10001424052748704869304574596441223615728.html.

Yes Sterling.

Laverntiy Beria in the US

"Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained. ... 'It's a remarkable phenomenon,' said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers [NACDL]. 'The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.' ... Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws. ... 'The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,' Mr. [Dick] Thornburgh said. 'Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the [NACDL], the ABA, the Cato Institute, the Federalist Society and the ACLU.' In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the 'liberal ideas of extending the power of the state' were to blame for an out-of-control criminal justice system. 'Our tradition has always been,' he said, 'to construe criminal laws narrowly to protect people from the power of the state.' ... Such so-called overcriminalization is at the heart of the conservative critique of crime policy. ... Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, 'Three Felonies a Day: How the Feds Target the Innocent,' has gotten in conservative circles. ... Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states. ... 'Conservatives now recognize the economic consequences of a criminal justice leviathan,' said Erik Luna, a law professor at Washington and Lee University. ... 'Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,' said Douglas A. Berman, a law professor at Ohio State University", my emphasis, Adam Liptak at the NYT, 24 November 2009, link: http://www.nytimes.com/2009/11/24/us/24crime.html.

Federal criminal law re-evaluation is long overdue. Chief Justice Rehnquist complained of criminal law's over-federalization about 30 years ago. "Conservative" Supremes, Roberts and Alito come "down consistently on the side of the government in these criminal justice cases," said Cato's Timothy Lynch. I can't stand those two. Roberts makes my skin crawl. Here's a post about Silverglate's book, 18 October 2009: http://skepticaltexascpa.blogspot.com/2009/10/three-felonies-day.html.

PCAOB Attacked!

"From the marbled corridors of Congress to the tony salons of Georgetown, liberal lawmakers are abuzz with ideas of how to rein in US corporations. Yet over in the courts, two conservative lawyers are mounting a serious challenge to a law, enacted earlier in the decade, that imposed tough restrictions on American businesses. A ruling in their favor could deal a serious blow to the pro-regulatory movement in Washington. ... The two are representing Brad Beckstead, the head of a small auditing firm in Henderson, Nev., who is suing the [PCAOB], the panel created by SarbOx to make sure auditors are doing their jobs. Beckstead says the PCAOB picked apart his business in a grueling 2004 audit. 'I became the poster boy for what not to do when auditing small companies,' he says. The cost of complying with the rules was so great, he claims, that he had to abandon his auditing practice. ... A finding for Beckstead could reopen the entire Sarbanes-Oxley Act. Some board defenders fear a victory for Beckstead could even shake the foundations of established bodies such as the [Fed]. 'The implications are potentially far-reaching,' says Gillian Metzger, a Columbia law professor who is supporting the PCAOB board in filings with the high court. ... In Beckstead, [Michael] Carvin and [Noel] Francisco are taking on their boldest challenge yet. The PCAOB was estalished as an independent nonprofit largely to let it pay market wages for its workers rather than civil servant salaries and to shield it from political influence. In 2004 seven PCAOB auditors descended on Beckstead & Watts to pore over its practices. The result was a detailed report listing deficiencies based on the SarbOx rules. Beckstead penned a spirited response, but he says the cost of complying was too great and he had to shut down his auditing practice", my emphasis, Theo Francis at Businessweek, 30 November 2009, link:

http://www.businessweek.com/magazine/content/09_48/b4157040803359.htm.

"Congress wants to wallop business with even more regulation in the wake of the financial panic, but perhaps the Members should pause of Monday and visit the Supreme Court. The justices will hear arguments on whether major portions of the last great Congressional overreaction, the 2002 Sarbanes-Oxley Act, are constititional. ... At iuuse is whether the ... PCAOB, which supervises compliance with the law, violates the Constitution's separation of powers. Under the Appointment's Clause, all 'officers' of the [US] must be appointed by the President and accountable to him--a condition PCAOB members do not meet. ... The dissenter on the DC Circuit Panel, Judge Brett Kavanaugh, called the case the most important separation of powers case in 20 years and said the appeals court had created a constitutional hash. Though the PCAOB 'performs numerous regulatory and law enforcement functions at the core of the executive power,' he wrote, for the first time in US history we have an independent agency whose heads are appointed by and removable only for cause by another independent agency.' ... The accounting board's wide-open mandate--to make whatever rules 'may be appropriate in the public interest or for the protection of investors'--has cost the economy nearly $1 trillion according to a study by the AEI and the Brookings Institution. The benefit is supposed to be investor protection. But despite these costs, the law did nothing to warn about the meltdown of mortgage-backed securities, much less expose Bernie Madoff or other fraudsters. ... As the Supremes now take their turn, the case has implications the regulation-loving press corps hasn't notices. A decision to uphold the PCAOB would open the door for Congress to create any number of equally unaccountable regulators across the economy. However, a ruling against the PCAOB could bring down the whole law because Sarbox does not have a 'severability clause,' which means that if one part goes down, the entire law may be invalidated", WSJ Editorial, 4 December 2009: http://online.wsj.com/article/SB10001424052748704107104574571662869948676.html.

"Regarding 'These Men Could Kill SarbOx' ... : I hope SarbOx is eliminated. It certainly didn't help control Bear Stearns, Lehman, and numerous failed banks. If the [PCAOB] cannot prevent financial collapses of that magnitude, why should public corporations have to spend millions of dollars to adhere to useless 'control' mechanisms?", Joseph D.Agostin letter to Businessweek, 14 December 2009.

The Big 87654-staffed PCAOB defends the Big 87654's cartel. In 1998 or 1999 I computed the SEC registrant audit industry's "Herfindahl Index", to be 3,700, above the DOJ's 1,800 excessive industry concentration guideline. Well, DOJ, will you bust up the Big 87654? The PCAOB in substance, gives "former" Big 87654 partners semi-retirement sinecures. Seven PCAOB goons at Beckstead! How many multibillion-dollar market cap registrants did Beckstead audit? I applaud the Jones Day lawyers work here. Sarbox did not "impose tough restrictions" on American business. It just increased SEC registrants' paperwork. Securities, wire and mail fraud were criminal before Sarbox. 1977's Foreign Corrupt Practices Act had a "books and records" provision. Sarbox did nothing for investors. The PCAOB exists "to make sure auditors are doing their jobs"? Says who? Even the Big 87654? The PCAOB is shielded from "political influence"? Says who? Is the Fed? Or the FASB? Is the PCAOB's "parent", the SEC?

Members? As the term used in Shakespeare's time? May the Supreme's kill this monster.

Why indeed?

What Precedent?

"In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law. ... Sotomayor sggested that the majority might have it all wrong--and that instead the court should reconsider the 19th century rulings that first accorded corporations the same rights flesh-and-blood people have. Judges 'created corporations as persons, gave birth to corporations as persons,' she said. 'There could be an argument that that was the court's error to start with... [imbuing] a creature of state law with human characteristics.' ... Originally, corporations were a relatively rare form of organization. ... 'A corporation is an artificial being, invisible, intangible,' wrote Chief Justice Marshall in an 1819 case. 'It possesses only those properties which the charter of its creation confers upon it.' ... Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg. 'A corporation, after all, is not endowed by its creator with inalienable rights,' Justice Ginsburg said, evoking the Declaration of Independence", Jess Bravin at the WSJ, 17 September 2009, link: http://online.wsj.com/article/SB125314088285517643.html.

What? I've held to Ginsburg's comment for decades. I would like to see the "Ginsburg-Sotomayor" bloc win this one and overturn what I believe to be 100 years of bad law.

The "Economist" Stubs Toe

"All night they battled. Hispanic inmates on one side, blacks on the other, they smashed glass to use the shards as knives and ripped off pipes for bludgeons, burning down part of the prison and injuring hundreds. The riot on August 8th-9th was not the first and won't be the last in California's dreadful prison system. ... [Chino] is also one of the prisons that are currently trying to implement a 2005 ruling by the Supreme Court that inmates must not be segregated by race. ... In the last three decades, California's penal system 'has gone from one of the best to one of the worst in the world,' says Joan Petersillia, an expert on prisons at Stanford Law School. ... But in 1976 California decided to switch from 'indetermnate' to 'determinate' sentencing. The first system, emphasizing rehabilitation, gives a lot of discretion to parole boards, who can reward good behavior and also help with overcrowding by reducing inmates' prison time. Determinate sentencing, on the other hand, reflects a philosophy of deterrence and means that prison time is relatively fixed, whether an inmate behaves well or badly", The Economist, 13 August 2009, link: http://www.economist.com/world/unitedstates/PrinterFriendly.cfm?story_id=14222337

At least the Economist noted Hispanic and black gangs in Chino went at it. In 1976 California had about 21.5 million residents, now about 38.5 million. California became a "minority-majority" state in those 33 years. The change to determinate sentencing was motivated by some of the same factors behind 1986's federal sentening guidelines, i.e., to increase sentencing uniformity. We in Texas have indeterminate sentencing, and I think it a disaster. I consider our Board of Pardons and Paroles (BPP) a nest of incompetence and corruption. Except for one convicted of a three-strikes crime or murder, a California inmate is generally released after serving 2/3rds of his sentence. In Texas, with a few exceptions, the BPP can release an inmate after he serves 11.9% of his sentence. Guess what that leads to. Despite population increases, a change in ethnic composition and three-strikes, California did not build more prisons. That's why it now houses 168,000 prisoners in facilities built for 85,000. That this disaster was coming was obvious years ago.

Madoff and Stoneridge

"The court-appointed official in charge of recovering money for Bernard Madoff's investors is suing his wife Ruth, for at least $44.8 million, claiming she lived a 'life of splendor' on the gains from the fraud perpetrated by her husband. Irving Picard, the court-appointed trustee, alleged that 68-year-old Ruth Madoff [RM] 'knew or should have known' that vast sums of money she recieved from heer husband's investment firm, Bernard L. Madoff Investment Securities LLC, rightly belonged to the firm and to her husband's customers. ... Federal investigtors recently concluded there is no physical evidence that Mrs. Madoff actively participated in or concealed her husband's fraud, according to people familiar with the situation", Patrick Fitzgerald at the WSJ, 30 July 2009, link: http://online.wsj.com/article/SB124889554637990959.html.

I hope RM wins her case on a 12-b6 motion. Why? Under Stoneridge, RM has no liability, my 26 January 2008 post: http://skepticaltexascpa.blogspot.com/2008/01/supreme-injustice.html. Under cases like Halberstam, she would.

Wait Listed by Jail-9

"California state and local officials already reeling from budget cuts and public-safety layoffs, are struggling with a federal order to release about 40,000 inmates to reduce prison overcrowding and bracing for the impact on their communities. State officials have said they will appeal the decision, but as a contingency are cobbling together proposals to comply with the order. At the same time, cash-strapped local governments in places such as Los Angeles and Fresno are grappling with how to monitor and support thousands of released inmates at a time of scaled-down police forces and underfunded social-services programs. ... California Attorney General Jerry Brown has said he plans to appeal to the US Supreme Court. ... It is unclear how officials will execute the court's decision. The California Department of Corrections and Rehabilitation said it is working on proposals to reduce the prison population, but those plans need to be approved by the legislature. If the state doesn't comply with the order, it could be held in contempt and fined. ... The department suggests deporting illegal-immigrant inmates and allowing some low-level offenders to serve the final year of their sentences under house arrest. In addition, the state would reduce sentences of inmates who complete prison rehabilitation programs. ... Some local governments say they are unsure how they will support new parolees and an influx to their county jails at a time when their own budgets have been hit by the recession and the state's financial woes", Bobby White and Ryan Knutson at the WSJ, 7 August 2009, link: http://online.wsj.com/article/SB124960115104312757.html.

The waiting list for jail keeps growing. Now is California's "Hour of Decision", as Billy Graham would say. Free the prisoners!

Free the Prisoners!

"The Anti-Drug Abuse Act of 1986 was one of Congress's more notable efforts to get tough on drugs. ... Unfortunately, the law was rooted in ignorance about crack's potency, how the drug trade actually worked--and even about the cause of [Len] Bias's death. He actually died from an overdose of powder--not crack-cocaine. ... Why are the penalties for crack and powder so disparate? Largely because legislators were told--and believed--that small-time crack dealers were somehow on a par with big-time powder dealers, recalls Eric Sterling, former counsel to the House Judiciary Committee. ... Sincce 1995 the Sentencing Commission has been trying to set things straight--partly because the law makes no sense and partly because it has hit black communities particularly hard. More than 80 percent of federal crack prosecutuions are of African-Americans, despite evidence that crack use is only slightly higher among blacks than among whites or Hispanics. ... The Supreme Court ... in 2007 ... noted the absurdity of hitting crack dealers harder than the cocaine distributors who supplied them. ... Congress, [Sterling] points out, never intended that so many precious federal resources go toward prosecuting small-time crack dealers", my emphasis, Ellis Cose at Newsweek, 20 July 2009.

Crack prosecutions are like SEC and DOJ white collar criminal prosecutions, the feds prosecute nobodys. Obama can do something now. He can end this nonsense. How? Pardon 1,000 small-time crack dealers. This will subtly tell the DOJ: ignore future crack cases. Let the states prosecute. Instead Obama shills for Skip Gates. Apparently "His" class solidarity trumps "His" race solidarity.

Diversity and the Navy

"'Naval Academy Professor Challenges Rising Diversity,' ran the headline in the Washington Post. The impression left was that some sorehead was griping because black and Hispanic kids were finally being admitted. ... 'Of the 1,230 plebes who took the oath of office at the Naval Academy [NA] in Annapolis this week, 435 were members of minority groups. It's the most racially diverse class in the nation's 164-year history. Academy leaders say it's a top priority to build a student body that reflects the racial makeup of the Navy and the nation.' ... According to [Bruce] Fleming, who once sat in the board of admissions, white applicants must have all As and Bs and test scores of at least 600 on the English and math parts of the SAT to even qualify for a 'slate' of 10 applicants, from which only one will be chosen. ... If true, the US [NA] is running a two-tier admissions system of the kind that kept Jennifer Gratz out of the University of Michigan and was declared unconstitutional by the Supreme Court. 'Minority applicants with scores and grades down to the 300s and Cs and Ds also come through after a year at our taxpayer-supported remedial school, the [NA] Preparatory School.' ... Yet, Chief of Naval Operations Adm. Gary Roughhead and the Superintendent of the [NA] Vice Adm. Jerry Fowler seem quite proud of what they are doing. ... 'First of all, we're dumbing-down the [NA],' charges Fleming. 'Second of all, we're dumbing down the officers corps.' ... 'Diversity is our number one priority,' Roughhead is quoted. Can one imagine Adm. Chester Nimitz or 'Bull' Halsey making an insipid statement like that? Can one imagine what Adm. David 'Damn the torpedoes! Full speed ahead!' Farragut would have thought of such a policy?", my emphasis, Pat Buchanan, 6 July 2009, at http://www.worldnetdaily.com/index.php?pageId=103293.

"Diversity is our number one priority". Is that from 1984? Is the US Navy Orwell's Ministry of Peace? Remember, "War is Peace; Freedom is Slavery; Ignorance is Strength". That's our Navy's motto today. Fowler and (misnamed) Roughhead are "metrosexual officers", see my 2 December 2008 post: http://skepticaltexascpa.blogspot.com/2008/12/security-and-specialization.html.

The Supremes Win One!

"Last week, the US Supreme Court issued a significant ruling, one that upholds the right of a criminal defendant, during trial, to confront the analyst who prepared a forensic report if the prosecution plans to use that report as evidence. ... But many prosecutors, and the court minority, complained that it would place undue strain on forensic analysts and prosecutors", Editorial at the Houston Chronicle, 1 July 2009.

This case should have been another no-brainer, 9-0 decision. The sixth amendment gives us this right. What copy of the constitution do Kennedy, Roberts, Breyer and Alito have? Was the page with the sixth amendment missing? Prosecutors and forensic analysts lack of integrity used to amaze me. It hasn't in years. What they are really afraid of is: "The CSI Effect", jurors being able to spot faulty science and poor evidence handling. Jurors looking at tests performed and wondering why other tests weren't. Imagine, our Supremes came up with Daubert in 1993. What a joke.

The Supremes Strike Out

"Convicts have no constitutional right to DNA testing, the Supreme Court found, a ruling that left the accessibility of potentially critical evidence to the discretion of individual states. ... But the opinion, by Chief Justice John Roberts [JR] drew a sharp distinction between defendants, who are presumed innocent at trial, and convicts like William Osbourne, who was sentenced to 26 years imprisonment for kidnapping, raping and shooting an Alaska prostitute in 1993. 'A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man,' Chief Justice Roberts wrote, adding that it remains an 'open question' whether 'proof of "actual innocence"' is enough to overturn a conviction after a fair trial. ... Justice Stevens wrote that the state had refused to provide access to the evidence even though the burden was minimal", Jess Bravin and Jennifer Forsyth at the WSJ, 19 June 2009, link: http://online.wsj.com/article/SB124533135682627425.html.

"The US Supreme Court ruled Thursday that former Enron broadband executive Scott Yeager cannot be retried on lingering charges because a jury in 2005 acquitted him of others related to the same alleged scheme. ... Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented, citing precedent that a retrial on counts on which a jury hung in a first trial is a part of the same prosecution, so protection against a second trial on the same allegations doesn't apply", Kristen Hays, at the Houston Chronicle, 19 June 2009, link: http://www.chron.com/disp/story.mpl/special/enron/broadband/6486253.html.

"In an appalling 5-to-4 ruling on Thursday, the Supreme court's conservative majority tossed aside compelling due process claims, the demands of justice and a considered decision by a lower federal appeals court to deny the right of prisoners to obtain post-conviction DNA testing that might prove their innocence. ... Writing for the majority, Chief Justice John G. Roberts Jr. noted the 'unparalleled ability' to prove guilt or innocence using DNA evidence. But he treated that breakthrough more as an irritant than an oppotunity. ... As Justice Stevens noted in his dissent, 'There is no reason to deny access to the evidence and rthere are many reasons to provide it.' ... We are also puzzled and disturbed by the Obama administration's decision to side with Alaska in this case", my emphasis, Editorial at the NYT, 19 June 1009, link: http://www.nytimes.com/2009/06/19/oinion/19fri1.html.

I opposed JR elevation to Supremes believing him a spoiled, unscrupulous child of privilege. This is the "Supremes" worst decision since Kelo. If proof of actual innocence isn't enough, what is JR? A writ from the Master himself? What did JR learn at Harvard Law School: to play word games. I hope on judgment day you are sent to Dante's Ninth Circle of Hell. JR and Alito making this decision, did not surprise me. That Thomas and Scalia exhibited such contempt for facts is shocking. I see the issue this way: In substance, SUBSTANCE, remember the law respects substance over form, Osborne moved for a new trial based on new evidence, an improved DNA test. Osborne offered to pay for the test with his own money. Alaska says no deal. If I were a Federal District Court judge hearing a habeas corpus case, I would release Osborne. Why? The best evidence rule, Clifton v. US, 11 L ed 957, 960 (1846), "The meaning of the rule is, ... no evidence shall be admitted, which, from the nature of the case, supposes still greater evidence behind in the party's possession or power". My presumption: Kenneth Rosenstein, Alaska Assistant Attorney General will not submit Osborne's DNA to a jury because it's already been tested and would exonerate him. What's JR's problem? Osborne be a "niggah" and ain't got no rights. JR, you disgust me to elevate "due process" whatever that means over substance. To call the trial "fair" begs the question. The Supremes here are just playing word games.

I agree with Scalia, Thomas and surprisingly Alito. JR switched sides on this case despite clear precedent. Why? JR saw Yeager is a white boy. Yeager may even be a Hogan & Hartson client. Further, by establishing this precedent, who knows who else JR can protect on Wall Street?

"Chief Justice" JR? That's an oxymoron if I ever read one. A problem with DNA evidence is: it is scientific and less susceptible to manipulation than words, a lawyers stock in trade. As science encroaches on the law, lawyers lose influence. A terrifying prospect for JR, a master word manipulator. Obama's failure to intervene in Osborne surprised me too. Did showing solidarity with fellow Harvard Law grad JR trump Obama's showing racial solidarity with Osborne?

I disagreed with the Supremes decision today in an employment discrimination case, that's three today.

Death of Bankruptcy Law

"The US Supreme Court on Tuesday cleared the way for Chrysler LLC to exit bankruptcy court, lifting a stay on its proposed sale to a group including Italy's Fiat SpA. ... But the order is a setback for a group of Indiana pension funds and others who maintained the government's heavy-handed treatment of creditors in the case could chill private lending to distressed firms and alter the rules of bankruptcy reorganizations. ... Thomas Lauria, a White & Case [W&C] lawyer who led the legal challenge, said his experiences in the past month 'cause me to ... directly raise the question as to whether our judiciary is today able to fulfill its constitutional mission, that is, to ensure that the rule of law prevails--particularly in the face of perceived crisis.' ... The brief stay imposed by the high court on the Chrysler transaction shocked the administration Monday, provoking concerns that the White House's approach to restructuring the two firms [Chrysler and GM] might have been built on faulty legal logic", my emphasis, Mark Anderson & Neil King at the WSJ, 10 June 2009, link: http://online.wsj.com/article/SB124453532783397365.html.

"A government lawyer labeled him a terrorist. A top adviser to Chrysler LLC called him ridiculous. ... Late Tuesday, the court turned down the attorney's 11th-hour appeal on behalf of some Indiana pension funds. But Mr. Lauria, whom friends and foes alike say is tenacious to a fault, is likely to remain a thorn in the side of the administration's automotive task force. A hodgepodge of General Motors Corp. bondholders have asked him to represent them in a challenge to GM's bankruptcy filing. ... When the court cleared the way for the Chrysler sale, Mr. Lauria said he was disappointed, and added: 'I think it's pretty interesting that you can have a transaction as big as this, that impacts parties' rights as broadly as this, and no matter how hard you try, you can't get a substantive review from an appellate court.' ... Mr. Lauria's notoriety grew when he appeared May 1 on a Detroit radio station and said the administration had 'directly threatened' one of his clients, Perella Weinberg, and would use the White House press corps to 'destroy' his client. The firm and the White House denied the allegation, and Mr. Lauria eventually stopped commenting on it. ... As for Mr. Lauria, he says his experiences of the last month 'cause me to worry that there is something very wrong with the system'," my emphasis, Jeffrey McCracken and Neil King at the WSJ, 10 June 2009, link: http://online.wsj.com/article/SB124459032127399999.html.

"Judge Robert Drain ordered Delphi to hold an auction and allow bids to challenge the government-brokered sale to Platinum Equity. ... The ruling is a victory for a group of hedge funds that stand to lose 80% or more of their about $2.5 billion in debtor-in-possession, or DIP financing. ... The Delphi case is the latest in a debate over the administration's attitude toward creditors' rights in bankruptcy court. The federal government has been criticized in the Chrysler and General Motors Corp. bankruptcies for upending bankruptcy tradition and harming senior lenders in order to complete a transaction. 'The rule of law and commerical rights of lenders cannot bend in the face of political forces,' said Marc Abrams, a lawyer at Wilkie Farr & Gallagher LLP representing a group of hedge funds, in court Wednesday. ... Virtually all of Delphi's remaining assets--including its Troy, Mich. headquarters--would be sold to Platinum Equity, a Beverly Hills, Calif.--based private equity firm specializing in distressed companies. ... Platinum Chief Executive Tom Gores said in a statement his firm is 'uniquely equipped' to steady Delphi. 'Struggling companies need partners with strong operational capabilities, a deep understanding or their business and a track record of creating real value,' he said. ... Lenders argues that Platinum is a puppet of the government, which needs Delphi to emerge from bankruptcy for its GM bailout to succeed. ... Delphi's plan calls for some DIP lenders, including the most sentior creditors owed about $2.5 billion, to receive 20 cents on the dollar for their loans. ... 'A DIP loan should be money good,' said Mr. Abrams, whose clients include Silver Point Finance LLC and Monarch Alternative Capital LP. 'It's the T-bill of a bankruptcy claim'," my emphasis, Peter Lattman at the WSJ, 11 June 2009, link: http://online.wsj.com/article/SB124466769259803489.html.

POTUS Obama apparently missed Harvard's bankruptcy law class, not knowing of the absolute priority doctrine. Our "constitutional scholar", Obama uses "faulty legal logic"? Never. These are the last days. I agree with a W&C lawyer. Imagine, Obama was "shocked". What a scholar. I wonder what Sonia Baby's opinion is of this case or Elizabeth Warren's.

Way to go Lauria! If you need help making Molotov cocktails, call. Wow, a "White Shoe" law firm partner, like one in W&C, throwing Molotovs. Next Lauria will quote Kropotkin. The US rule of law is collapsing. Book suggestions: No Contest, by Ralph Nader and Wesley Smith, 1998 and Main Justice, James McGee, 1997. Lauria, how does it feel to be unable to get a meaningful appellate review? Welcome to the real world.

Wow, another "white shoe" law firm sees POTUS Obama's contempt for the law. I await the aggrieved parties taking real action. Like having PE partners march around the White House. They can probably find veterans of 1968's Paris Days of Rage, if they need help in planning the demonstrations. Well Eric Holder, Columbia law grad, have you anything to say about this? Or will you have the army fire on the protestors like 1932's "bonus army"? Will we face a "Yeltsin Moment", like in 1991, when Russian troops refused to fire on old Boris? Stay tuned! I last commented on Delphi on 11 October 2008, link: http://skepticaltexascpa.blogspot.com/2008/10/delphi-update-3.html. See also my 27 August 2008 comments, link: http://skepticaltexascpa.blogspot.com/2008/08/delphi-plot-thickens.html.