Friday, December 25, 2009

The Word, Reasonable. Christmas Greeting from the Supremacy, and Why this Holiday is so Important to the Lawyer, even the Non-Believer

The word reasonable is the central word of American jurisprudence. Does it carry its dictionary meaning? Is its meaning ever clearly delineated in law school? Does it refer to the behavior of someone with good common sense? The answer to those is, no. If any of these meanings were to be used, they would cause a mistrial. This commentary is addressed to the most atheistic, anti-religion lawyers possible.

Man fell from Eden. This Fall made his intellect subject to being misled by temptations, deadly sins, emotions, some very negative. So logic and intellect are not useful guides to moral decision making.

Reason has a specific meaning in the world of Scholasticism. St. Thomas Aquinas was its most prominent philosopher. Henry of Bratton was a student. He wrote the case book, from which English and American law emerged almost fully formed.

To those two, reason is the human faculty that perceives God. Thomas goes to a great length to show the New Testament is the sole, reliable guide to righteous, moral decisions.

In technical Scholasticist terminology, reasonable refers to conduct guided by the New Testament, a book about the life, thoughts, and acts of Jesus Christ.

The reasonable person is a fictitious character and must be fictitious. He is Jesus Christ. And his standards of due care and conduct violate the Establishment Clause of this secular nation. That illegality is the reason the word is never defined in law school, nor anywhere else legal.

Merry Christmas to the lawyers. You should celebrate this day because it holds a very special meaning to the lawyer.

Wednesday, December 23, 2009

Pharmaceutical Executive Speaks Out Against Animal Rights Terrorists

This is a moral duty. He has paid a high personal price.

Many patient direct action groups should be formed. These would be family members of patients who benefit from technology, including that tested on animals. They would bring the fight to the terrorists and all left wing enemies of clinical care. They would beat them, burn them out, then kill those who do not learn. These terrorists are threats to the survival of their loved ones. Killing them has full moral justification. It should be done during the commission of a terrorist act, to preserve a possible legal justification.

From USA Today, "CEOs may feel under attack like never before, but few have experienced it like Dan Vasella, CEO of Switzerland-based pharmaceutical giant Novartis (NVS).

This past summer, animal rights activists went to his hometown village and painted "murderer" on the church. A week later, they desecrated the graves of his sister and parents. Then they set fire to his Austrian vacation home. Most CEOs respond to loud criticism by staying quiet, but Vasella, 56, decided to go public and do media interviews and lobby for tougher law enforcement throughout Europe. He spoke to USA TODAY corporate management reporter Del Jones about what leaders should do when anger crosses the line. Following are excerpts edited for clarity and space.

Q: What do you get from confronting enemies? You're not going to change their minds.

A: You win public support. With that, you can achieve anything. Without public support, you cannot achieve anything.

Q: This Q&A makes no attempt to determine right and wrong in animal testing debate. But aren't you helping activists by giving them the soapbox they desire?

A: I don't believe so. It's my duty as a citizen to speak up when illegal actions take place. Suffering in silence doesn't help anybody. You have to stand up. You have to fight for something. If everyone remained silent, then the people who are violent would prevail.

Q: Other drug companies have not fought this so publicly. Aren't you putting a bull's-eye on Novartis?

A:No. If others duck to stay off the radar, that's a bad recipe.

Q: CEOs in a variety of industries have told me that they get anonymous threats through the mail and elsewhere. Should they go public?

A: The general advice that security departments give is: Don't respond, don't react, and we'll handle it. In the U.K., police are much more active than in continental Europe. There was a bomb case in the U.S. a few years ago, and the FBI became active, but that activity passes by when nobody dies. My advice to others is to be cool and react with logic, be prudent, take precautions, but do not panic and be afraid. Be willing to engage (with activists) if they have a point, if it's appropriate. We've engaged with Greenpeace and with Médecins Sans Frontières International (Doctors Without Borders). But sometimes their objective is to create fear and uncertainty, a terroristic attempt at psychological tension.

Q: Are CEOs wrong when they file a police report but stay quiet?

A: In many instances, that may be right, but I think there is also a line which one has to draw. It's a judgment call. It should be a deliberate decision and not an emotional one. In my case, people understood because what happened was so outrageous.

Q: If you were to do it over again, would you do anything differently?

A: I would go public earlier, immediately. We should have done more to engage politicians and the press in making them aware what was going on, because we need the public to understand.

Q: Has your response done anything to stop the behavior of your antagonists?

A: It's calm right now, but I don't think that they have changed in any way their fundamental attitude and actions. We have more support on the political side in continental Europe. Changing laws is a multiyear process, but we have never encountered so much support as now.

Q: Where do yet get your courage?

A: If I ever came home from school and said I felt unfairly treated by a teacher, my parents never said the teacher was right. They said: You have to stand up and defend yourself. You occasionally prevail. That gives strength inside, which not everyone had the luck to experience.

Q: If CEOs went more on the offensive, would they have to worry about the safety of themselves and family?

A: I don't. There was a period when I was more alert, a normal reaction. Now we are conducting our lives as we used to. Of course, there are security measures that have been taken, but you can never protect everything.

Q: If you were the leader of the animal rights group, what would you do differently to get your point across and cause change?

A:You put me in a difficult position to argue for them. Certainly, any criminal actions won't lead to success in the long term. The only way to proceed is to engage in dialogue."

Judge Rejects Necessity Defense of Killer of Abortion Doctor

Necessity sometimes can trump the Constitution. It was designed to save lives, and not to allow individuals to impose a policy change on their own. The judge may have gotten his additional evidence had the homicide taken place during the abortion of a viable fetus. The killer should have researched the law. No attorney could have advised him on setting up the defense of a homicide better.

From USA Today, " A judge ruled Tuesday that Kansas law doesn't allow a so-called "necessity defense" in the trial of a man charged with killing one of the nation's few late-term abortion providers.

The decision was another blow to lawyers for 51-year-old Scott Roeder, who has confessed to shooting Dr. George Tiller on May 31 and says it was necessary to save "unborn children." Roeder listened intently, at times twiddling his thumbs nervously under the defense table, as the judge gave a lengthy recitation of case precedents that mostly undermined that contention.

In his ruling, Judge Warren Wilbert cited a 1993 criminal trespassing case involving an abortion clinic in which the Kansas Supreme Court said that allowing a person's personal beliefs to justify criminal activity to stop a law-abiding citizen from exercising his rights would "not only lead to chaos but would be tantamount to sanctioning anarchy."

But he noted that the 1993 case dealt only with a property rights issue, whereas the case involving Roeder has elevated the argument to whether it is justified to take one life for another.

"That is certainly not a position I want to be in -- because I am not God," Wilbert said.

The judge said he has heard enough evidence to anticipate what might be presented at trial. He noted abortion is legal and told attorneys he found it difficult to consider the shooting of Tiller in the back of a church on a Sunday morning, with no overt act by Tiller himself, as an act spurred by an imminent threat of death or bodily harm."

Tuesday, December 22, 2009

Statute Drafting is Human Experimentation. New Statutes Should be Thoroughly Pilot Tested.

Every current and proposed statute should be proven safe and effective, or be void. Safe and effective is at the core of due process. So a law imposing the death penalty for witchcraft violates Fifth Amendment Due Process.

First, prove a harm from a crime, either physical, economic, or permanently emotional. Merely upsetting acts are protected by the First Amendment. Peeing in the street would be harmful, in generating cleanup costs, spreading disease, etc. Private prostitution produces mutual benefit, pleasure and earning. If the person objects to forced prostitution, that is covered by kidnapping and enslavement laws. Consent should remain a defense.

Second, prove that criminal sanctions reduce the rate and the cost of harm to a greater extent than the cost of enforcement, and apply the least restrictive sanction. If a torts approach can be shown to work, enable that in the statute. So if speeding must end, does a police car in the bushes reduce the average speed on the road, or does a speed camera, generating emailed fines to all speeders reduce the average speed? Prove that a reduction in the average speed results in a benefit, such as fewer accidents. Prove that the value of the accidents prevented exceeds that of the enforcement camera and that of the total of the fines collected.

Third, test each law, its enforcement methods, and unintended consequences in small jurisdictions. They apply to a state. If still effective and beneficial, then make the law federal or mandatory in every state by the usual constitutional methods.

Lastly, set out the dose-response curve. If a remedy is too small or weak, it does not work. If it is excessive, it becomes toxic. For example, I would boycott the shops on the road with the automatic speeding tickets. We want to find out that bankrupting effect when tried at the county level, and not after the remedy is national.

Saturday, December 19, 2009

The Problem of Innocence in the Death Penalty Debate. Legitimate or Pretextual?

Abolitionists use the rate of innocence on death row as a justification to suspend the death penalty. Governors have suspended the death penalty due to this problem of innocence.

Failure of Criminal Procedure

The idea of executing an innocent person is abhorrent. It represents the failure of the lawyer management of the criminal law. The lawyer is using 13th Century methods and Rules of Evidence. It is possible, no trial has any scientific validity. Daubert standards do apply to the criminal trial. Biggest myth? The adversarial process is a method to reach an answer to a problem. That is from Scholasticism and the 13th Century. There are no reliability statistics, let alone validation statistics for the criminal trial.

To compound the problem of the peole later found innocent, about a quarter had falsely confessed. For all we know, they may even have believed they were guilty after a working over by the police. Even confessions have no validity.

Inconsistency of Abolitionists

If the death penalty should stop because of the rate of innocence, then so should all other procedures with flaws. The abolitionists should not get on any train, plane, bicycle, car or bus. These kill 1000 times as many innocent people as the death penalty kills guilty people, and 5000 times as the death penalty kills innocent people. These cars kill innocent people without any due process. They do so by butchery methods of slicing and dicing bodies with sharp metal edges.

Hypocrisy and Economic Conflict of Interest

The abolitionists use the innocents on death row as a pretext to stop the death penalty for the guilty. Why would anyone advocate for gangbangers, mobsters, and serial killers? Most abolitionists are left wing ideologues. These criminals generate massive government make work for the constituency of the left, government dependent workers.

Tuesday, December 15, 2009

Solving the Problem of Judges in Failure

As to judges,

1) no lawyer should be allowed on the bench; judging is a difficult, separate, nearly unrelated profession;

2) end all self-dealt judge immunity from professional malpractice; force them to carry insurance; automatically remove the uninsurable judge; if the underwriting risk is unacceptable, the risk to public safety is as well;

3) any engaging in judicial review is violating Article I Section 1 of the US constitution or its state equivalent; arrest them; try them; hang the insurrectionists;

4) stop oppressing judges, and allow them to be inquisitorial;

5) end one of three major mistakes in the Constitution, the life time appointment, allowing an Alzheimerocracy;

6) any uttering Latin, any using supernatural doctrines, any using concepts or methods from Scholasticism is violating the Establishment Clause; apply the remedy in 3);

7) the adversarial system was a Scholasticist method for getting at a correct answer; it has no reliability statistics, let alone any scientific validity; it does not withstand any Daubert analysis; it generates massive lawyer fees, all of which are wasted and worthless, insuring no rights, nor increasing any chance of greater correctness of outcome.

Sunday, December 13, 2009

Rules of Engagement Help the Enemy

Afghanistan could be lost from political correctness. It would become a haven for terror attacks on our homeland. The lawyers and their military collaborators responsible for these rules should be hunted down, arrested, tried and executed. The list of these internal traitors should be compiled now.

"Rules of engagement killing U.S. soldiers. You won't believe how politics handcuff troops in Afghanistan
Posted: December 13, 2009
7:26 pm Eastern

F. Michael Maloof
© 2009 WorldNetDaily

WASHINGTON – New military rules of engagement ostensibly to protect Afghan civilians are putting the lives of U.S. forces in jeopardy, claim Army and Marine sources, as the Taliban learns to game plan based the rules' imposed limits.

The rules of engagement, or ROEs, apply to all coalition forces of the United States and the North Atlantic Treaty Organization. Their enactment is in response to Afghan President Hamid Karzai's complaints over mounting civilian deaths apparently occurring in firefights.

Despite the fact that the newly arrived U.S. commander in Afghanistan, General Stanley McChrystal, imposed the more restrictive ROEs to minimize the killing of innocent civilians, however, the Taliban is well aware of them and has its own forces acting in ways to counteract them.

The impact of new restrictions has created increasing frustration and concern among U.S. Army and Marine Corps troops who now are compelled to follow these rules despite the danger of letting the Taliban live to fight again another day.

Critics see the new ROEs being more oriented toward defensive rather than offensive operations, as evidenced by recent charges of murder against two U.S. Army snipers because they had targeted a Taliban commander who reportedly wasn't holding a weapon.

The actual ROEs are said to be classified U.S. and NATO secrets, but based on individual soldier accounts, those restrictions include the following:

* No night or surprise searches

* Villagers are to be warned prior to searches

* Afghan National Army, or ANA, or Afghan National Police, or ANP, must accompany U.S. units on searches

* U.S. soldiers may not fire at insurgents unless they are preparing to fire first

* U.S. forces cannot engage insurgents if civilians are present

* Only women can search women

* Troops can fire on insurgents if they catch them placing an IED but not if insurgents walk away from where the explosives are."

Tuesday, December 8, 2009

An Alternative Criminal Justice System, Not Supported by Lawyers

Crimes should be categorized by the harm done. All crime should be strict liability crime, to avoid the unlawful, church derived proof of intent. Then all sentencing should be based on the person, since incapacitation is the sole useful, mature, and valuable aim of the criminal law. This is the view from the taxpayer and owner of the law. The victims and defendants have other interests, but they can buy their own justice systems to pursue those.

Sentencing could look very different. A murderer could be sent home on probation. A shoplifter could be executed. The simplest way to decide on sentencing is to count the convictions and the reliably assessed conduct of the defendant. So the shoplifter's mother is interviewed. She reports, he is the head of an organized illegal alien gang, and has ordered the execution of many people, and is responsible for the homicide of innocent bystanders by his incompetent bomb placements. These statements are corroborated by detectives.

The shoplifting charge stands in for his 100's of crimes, and is an opportunity for incapacitation. He is not being incapacitated for shoplifting but for his character. The death penalty would no longer be viewed as a punishment nor as a deterrent. It would be viewed as social self-defense and expulsion from our world after wearing out its welcome (damages above $6 million is a good line to draw, from the economist derived market value approach to valuing a human life).

This is a scheme that places a priority on public safety. If it does not work, it should be jettisoned. It may work by attrition.

The judiciary should conduct the guilt phase, in an ordinary trial.

The executive would be responsible for the sentencing and for any public safety harm stemming from setting the defendant loose. The sentencing decisions should be made blinded to the race, gender and other characteristics of the defendant. I don't know whether age should be removed from consideration. Age is second to recidivism as a predictor of future crime. Forget the interview of the defendant. That is a waste of time. The victims of the released criminal should be able to sue the officials and the agency that negligently released him. A standard of professional care could apply here rather than a strict liability approach. Otherwise no one would be released.

Every crime statute should be validated as seeking to prevent a big harm, or repealed. Desuetude should repeal the statute automatically. Legal hoaxing violates the Equal Protection Clause. And the false notice of desuetude is a regulatory taking by forcing legal costs.

The lawyer would remain as an advocate at every stage of this scheme. He could not serve as judge, nor as decision maker in the sentencing phase.

The validation of any scheme whether from 1828 or from 2028, is the drop in crime victimization, the sole mature aim of the criminal law. If a scheme does not work, enhance or replace it every 10 years.

Monday, December 7, 2009

Military Lawyers Continue to Second Guess Our Warriors, Protecting the Enemy

They embed themselves into tactical units. They cancel orders to bomb terrorist locations and targets. This is unbearable betrayal of our nation by disloyal cult criminals. They only care about the rent, and not about our national safety.

"Two Navy SEALs accused in the mistreatment of an Iraqi suspect in the 2004 slayings of four U.S. contractors were arraigned in military court Monday, and one SEAL said he was gratified by support from the public and some members of Congress.

The judge scheduled courts-martial next month for Petty Officer 2nd Class Matthew McCabe of Perrysburg, Ohio, and Petty Officer 1st Class Julio Huertas of Blue Island, Ill. A third SEAL will be arraigned later.

The SEALs have received an outpouring of public support on the Internet, and a California congressman has led a campaign urging Defense Secretary Robert Gates to intervene. About three dozen protesters, including the mother of one of the slain contractors, stood outside the Norfolk Naval Station gate Monday morning holding signs of support.

McCabe is accused of striking the detainee in the midsection, dereliction of duty for failing to safeguard the detainee, and lying to investigators. He deferred entering a plea until his Jan. 19 trial.

McCabe told reporters he was confident he would be exonerated."