Nel's New Day

August 6, 2018

Feds on the Losing Side in Court

Dictator Donald Trump (DDT) is desperately trying to put himself above all laws, even appointing a nominee for the Supreme Court who believes a Republican president doesn’t have to go to court, but some of the recent lawsuits go against DDT’s wishes.

A huge win is a federal judge’s ruling that a lawsuit can move forward to determine whether DDT has broken the law against officials accepting emoluments from domestic and foreign governments. AGs from Maryland and Washington, D.C. maintain that DDT’s profit from his businesses such as his hotel and restaurant violates the constitutional clause that prevents any business transactions giving DDT a “profit, gain or advantage.” The judge agreed.

According to law professor John Mikhail, dictionaries published from 1604 to 1806 use a “broad definition” for emoluments, including “profit,” “advantage,” “gain,” or benefit.” Mikhail added, “Over 92 percent of these dictionaries define ’emolument’ . . . with no reference to ‘office’ or ’employment.’” Thus the emoluments clause stops any benefit or profit to a president from any government whether in his capacity as president or in any other role, such as the owner of a hotel like the Trump International Hotel in Washington. DDT wants the emoluments clause to narrowly refer to compensation for official services, making it a bribery clause.

DDT desperately wants to stop the case because the legal discovery in the lawsuit allows extensive knowledge of his business and financial records, possibly his tax returns which he has kept secret.

A federal judge ruled that the Deferred Action for Childhood Arrivals (DACA) program must be fully restored. The judge wrote that DDT’s administration had again failed to justify closing down the program but delayed his ruling for 20 days for an appeal. The opinion stated that DDT’s decision “was arbitrary and capricious” with legal judgment that was “inadequately explained.” His full ruling shows more of his irritation with the government’s arguments. The judge appointed by George W. Bush is the third federal judge to reject DDT’s excuse for closing the program.

The 9th Circuit Court gave DDT a tiny win when it ruled that a judge can’t overrule DDT’s withholding federal funding for sanctuary regions for the entire nation and sent the case back to the lower court. The circuit court did declare that the order is unconstitutional for its nine states because it exceeded DDT’s authority because Congress is in charge of spending. In his order, DDT attempted to require local law enforcement to carry out federal responsibilities.

A federal judge invalidated the Federal Election Commission regulation permitting donors to “dark-money” groups, including 501(c)4 non-profits, to remain anonymous. The ruling may lead to requirements forcing nonprofits to disclose people who donate $200 or more toward influencing federal elections. The suit began when Karl Rove’s Crossroads GPS didn’t disclose sources for the $6 million used to defeat Sen. Sherrod Brown (D-OH) in 2012. The FEC has 45 days to issue interim regulations or appeal, but an appeal would require a unanimous vote from commissions—probably impossible.

In another donor issue, Montana’s Gov. Steve Bullock is suing the IRS because of its new policy that politically active nonprofit groups don’t need to tell the IRS or other government entities about their major donors. Bullock maintains that the new guideline undermines nonprofit regulations and policing of illegal spending in political campaigns. According to the lawsuit, the government failed to follow the Administrative Procedure Act, the same law used for other suits regarding DDT’s executive orders. It evades the public comment mandate and rewrites policy by calling it a “revenue procedure.”

A judge refused a request from Michael Cohen’s lawyer to put a gag order on Stormy Daniels’ lawyer, Michael Avenatti, to stop him from making public comments about Cohen. Avenatti has said that honoring that request could mean a judge might put a gag order on DDT. In connection with his lawsuit about DDT’s allegedly paying Stormy Daniels “hush money” before the 2016 presidential election, Avenatti said that he now represents three more women with the same claim.

A federal judge ruled that a lawsuit against DDT’s question about citizenship in the 2020 census can go forward because of evidence that the decision was driven by discrimination. He allowed DDT’s negative tweets and statements about immigrants, including the one about “shithole” countries. Plaintiffs from 28 states and a coalition of immigration rights groups allege that the question is designed to drive down census responses in immigrant communities.

A federal judge blocked Defense Distributed from releasing 3D printed gun plans online, and the case goes back to court on August 10. The 3D guns have no background checks or serial numbers and are illegal in the U.S. because they evade metal detection.

The 9th Circuit Court ruled that new California gun safety laws are constitutional. One requires new models of semi-automatic handguns to have identifying information stamped on bullet casings. Another is a requirement to prevent accidental discharges of handguns, and a third bans concealed carry on school grounds.

An Iowa judge issued a temporary injunction on the state’s new voting law and returns the absentee early voting period to 40 days from the new law’s 29 days. The injunction also blocks some ID requirements on absentee ballots. Secretary of State Paul Pate, who is up for re-election, plans to immediately appeal the decision on legislation that he promoted.

A federal judge ruled that Florida’s college campuses can be used for early voting sites because the state’s ban is unconstitutional.

The 7th Circuit Court has ruled that a transgender woman denied hormone therapy while in custody may pursue her lawsuit, overturning a lower court decision that dismissed her case. Lisa Mitchell wasn’t assessed by Wisconsin’s Department of Corrections for over a year; clinicians then recommended the hormone therapy. Without any policy justification, she was still denied treatment because she was due to be released within a month, and parole officers, after her release, stopped her from any hormone therapy and forced her to dress and present like a man.

Four cities—Chicago, Columbus, Cincinnati, and Baltimore—filed a lawsuit against DDT and his cabinet for “waging a relentless campaign to sabotage and, ultimately, to nullify” the Affordable Care Act. The tipping point for the suit was DHHS’ decision to keep substandard health insurance plans for up to three years instead of three months. DDT earlier expanded association health plans not required to cover basic health benefits, eliminated the individual mandate, vastly reduced funds to advertise the ACA, and refused to defend the ACA in court, arguing that pre-existing conditions protection are unconstitutional. Part of the lawsuit’s justification are DDT’s claims that he will get “rid of Obamacare” by destroying it. Without the ACA, cities are forced to pay more for uninsured people. The “take care” clause of the ACA requires the president to ensure that the ACA is faithfully executed.

Last year, 18 states filed a lawsuit opposing DDT’s attempt to block federal cost-sharing subsidies to make the ACA affordable for low- and middle-income people. The case was dismissed, but 12 states filed a lawsuit last week against DDT’s expansion of association health plans. Yale University law professor Abbe Gluck said:

“No scholar or court has ever said the president can use his discretion to implement a statute to purposely destroy it. If there’s ever going to be a violation of the ‘take care’ clause, this is it.”

Nineteen attorneys general have joined California AG Xavier Becerra opposing DDT’s plans to freeze fuel-efficiency requirements for cars and trucks through 2026, refuting the need to improve public health, combat climate change, and save consumers money. DDT will also try to revoke California’s legal waiver to set its own tailpipe restrictions granted under the 1970 Clean Air Act and restrict the dozen states from following California’s lead. His own administration refutes DDT’s “fake” information: an analysis from the National Highway Traffic Safety and the EPA estimates a savings of $500 billion “societal costs,” thousands of fewer highway fatalities, and $2,340 lower cost on each new car. Officials at an internal EPA presentation warned that DDT’s proposal contained “a wide range of errors, use of outdated data, and unsupported assumptions.” Enthusiasm for DDT’s proposal, meant to bring the Koch brothers back onto his team, came only from the oil and gas industry.

Brock Turner, the former Stanford swimmer who received an extremely light sentence for sexually assaulting an unconscious woman in 2016, is back in court asking for his conviction overturned. A lawyer claim to a panel of three judges that Turner only wanted “outercourse” and cannot be convicted of rape because it was a “version of safe sex” with no “penile contact.” Justice Franklin D. Elia said, “I absolutely don’t understand what you are talking about.” Witness reported that the victim’s dress was pulled up over her waist and she was not moving. At the time, Turner admitted to digitally penetrating her.

On the same day that Washington State AG Bob Ferguson joined other AGs to block posting 3D gun blueprint on the computer, he and three other AGs warned DDT against defunding Planned Parenthood. Ferguson’s 10-0 record of wins with only three that can be appealed. He called DDT’s administration “sloppy in how they do their work” and that it typically breaks federal laws. State AGs have worked together to file about 56 multistate lawsuits against DDT, almost as many as the 60 filed against President Obama in all eight years.

DDT’s rush to overturn every move by President Obama has been delayed not only by lack of quality but also by his bombastic public comments.  His incompetence may save the nation.

June 1, 2017

Another Light Sentence for Rape

U.S. Attorney General Jeff Sessions and his employer, Dictator Donald Trump (DDT), are concerned about stricter laws for drug users (aka blacks), but they have said nothing about rape. In another case of white male entitlement, a judge sentenced Nolan Bruder, 20, to three years with all except 240 days suspended in favor of probation, according to the Crescent City Times. Bruder will spend only four months in jail because of California’s felony sentencing realignment.

Bruder’s victim was his 16-year-old sister. She fought his sexual advances, but he kept giving her drugs until she gave in. She didn’t even realize that he was her brother. Deputy District Attorney Annamarie Padilla argued that the sentence should follow the probation department’s recommendation of six years in state prison, but Judge William H. Follett responded that the victim was conscious and took her own clothes off. Padilla pointed out that an interpretation of the law denies probation if a conscious person is forcibly raped. Bruder had given a video-taped confession, but Follett questioned whether there was enough evidence for conviction. He also thought that Bruder had suffered enough “stigma” and that Bruder had not given his victim the drugs to incapacitate her in order to commit rape.

In a police interview, Bruder said that “at first when he asked if (the victim) wanted to have sex, she did not give a direct no or not really. The second time he asked, ‘Are you sure’? The third time, he wasn’t sure if he asked or if the two came to the decision together.” He acknowledged that “she was probably stoned.”

The Del Norte County District Attorney, Dale Trigg, strongly disagreed with the light sentence:

“I could not disagree more. The message that this sends to our community is that sexual predators who get their juvenile siblings stoned enough can have sex with them without any meaningful consequence.  That is not the message I want to send to our community.”

Trigg compared the case with the Brock Turner case in the southern part of the state. A Stanford University swimmer spent only three months in jail for sexually assaulting an unconscious woman.

When Follett ran for judge, he said that he strived “to ensure that people appearing in court are treated fairly and with dignity.” He seemed more concerned with drug use, however, saying that he “implemented strict drug testing to force abstinence as a condition to continuing treatment and avoiding jail.”

Bruder expressed disappointment with his treatment during the case. He claimed that “the D.A.’s Office stated the facts and chose the most condescending way to state those facts and it misconstrued what happened and that seems like an obstruction of justice,” according to the pre-sentence report. The Del Monte Triplicate reported that Defense Attorney Karen Olsen “argued the incident stemmed from bad decisions.”

At least three probation officers reported that Bruder “showed no real remorse and seemed smug.” The report added that Bruder “tried to normalize, minimize and excuse his predatory behavior.” Bruder had molested his sister nine years earlier when she was seven.

Follett has a history of light sentences for white men in case of sexual assault. After a former Del Norte High School coach was found guilty on multiple counts of an inappropriate relationship with a 16-year-old boy, the DA and probation asked for a five-year prison term. Follett gave him three years of probation and one year in jail for two felonies and two misdemeanors.  Young was the boy’s cheer coach who disobeyed a court order to see the boy, lied to the jury, and convinced the boy not to cooperate with the investigation. Follett’s excuse for the light sentence was that the victim was willing to have the relationships despite Trigg’s statement that juveniles cannot be willing participants in a sexual relationship with an adult.

Michele Dauber, a Stanford law professor, said the sentence in Bruder’s case demonstrates  a “failure to hold a young man accountable for a sickening felony sex crime. Indeed the probation department recommended prison, so this is really a case of the judge exhibiting bias, and it is very clear and very obvious.” She is currently leading a recall effort against Aaron Persky, the Santa Clara County judge who gave the light sentence in the Turner case. The effort is targeting June 2018 to put the recall on the ballot.

As Dauber wrote, “Until women start using the power we have at the ballot to elect judges who take sex crimes seriously, this will keep happening.”

If you agree, you sign this petition to remove Judge William H. Follett from the bench.

 

August 13, 2016

No Prison for Sexual Assault Perpetrator

Petition.

Another judge has ruled no prison term for a college student who sexually assaulted a young woman. Like Judge Aaron Persky in the Brock Turner case, a convicted sexual assault perpetrator jailed only three months for sexual assault conviction, Boulder District (CO) Patrick Butler finds the future of the perpetrator more important than punishment.

Austin James Wilkerson, University of Colorado (CU) student, was “pissed off” after the victim rejected his advances. He called her a “f*$%ing bitch” and told friends later that he would “take care” of her. While others watched, Wilkerson gave her water and checked her pulse and temperature. He even sent a text to her friend about his caring for her.

When he was alone with the victim, he sexually assaulted her in multiple ways while she went in and out of consciousness. At trial, he testified she wasn’t drunk and had made “pleasure sounds” while he “caressed” her vagina. He said he left in the middle of the encounter because he felt guilty for cheating on his girlfriend. Wilkerson finally admitted that he “digitally and orally penetrated” the woman while he “wasn’t getting much of a response from her.”

The probation department determined Wilkerson remorseful, but Deputy District Attorney Caryn Datz disagreed, saying the former college student had lied on the witness stand. “It was a five-day display of arrogance, entitlement, privilege and blatant disregard for the role of law,” Datz said of his trial. “This defendant on the witness stand admitted he is willing to lie to gain an advantage to himself.” Deputy District Attorney Lisa Saccomano said Wilkerson displayed a pattern of “highly deceptive, manipulative behavior,” changing his story when it suited him from the night of the sexual assault to his interviews with the probation department.

In court, Austin’s victim said:

“When I’m not having nightmares about the rape, retaliation or a retrial gone awry, I’m having panic attacks. Some days I can’t even get out of bed…. Have as much mercy for the rapist as he did for me that night.”

The victim also told the court about the victim blaming and quoted the ways that victimized are faulted for attacks on them–for example, “If I hadn’t been drunk, this wouldn’t have happened. If I hadn’t gotten separated, this wouldn’t have happened.” She asked, “Yet it was excusable for him to rape me because he was drunk?”

patrick butlerAlthough Wilkerson’s conviction for unlawful sexual assault and assaulting a helpless victim should have given him four to twelve years in prison with the possibility of life if he weren’t rehabilitated, Butler (right) was afraid that rehabilitation was not possible and didn’t want to send him to prison. Therefore he sentenced Wilkerson to 20 years to life on probation and two years in the county jail allowing him to leave during the day to work or attend classes. The judge agreed that Wilkerson appeared to feel “entitled” and “tried to play the system,” but he still kept Wilkerson out of prison.

University of Colorado has 13,000 female students. A recent survey shows that 28 percent of female undergraduates at CU say they were sexually assaulted during their time on campus. Datz explained what she tells victims they will have to endure if they take a sexual assault crime to court:

“That despite her courage, and telling her parents, her school, police coming to meet me, it wouldn’t be enough. That she would have to come into a court and be totally exposed in a court full of strangers. I had to tell her she’ll be accused of seeking attention or having some sort of unknown agenda, and that our community may dismiss this as a drunken college night. I hate to have these kinds of conversations with the bravest people I get to meet.”

In California, Persky is facing a recall campaign for his light sentence of Brock Turner. In the meantime, some prospective jurors are refusing to serve under Persky because of his actions in the Turner case. Persky was also removed from a case in which a male nurse faces allegations of sexually assaulting an anesthetized woman.

According to Mitchell Byars, staff writer for the Daily Camera, district judges are not subject to recall. They are appointed by the governor’s office and subject to retention votes. Butler is not up for retention until 2020, and voters in the 20th Judicial District, covering Boulder County, have always supported a judge in a retention vote. The state legislature can, however, impeach judges. Signatures on this petition are one way to show legislators that they need to impeach Butler for his sentence of Wilkerson.

Wilkerson is not the only person convicted of sexual assault in Boulder County to stay out of prison. Seven months ago, Boulder District Judith LaBuda saved Daniel Ryerson, an Air Force cadet convicted of raping a fellow cadet, from a prison term of up to six years to life. LaBuda said she saw no “remorse” but found he had “redeemable qualities” allowing him to “be a functioning member of society in a positive manner if and when you accept responsibility for the crime that you committed: the rape of somebody who trusted you.” Letters from Ryerson show only blame for the victim and the court as he considers himself the victim.

Despite forensic evidence of rape, defense attorney John Pineau said his client wasn’t to blame any more than the victim:

“The facts in the case indicate that there was a joint venture in the case where both people had almost identical conduct, yet one person is demonized and the other is made a victim. The truth is not typically black or white, it’s somewhere in between.”

Ryerson raped the victim in a bathroom while she was drunk at a party. She says that she now lives in constant fear of retaliation. LaBuda said that she hoped there was “education to the rest of the cadets,” but lack of prison may not provide “education.”

All three men convicted of sexual assault are white and alive and not in prison.

Trump Watch: Trump’s campaign spokeswoman, Katrina Pierson, may be as ignorant as Trump about foreign and domestic affairs. She told CNN that Barack Obama was responsible for invading Afghanistan—that country that George W. Bush invaded in 2011 after he was appointed president by the Supreme Court—seven years before Obama became president.

Trump says that the presidential campaign has boosted his business, but he still refuses to release any tax returns. His excuse that he can’t while he’s being audited is totally bogus. His statement was made as part of a deposition in a $10 million breach-of-contract lawsuit against Geoffrey Zakarian. The chef pulled out of a deal to open a restaurant in Trump’s Washington, D.C. hotel after Trump accused Mexican immigrants of being rapists and drug dealers. Trump also blamed the media in his deposition for misinterpreting his comments. He also filed a lawsuit against chef José Andrés who also terminated his restaurant plans after Trump’s statements.

The deposition also showed that Trump’s company keeps two sets of books—the real ones and the “rosier” ones for lenders and investors, according to testimony from Raymond Flores,  a financial analyst. Projections from the two different sets of books about Trump’s $200 million luxury hotel from Washington, D.C.’s Old Post Office building shows a difference in earnings of 25 percent more in rooms and twice as much in food—millions of dollars—in the lenders’ “model.”

Asked about the reality of the “rosier” picture, Flores said that “it is within the realm of possibility to do great things with this hotel.” Trump’s lawyers tried to keep the May testimony from the public eye, but BuzzFeed News has petitioned the court for the full deposition. The judge ruled in favor of the media, but Trump’s team has filed an emergency motion asking for him to reconsider. If the judge turns Trump down, there may be more revelations about Trump’s dealings.

Trump’s past deceptions have been made obvious with probes into Trump University, his  purchase of condominiums in Baja California, the failure of his Atlantic City casino, refusal to pay his workers, etc. Only the investors in his projects lose.

Once again, Trump may have persuaded Reince Priebus, RNC chair, that the candidate can pivot into a civilized person. After Priebus appeared at a Trump rally to talk about their unity, the RNC and Trump’s campaign are working together to open 25 Florida field offices and install over 200 paid staff within the next three weeks. The spending is in the low six figures whereas Clinton and her allies have already spent more than $20 million in the state.

This is the same Trump who said about the recent letter from leading Republicans begging the GOP to dump him:

“I don’t know that we need to get out the vote. I think people that really want to vote, they’re gonna just get up and vote for Trump. And we’re going to make America great again.”

If he weren’t so scary, it would be more fun listening to him than the Bushisms of George W.’s early first term.

 

June 9, 2016

White Male Privilege – Rapist Apologists in a Rape Culture

Twenty-year-old Brock Allen Turner, Stanford University student and wannabe surgeon, has been found guilty of sexually assaulting an unconscious woman and sentenced. The jury heard about how the victim became incoherent within 20 minutes of arriving at a frat party and how Turner was later seen straddling her completely unconscious body behind a dumpster. The woman did not regain consciousness until 4:15 a.m., and had no memory of the assault.The crime occurred in January 2015, the trial last March, and the sentencing this week. For this crime, California law carried a sentence of two to 14 years in state prison.

At the trial, Turner said that the 23-year-old woman seemed to be enjoying his actions. Yet he tried to run away after two graduate students saw him. They caught and restrained him. Witnesses and physical evidence all refuted Turner’s claims. His court statement explained that drinking can ruin a person’s life and then called the victim “the cause” and himself “the effect.” The jury found Turner guilty of assault with intent to commit rape of an intoxicated person, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object.

Law enforcement refused to publicly release Turner’s mug shot to the media until after a huge outcry. Instead Santa Clara County used his sentencing photo until forced to provide the original mug shot (below left). Media typically used his photos on the swim team or one (below right) that appears to have come from a yearbook. The procedure was in direct contrast to stories about black men accused of sexual assault that typically use mug shots.

brock clean cutbrock mug shot

brock yearbook

 

Judge Aaron Persky, a past Stanford student and captain of the lacrosse team, sentenced Turner to six months in county jail and another three years of probation. The reasons? Turner is an All-American swimmer with Olympic dreams. He just made a mistake, and more than the sentence would have a “severe impact” on Turner’s future. The judge added that he didn’t believe that Turner would be of danger to others and that he’s young.   Turner may be out of jail much sooner. He was sentenced on June 8, and his scheduled release date is September 2 of this year.  While DA in Santa Clara County, Persky prosecuted sex crimes.

In a letter, Turner’s father wrote that any jail time was too harsh. He added, “This is a steep price to pay for 20 minutes of action out of his 20 years plus of life.” The father also suggested that Brock Turner work to warn students about the dangers of “promiscuity.” Michael Miller mourned in the Washington Post that “his extraordinary yet brief swim career is now tarnished, like a rusting trophy.” Other defenses from family members and friends were equally disgusting.

Turner’s sexual assault on an unconscious woman wasn’t really rape, according to his friend Leslie Rasmussen, who sent a letter of support for Turner to the judge. She wrote:

“I don’t think it’s fair to base the fate of the next ten + years of his life on the decision of a girl who doesn’t remember anything but the amount she drank to press charges against him. I am not blaming her directly for this, because that isn’t right. But where do we draw the line and stop worrying about being politically correct every second of the day and see that rape on campuses isn’t always because people are rapists.

“This is completely different from a woman getting kidnapped and raped as she is walking to her car in a parking lot. That is a rapist. These are not rapists. These are idiot boys and girls having too much to drink and not being aware of their surroundings and having clouded judgement [sic].”

After the backlash for her comments about her support for a rapist, Rasmusson (below right) has apologized. But her indie grunge-pop band Good English has lost its gigs, and the judge’s light sentence still stands.

good-english-1

The judge’s sentencing sent two powerful messages.

  1. Color matters: Standout Vanderbilt football player, Cory Batey, was immediately remanded after raping an unconscious woman and got a sentence of 15 to 25 years; Brock Turner got six months for the same crime. Turner would probably not have been convicted at all if two Swedish graduate students hadn’t been riding by on their bicycles.  Batey is black; Turner is white.
  2. Campus rape doesn’t matter: Conservatives continue to blame women and their participation in the “hook-up culture” for their rapes while attacking colleges and universities for trying to decrease the number of sexual assaults on campus.

Turner defended himself on the rape charge by saying that he was drunk and couldn’t help himself. A Facebook post from Matt Lang explained what’s wrong with his defense:

“I’ve been drunk many times, even in the presence of promiscuous women who were also drunk, and I managed not to rape them, so I don’t think drinking and promiscuity are the problems. This here is the problem: some guys are entitled pricks, and they’re entitled pricks because their fathers and coaches and friends taught them to be entitled pricks. Because they are entitled pricks, they think they can have whatever they want, and that their worth is defined by what they have and what they take….

“Brock Turner and his ilk were never taught that [rape is wrong]. They were taught that they can have what they want, when they want, including women. And that’s called being a man. Brock Turner thought he was entitled to a little ‘action’ any way he could get it, and he thought that long before he got drunk. The alcohol didn’t introduce that thought, it unlocked it. That thought: ‘I can take whatever I want, including her,’ was planted and watered by a whole, rotten village.

“It is right that we shame him, and his father, and the friend who came to his defense, and the judge, and every other entitled prick we meet.

“Just as importantly, we need to love our boys, and teach them the dignity of the body, and how to live through disappointment and confusion, and how to navigate confusing feelings, and how to separate feelings from action, and how to communicate and listen. We need to redefine for them what it is to be a man, that their worth doesn’t come from that which they have and take.”

Thanks, Matt.

Over 100,000 people have signed a petition to recall Persky. The National Organization for Women has also published a letter endorsing this action. It is available here. Persky may think that six months in jail is a “severe impact,” but the real impact is the life-time sentences for all of the victims, especially the ones who no longer want to come forward about these crimes because of Turner’s light sentence. The only hope is that the country stay enraged about the actions of Turner, his supporters, and his judge.

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