Nel's New Day

July 19, 2020

Week 182 – Hope for the Future

Throughout the week, I save news giving me hope or just making me laugh. Here are those from the past couple of weeks.

Since the Supreme Court declared almost half Oklahoma’s land is under Native American ruling, one-fourth of oil and gas drillers and 60 percent of refinery capacity operate on reservation land. The Keystone XL pipeline also crosses the Indian country. Regulation for all this moves from oil-friendly Oklahoma to federal and tribal governments. The state’s shale fields were already hard hit with a one-third drop in oil prices this year. The Bureau of Indian Affairs may also have authority over clean-air programs and pipeline grants within the reservation.

Chief Justice John Roberts granted permission for New York DA Cyrus Vance to skip the 25-day waiting period to move forward in issuing a subpoena for DDT’s financial records. Roberts did not grant the same privilege to the House for requests to immediately go forward. In last Thursday’s hearing where DDT’s lawyers gave the same failing arguments and seemed unprepared, a federal judge gave DDT until July 27 to file more challenges to the subpoena. To investigate hush money DDT paid two different women with whom he had affairs, Vance asked for eight years of DDT’s personal and business records from he accounting firm Mazars USA. The firm does not object.

The Supreme Court also ruled against DDT on his DACA program, but he illegally rejects applications and hasn’t even filed for a rehearing with the required 25 days. Also, he consistently changed his mind about moving forward: no executive order, signing a bill to “give [Dreamers] a road to citizenship, no permission for “amnesty” but “want[s] to make people happy.” Ken Cuccinelli, acting deputy secretary of Home Security, refused to remove the website statement that the Supreme Court ruling “has no basis in law.” A federal court has ordered DDT to accept the applications and return the policy to where it was before September 2017.

DDT rescinded his controversial plan to deport all students who are not enrolled in at least one face-to-face class this fall. Lawsuits against DDT had alleged the action violated the Administrative Procedure Act governing rule-making and was a political move to force universities to reopen campuses with classes in person.

After DDT sent his thuggish federal agents to Portland (OR), Oregon’s AG Ellen Rosenblum announced her office will sue federal law enforcement agencies and start a criminal investigation into the agents’ force. She seeks a temporary restraining order stopping them from detaining Portlanders after agents had no probably cause to seize and detain them. Several people destroy DDT’s behavior as “Pinochet-style abducting citizens.” August Pinochet became president of Chile in a junta when he overthrew a democratically-elected leader and became the country’s dictator. Violations of human rights through rape, torture, abduction, murder were common in the 1970s along with Operation Condor, a secret campaign to wipe out the opposition as people were “disappeared.” 

The brutality by federal agents has energized the protest movement and caused protest crowds to grow. On Friday night, a naked woman went up to federal officers line and pointed her finger at them, daring them to shoot. They sprayed pepper balls at the ground inches from her feel. She didn’t move. Oregon Gov. Kate Brown said the presence of federal agents is “like adding gasoline to a fire.” [Right: federal agents firing pepper spray.] 

Brown also said the deployment of federal officers is “a mere distraction from the president’s failure to lead this nation through a global pandemic. It is a blatant abuse of power by the federal government. They are inappropriately trained [according to DHS]. Their presence is not needed. And frankly they’re exacerbating an already challenging situation. It is absolutely counterproductive to the work we’re trying to do here.”

Defense Secretary Mark Esper has decided to ban the Confederate flag at military installations by listing flags that can be flown.  With the new policy, the LGBTQ rainbow flag will also be banned. Esper’s memo stated unauthorized flags—like the Confederate flag—are acceptable in museums, historical exhibits, works of art, and other educational programs.

As DDT gives everyone a rosy picture of COVID-19 in the U.S., Senators pass along the opposite image to their constituents—especially vulnerable ones up for re-election such as Lindsey Graham (R-SC) and Mitch McConnell (R-KY). Forty states see surges in infections, and 67 percent of registered voters distrust and disapprove of DDT’s virus information.

During DDT’s first few months, he used the 1996 Congressional Review Act to erase 14 Obama-era regulations, a law used only once previously. According to that law, any regulation not submitted by the agency within 60 legislative days can be fast-tracked.  Thus far this year, DDT signed at least 33 executive orders and plans far more as Democrats eye them for dissolution:  

  • Destroying environmental law signed by Richard Nixon stopping environmental impact requirements for Infrastructure that he has avoided for over years;
  • Preparing another illegal DACA order with the claim the Supreme Court told him to do it;
  • Banning undocumented immigrants from being counted in the census;
  • Eliminating a fair housing regulation designed to block racial disparities in the suburbs;
  • Weakening an Obama-era controls on climate-warming methane pollution.
  • Restricting the type of scientific research to be used to craft environmental and public health regulations;
  • Forbidding retirement investment managers from considering environmental consequences in their financial recommendations;
  • Making asylum even more difficult for migrants;
  • Erasing civil rights protections for transgender patients seeking health care;
  • Allowing homeless shelters to deny transgender people access to single-sex shelters corresponding to their gender identity;
  • Stopping persecution for businesses killing birds “incidentally”;
  • Permitting energy firms to use undersea sonic blasts to search for oil, regardless of the impact on ocean mammals’ health.

As of a year ago, judges have overturned at least 70 executive orders, and the GOP Congress has overturned three more. In three years, Earthjustice filed over 100 lawsuits to defend environmental and health protections. Of the settled 49 lawsuits, Earthjustice won 39. Presidential candidate Joe Biden and Democratic leaders have kept a careful eye on the executive orders for a review. DDT believes he is creating new laws when he signs executive orders, but his orders are only implementations of laws by the Executive branch. Orders cannot overturn U.S. laws, but Congress can overturn DDT’s orders.

Hackers have found almost 300 documents in which police shared detailed reports about the threats in protests from far-right extremists attempting to create chaos and disorder instead of DDT’s myth of the “antifa.” Law enforcement intelligence was politicized, causing danger to both protesters and police, according to the communication, because of sensationalization of antifa threats with no substance, a situation not part of the factual material about the boogaloo documents. The disaster lay with the desire of the intelligence to paint the antifa as threatening as the far right although the latter showed no concrete evidence of serious criminal activity. Details about their communication. The good news would be dissemination of DDT’s government manipulation.

On July 1, several civil rights laws went into effect in Virginia:

  • Removing unnecessary abortion regulations.
  • Preventing driver’s licenses suspension over unpaid court fees.
  • Ending the requirement of principals to report to police misdemeanors committed at school.
  • Limiting to $50 what health insurers can charge for insulin.
  • Extending to aspiring Americans in-state tuition at public colleges and driver privilege cards.
  • Banning discrimination against LGBTQ individuals in employment and housing.
  • Banning the practice of so-called “conversion therapy” on minors.
  • Decriminalizing cannabis possession.

DDT received a sad comeuppance this past week. A week ago, he spent his morning retweeting messages from Chuck Woolery, a conservative former game show host who accused health experts of lying about COVID-19’s seriousness. Woolery wrote:

“Everyone is lying. The CDC, Media, Democrats, our Doctors, not all but most, that we are told to trust. I think it’s all about the election and keeping the economy from coming back, which is about the election. I’m sick of it.”

Woolery continued by claiming there “much evidence, yes scientific evidence, that schools should open this fall.” The next day he sent his last tweet for now:

“Covid-19 is real and it is here. My son tested positive for the virus, and I feel for those suffering and especially for those who have lost loved ones.”

Woolery deactivated his Twitter account on Wednesday; his son is apparently doing well.

World COVID-19 cases, 14,646,706; deaths, 608,978. USA cases, 3,898,550; deaths, 143,289.

Ending with a bit of humor.  After DDT repeatedly told the world the U.S. would have fewer cases of COVID-19 without testing, Dan Rather offered some assistance to DDT: “We can apparently solve the issue of undocumented immigrants by just not counting them.” DDT could save $20 billion.

July 9, 2020

DDT’s Royal Crown in Jeopardy, Final SCOTUS Decisions

A decade ago, the Supreme Court and the electorate moved the United States toward a low point in its democracy: the Supreme Court ruled unlimited donations for political candidates in Citizens United, and Tea Party voters elected corrupt politicians for gerrymandering. The U.S. expanded oligarchical control and picked Dictator Donald Trump (DDT), interested only in personal wealth and self-aggrandizement, who signed hundreds of executive orders benefiting only himself, not the country. For two years, DDT controlled all three branches of government until Republicans lost faith and put Democrats in control of the house in 2018. 

Supreme Court decisions in the past month have not all appeared to be the highly conservative ones DDT expected when he nominated Neil Gorsuch and Brett Kavanaugh to the high court. Until this week, Chief Justice John Roberts leaned away from the four conservative justices in an anti-abortion case although he went with them in allowing abuses of the environment, financial oversight, and independent agencies. A majority of the justices ruled states could not discriminate against LGBTQ employees, protected DACA recipients, and let stand victories for gun safety and sanctuary laws.  

Two rulings today moved democracy back on its path. Even Samuel Alito and Clarence Thomas, who voted against the specific subpoenas for DDT, agreed DDT is not “king of the United States.” DDT lost his claim of complete immunity from the law. One ruling concerns congressional ability to obtain a president’s financial records from third parties, and the other determines whether a president is immune from state criminal investigation. A New York prosecutor can subpoena DDT’s private and business financial records; the second ruling sent the question back to the lower court to match the restrictions placed onto the subpoenas. The wording of the decision means the information will most likely not appear before the November election, but the premise of the U.S. not being a kingdom with a monarch is vital for democracy.

In the majority opinion, Roberts wrote:

“In our judicial system, ‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”

Furious, DDT lied in a tweet about “broad deference” in the past “BUT NOT ME.” In another tweet, he yelled about “PROSECUTORIAL MISCONDUCT.” DDT began railing against the judiciary even before the decisions were released to the public. “Not fair,” DDT cried, about the possibility of releasing his tax returns and financial records. Yet he cannot block subpoenas if his action impedes Congress from carrying out its responsibilities; a lower court must “assess the burdens imposed on the President by a subpoena.” DDT cannot protest that the subpoenas will take too much of his time, because the subpoena is for private companies and not to him.

The permission for New York to obtain records also removes any special, heightened standard of proof. Roberts used the ruling that Thomas Jefferson was not immune from a subpoena for records in a trial with Aaron Burr. Another citation came from U.S. v. Nixon: “The President’s ‘generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.’”

The opinion placed these restrictions on subpoenas regarding DDT:

  • Subpoenas cannot be for information searches if other sources are available.
  • Subpoenas cannot be too broad.
  • Lawmakers submitting subpoenas must explain how the information advances potential legislation.
  • Confidentiality does not apply if “executive deliberations” don’t exist. court must “assess the burdens imposed on the President by a subpoena.”

In another win for the people of the United States, the Supreme Court ruled a large portion of eastern Oklahoma, including much of Tulsa, is Indian reservation where state authorities cannot prosecute Native Americans. In the 5-to-4 decision, Gorsuch provided the swing vote. The case, which SCOTUS postponed from last year with a different plaintiff, concerns the Muscogee (Creek) Nation. Members of five Indian nations were forced from Georgia, Florida, and Alabama in the 1830s. To take the land for White expansion, the U.S. Army forced-marched the Native Americans on the “Trail of Tears” to the Indian Territory (Oklahoma) where the survivors were promised land. Over 3,000 Indians died on the journey.

In the late 19th century, Congress took courts, governments, and laws from the Creek Nation and forced them to change tribal lands into privately-owned allotments for the tribe’s members before selling surplus land to white settlers. Yet Congress never specifically abolished the reservation’s treaty promising the Oklahoma land in perpetuity. In the majority opinion, Neil Gorsuch wrote:

“If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”

The Oklahoma decision affects almost half of the state’s population. According to the majority ruling, only Congress, not the courts, can modify treaty agreements and change reservation boundaries. Federal officers, not state authorities, will be in charge of prosecuting tribal members for major crimes on the reservation, but the question remains regarding the authority of state and city governments in regulations such as taxation and zoning. The Oklahoma AG and leaders of five tribal groups—Creek, Cherokee, Chickasaw, Choctaw, and Seminole nations—are negotiating an agreement for “shared jurisdiction” to submit to Congress. The Native American sovereign nations and the state must also deal with thousands Indian prosecutions for over a century. 

In two other decisions, the Supreme Court reinforced DDT’s Christian rule. DDT’s expansion of birth control exemptions for employers who claim religious and moral reasons in opposition to the Affordable Care Act’s mandate that insurance plans and employers except for religious nonprofits must cover contraception without cost sharing. Justices Elena Kagan and Stephen Breyer voted with the conservative majority only because the Executive Branch has the power to make this mandate. The nation’s support for universal health care has been growing, especially since the COVID-19 pandemic, and this ruling may enlist more support. Ironically, the Supreme Court opposes abortion while opposing access to abortion prevention. A new president in January could rescind the DHS mandate about employers’ moral perception ruling the lives of women, perhaps guiding some women in their voting choice.  

In another ruling today, religious schools can fire teachers or anyone else supposedly acting as “ministers” to the students. One of the plaintiffs was fired because of her age, the other because she had breast cancer. The two cases leave over 126,000 women without free contraception plus with far more at risk with SCOTUS giving DDT permission for exemptions and tens of thousands of people prevented from suing for job discrimination. An earlier SCOTUS decision forces taxpayers to pay for religious schools, meaning taxpayers must pay for discrimination in education. One of the plaintiffs was demoted because she was 63, the other because she had breast cancer. 

The last decision this week referred to “faithless electors,” voting for their own preference in the Electoral College. That practice is now illegal after the SCOTUS ruling, stating representatives must vote according to their state’s majority vote for president. In the majority opinion, Kagan left wiggle room for 18 states not requiring conformity between the popular vote and the agent in the Electoral College as well as the current initiative passed in 15 states and pending in another ten which pledges electors to the winner of the national popular vote instead of their statewide totals. 

David Farris is making suppositions about Roberts preparing for a Biden presidency. The last two nominations have demonstrated the ugliness of Senate Republicans—first the refusal to consider President Obama’s nominee, Merrick Garland, for almost a year followed by the GOP manipulation of Brett Kavanaugh in 2018. The corruption surrounding the GOP control of the Supreme Court has led to a suggestion that Democrats would enlarge the court if they control the presidency and Senate. Justification might be the appointment of four justices by presidents who lost the popular vote.

Roberts wants to be known for a legitimate court, a difficulty if he needs to vote conservative on an 11-person group of justices. His narrow dance with the Louisiana abortion case kept him from fury about an out-of-control institution from the left although it left him with an unhappy right wing. The end of the 2020 decisions leaves enough liberal victories to quiet those who were highly disappointed with Anthony Kennedy’s disastrous decisions before his 2018 departure. Walking a fine line, Roberts seemed to vote liberal while not really making progressive decisions. Instead, several of the rulings such as DACA and DDT’s financial records merely postponed cases by returning them to lower courts. The abortion ruling invited a conservative assault on women’s rights. Most of the other cases clearly gave control to big business and reinforced voter suppression.

If DDT wins, Roberts can put conservatism into cement; if Biden wins Roberts will continue the veneer of moderation while pushing long-term conservatism, including the overturn of ACA. He’ll copy the last 20 years with one step forward, three steps behind.

COVID-19 in the world on July 9: 12,390,734 cases and 557,416 deaths. And in the United States: 3,219,999 cases and 135,822 deaths. New U.S. cases in the past 24 hours: 61,067.

July 6, 2020

Not All Bad in Week 180

Each year, the Supreme Court is usually finished by the end of June, having dropped all its bombs from the cases it hears. This year, however, the Supreme Court is waiting until July for the first time in 24 years. These are the five biggest ones still not released by July 5:

Subpoenas for Dictator Donald Trump’s (DDT) financial records: The House wants bank and accountant records to achieve its responsibility of oversight, and New York wants access to DDT’s personal and corporate tax documents. The decision determines whether DDT’s tax returns will see the light of day while he’s in the Oval Office. By denying the subpoenas, the high court will give presidents blanket immunity from criminal process.

Contraception Mandate in Affordable Care Act: The ACA requires most insurance plans and employer to cover preventative care, including contraception, without cost sharing. President Obama allowed religious nonprofits to claim an exemption, but DDT extended that exemption to all companies voicing religious or moral objections. The question is how far to allow Christians to control the U.S.

“Faithless electors” voting for their preference in the Electoral College: The question is whether electors representing their states should be required to select a president based on the states’ votes.

Religious exemptions from discrimination suits centering on parochial schools: Are Catholic schools immune from discrimination suits if they violate the First Amendment safeguards because of religious beliefs. One of the teachers was fired because she had breast cancer. Schools are declaring every employee—teachers, janitors, etc.—“ministers” so schools can claim “ministerial exception” in firing them.

Native sovereignty in Oklahoma: The case concerns whether the state can prosecute a crime by an enrolled member of another tribe on land that could still be classified as a reservation because the government never took action to take it away. The Muscogee (Creek) Nation maintains the reservation was never dissolved and Congress never transferred authority over its land, which includes Tulsa. If the Supreme Court ruled in favor of the Native Americans, other tribes could file lawsuits.

In other parts of the U.S., we the people are emerging victorious over fascist actions.

Two energy companies have dropped their six-year bid to build the 600-mile natural gas Atlantic Coast Pipeline tunneling under the Appalachian Trail because of uncertain investing after constant opposition. The company, Dominion, will sell other natural gas pipelines and storage assets to Warren Buffett’s Berkshire Hathaway Energy for $10 billion. Last week, Dominion completed the biggest wind farm project in the country, located 27 miles off the coast of Virginia Beach. The pipeline had been stopped in courts for its hasty and slipshod federal permitting process.

With the signature of Gov. Tate Reeves, Mississippi has completed the removal of the Confederate emblem from its state flag, the last one to feature the Confederate battle flag. A commission will develop a new flag with the phrase “In God, We Trust.”

Thanks to state voters, Oklahoma became the 37th state to approve Medicaid under the Affordable Care Act. Coverage begins July 1, 2021. The act should drive down the state’s 14-percent uninsured rate, and the federal government covers 90 percent of the cost of newly-covered adults.

DDT lost a restraining order against his niece’s new book, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man. Simon & Schuster may continuing and distributing Mary Trump’s explosive insider account. Although a state Supreme Court judge imposed an order against the book, but the New York appellate division lifted it, permitting the book’s release on July 28.

U.S. District Judge Timothy Kelly, appointed by DDT, struck down DDT’s 2019 policy blocking thousand of Central American asylum seekers who didn’t first request protections in a nation between their home and the U.S. Like the ruling against DDT’s anti-DACA policy, the anti-asylum policy unlawfully bypassed the Administrative Procedure Act, requiring people to be informed and opportunity to respond. DDT ordered the policy to go immediately into effect.

The Securities and Exchange Commission (SEC) has openly come out against its chair, former private equity lawyer Jay Clayton, because of his decision to give private equity billionaires the opportunity to take advantage of people with 401(k) retirement accounts. Last week, DDT issued a letter permitting the savings of 100 million workers and retirees to be put at risk in high-risk, high-fee firms. SEC’s purpose is to police the financial industry, and it issued a damning report documenting privity equity crimes. One of the Supreme Court’s rulings last week had restricted SEC’s power to punish thee firms. The law may require restitution for criminal actions but not financial punishment. DDT now wants his good friend Clayton to become U.S. Attorney in Manhattan after firing Geoffrey Berman. Confirmation gives Clayton the ability to control prosecutors, the last line of defense, against private equity crimes. In 2014, a top SEC official reported legal violations or control weaknesses in over half the examined private equity firm, including fee gouging.

In a good news, bad news story, Lt. Col. Alex Vindman, who testified in DDT’s impeachment process, is currently being blocked from a promotion to colonel. That’s the bad news. The good news? Sen. Tammy Duckworth (D-IL) is blocking all 1,123 military promotions to the rank of colonel or above until Defense Secretary Mark Esper guarantees in writing Vindman will not be punished for his testimony.

Dealing with DDT is becoming harder and harder for Senate Republicans. DDT has threatened to veto defense appropriations bill with an amendment to remove Confederate names from military bases. Senate Majority Leader Mitch McConnell (R-KY), up for reelection, is particularly worried about a veto for the bill and said he hopes DDT doesn’t carry through with his threat. Removing the amendment before sending the bill on requires 60 votes—53 Republicans and seven Democrats. The popularity of the Black Lives Matter movement and the struggle for social justice could endanger congressional Republicans up for reelection—197 seats in the House and 21 in the Senate. Three of these senators up for reelection—Joni Ernst (IA), Martha McSally (AZ), and Mike Rounds (SD)—on the Armed Services Committee support the name changes. Ernst and McSally are in vulnerable positions.

Twitch and Reddit have joined Facebook and Twitter in removing DDT’s hateful rhetoric on social media. Among 2,000 subreddits, Reddit banned a longtime forum used by his supporters, The_Donald, for frequent rule-breaking, and video streaming platform Twitch temporarily suspended DDT’s channel for the same reason. Facebook also announced changes to ban hateful content and removed hundreds of boogaloo violent accounts. The decision came after several boogaloos were charged with crimes during the protesters. Facebook has already taken down accounts and pages from white supremacists Proud Boys, American Guard, and Northwest Front.

Facebook is most likely reacting to an advertising boycott quietly starting but reaching huge proportions. After only three days, 800 worldwide companies from Coca-Cola to Unilever pulled millions of dollars in advertising from Facebook. The visibility of the boycott also links Facebook with racism and hate with the hashtag #StopHateForProfit campaign. Facebook stock dropped 8.32 percent last Friday. Boycotters are still negotiating, with civil rights groups planning to meet with Facebook’s CEO Mark Zuckerberg. There may not be much success: Zuckerberg believes in free expression, no matter the lies and violence. Social media depends on engagement; Facebook’s business model uses controversy and outrage to get readers and thus ads. Yesterday, Zuckerman said he will make no policy changes.

Not all of DDT’s officials follow the party line. FDA Commissioner refused to comment on DDT’s claim that 99 percent of COVID-19 cases are “harmless” and  would not predict a timeline for vaccine availability after DDT asserted a vaccine or therapeutic would be ready “long before the end of the year.”

DDT is showing his fear and desperation by recommending people wear masks—despite his promotion of maskless activities. Last month, he told the Wall Street Journal people wore masks only to demonstrate their disapproval of him; last week, he told Fox, “I’m all for masks.” He added:

“Actually, I had a mask on. I sort of liked the way I looked, OK? I thought it was OK. It was a dark, black mask, and I thought it looked OK. Looked like the Lone Ranger.”  

A recent study shows a national mask mandate would save the economy from a five-percent GDP hit. But not if people wear them like the Lone Ranger.

July 5: The number of COVID-19 infections is due to top three million tomorrow. Today’s numbers: 2,982,928 – infections; 132,569 – deaths.

 

March 27, 2018

Conservatism on Trial

Lawyers continue to earn salaries from the outrageous edicts of Dictator Donald Trump (DDT) and GOP laws. Some of the ones from just last week:

Decisions:

Women may legally bare their breasts in public, according to a federal ruling on a 2015 Fort Collins (CO) law preventing female bare breasts in public except for breastfeeding and girls under the age of ten. Fort Collins said that male and female breasts are different and the law is to prevent disrupting order. The group Free the Nipple won’t disband because Fort Collins isn’t giving up.

For the second time, the Supreme Court rejected a GOP request to stop a Pennsylvania court mandate for redrawing the state’s congressional map in a way that removes some of the massive GOP gerrymandered advantage. State legislators considered impeaching the Pennsylvania Supreme Court justices who voted in favor of redrawing the map, but the Chief Justice, a GOP appointee, may have embarrassed them out of the idea.

Two class-action lawsuits over contaminated water in Flint (MI) can go to trial, according to the Supreme Court. Federal Judge John C. O’Meara earlier ruled that the federal Safe Drinking Water keeps the cases out of his jurisdiction, but the 6th Circuit Court reversed O’Meara’s dismissal and allows plaintiffs to seek monetary damages.

A unanimous SCOTUS ruling sent a case back to the 5th Circuit Court after it ruled that indigent prisoners must expect success to get funding for investigating a case. SCOTUS disagreed. In Ayestas v. Davis, the petitioner, sentenced to death for his part in a 1995 murder during a robbery, claimed ineffective trial and post-conviction counsel.

A federal judge temporarily blocked a new law in Mississippi banning abortion after 15 weeks of pregnancy, the strictest limit in the nation that violates the Supreme Court ruling in Roe v. Wade.

Wisconsin’s Gov. Scott Walker (R) refused to hold special elections for empty legislative seats in violation of state law after a Democrat upset in a January special election. A circuit court judge appointed by Walker told him that he will hold the elections. Walker had erroneously claimed that he didn’t need to hold elections because they didn’t occur in an election year. State Senate Majority Leader Scott Fitzgerald plans to get GOP legislators to overturn the judge’s ruling and called on the state Supreme Court to discipline the judge for “politicizing” her ruling.

A federal judge slapped down the Federal Election Commission (FEC)—again—for wrongly dismissing a 2012 complaint against the conservative American Action Network (AAN) that failed to register as a political committee and report the millions of dollars it spent for House Speaker Paul Ryan’s (R-WI) 2010 campaign.

New York Supreme Court Judge Jennifer G. Schecter ruled that a sexual harassment defamation lawsuit against DDT by former Apprentice contestant Summer Zervos can proceed. Schecter used the court precedent in a lawsuit against Bill Clinton—that “a sitting president is not immune from being sued in federal courts for unofficial acts”—as the basis for her decision. Former Playboy model Karen McDougal also filed a lawsuit against owner of the National Enquirer, American Media, to be released from her contract to keep quiet about an affair with DDT.

The Supreme Court refused to roll back the ability of federal agencies to interpret their regulations. Under DDT, agencies are pushing abstinence-only regulations affecting women’s reproductive rights, net neutrality, and otherwise burdening people in the U.S. with religious and business-oriented advantages. Even so, ultra-conservative Justices Clarence Thomas and Neil Gorsuch disagreed with the majority.

Ongoing trials:

The “anti-trust trial of the century” has started in the government’s fight against AT&T’s desired $85 billion merger with Time Warner. The merger’s lawyer claimed that they would never charge people more or block any content.

Filings:

Consumer groups are suing DDT for its elimination of standards for treatment of animals if the meat is designated “certified organic.” The Department of Agriculture claims that it lacks the authority and that the regulation would be costly despite the agency’s economic analysis of only minor costs.

Civil rights groups are suing DDT for document about the decision blocking a rule requiring companies with over 100 employees to track wages based on race and gender.

Environmentalist and animal welfare groups are suing DDT on his new stand allowing people to bring elephant trophies into the U.S. after he described big-game trophy hunting as a “horror show.” The new suit is an amendment to an ongoing case against Interior Secretary Ryan Zinke’s lifting the ban last year on lion trophies from Zimbabwe. Zinke’s International Wildlife Conservation Council is composed of “celebrity hunting guides, representatives from rifle and bow manufacturers, and well-heeled trophy collectors,” according to AP. One board member, Peter Horn, co-owns a private New York hunting preserve with DDT’s big-game hunting sons, Eric and Donald Jr.

 

 

Pending:

The strangest case comes from a 1990s capital murder case involving two Native Americans that could restore tribal sovereignty to almost half of Oklahoma for the first time in a century. Patrick Murphy, death-row inmate and member of the Muscogee Creek Nation, claimed that the state cannot try him for the murder of another tribal member on land that was part of the Creek Nation’s reservation. In the late 19th century, Congress took courts, governments, and laws from the Creek Nation and forced them to change tribal lands into privately-owned allotments for the tribe’s members before selling surplus land to white settlers.

Last summer, however, a three-judge panel in the 10th Circuit Court ruled that Congress had never specifically abolished the Creek Nation’s reservation which left it intact. The panel ruled that Royal v. Murphy had to be tried in federal court like other major crimes between Native Americans. In effect, the ruling returned the territory to the tribe and opened the door to other Oklahoma tribes, including the other four of the Five Civilized Tribes. They were all moved from southeastern U.S. on the Trail of Tears that killed over 4,000 people and promised the Oklahoma land in perpetuity. The land for just the Creek Nation comprises 4,600 square miles with 750,000 inhabitants including most of Tulsa. The five tribes together would take over 40 percent of Oklahoma.

Changing the land to reservation would restrict state criminal jurisdiction to minor offenses such as traffic violations. Federal and tribal courts would be in control of all other crimes. State taxation would also be impacted, and oil companies are concerned. Murphy has a lot at stake in this case: federal government bans the death penalty for crimes on tribal land.

In Solem v. Bartlett (1984), the Supreme Court ruled that each reservations keeps its original boundaries unless Congress specifically changes the borders or completely abolishes the reservation. The 10th Circuit ruled that this had not happened “and if it never did, that post–Civil War reservation is still intact.” [Above map showing 1866 boundaries of the Creek Nation.] That ruling stays unless the Supreme Court decides to take the case.

During March, Kansas Secretary of State Kris Kobach, the man determined to disenfranchise every Democratic voter, took up eight days in court to defend his state law that requires prospective voters to prove their citizenship before they can register. He tried to present new information after the deadline, tried to testify to a document that he couldn’t find, and couldn’t phrase questions for cross examination or impeach a witness. Federal Chief District Judge Julie Robinson, a George W. Bush appointee, accused Kobach of engaging in “gamesmanship” and skirting her orders. Calling the 11 illegal voters of 1.8 million on the voter rolls the “tip of the iceberg,” Kobach kept 35,000 people from voting. Kobach stands accused of violating federal law by refusing to register these legitimate voters who signed up to vote through driver’s license offices.

The question of the trial is whether widespread voter fraud is credible, and Kobach had to admit it isn’t. On the first day of his trial, he said that federal databases cannot identify noncitizens—although that was the mission of DDT’s now-disbanded federal commission he headed up to find illegal voters. His witnesses confessed that their research is unreliable because it isn’t subject to peer review and suffers from flawed methodology. The “expert” who testified that noncitizen voting didn’t change the outcome of the popular vote, in opposition to Kobach’s claim about three million noncitizens voting in 2016, and testified that he identified potential noncitizens in Kansas by how “foreign-sounding” a name was. Another “expert” disclosed that his belief in Kansas voter fraud was entirely based on a list of about 30 voters that Kobach’s office gave him and he used incomplete information which could make it appear that more noncitizens tried to vote than those who existed. He, too, could not name any election swayed by noncitizens. Kobach’s legal opponent, Dale Ho (also a “foreign-sounding” name, concluded, “The iceberg, on close inspection your honor, is more of an ice cube.”

Koback’s latest attempt to remove Democratic voters was to tell DDT that the census should ask about everyone’s immigration status. May Kobach be brought down by creatures that he considered much smaller than himself. May he become afraid.

 

October 11, 2015

State May Be Separating from Church

FILE - In this Tuesday, June 30, 2015 file photo, the Ten Commandments Monument is pictured at the state Capitol in Oklahoma City, Okla. The Oklahoma Supreme Court’s June 30 decision to order the monument removed from the state Capitol grounds has so angered conservatives in the Legislature that some Republicans are calling for justices to be impeached. (AP Photo/Sue Ogrocki, File)

In another failure for Oklahoma conservatives, after they didn’t execute Richard Glossip at the end of September, is the removal of a one-ton granite monument with the text of the bible’s Ten Commandments. Afraid that protesters would obstruct their actions, a “large Oklahoma Highway Patrol presence” guarded the workers late at night. The behemoth isn’t gone; it’s just moved a few blocks away where it doesn’t violate Section II-5 of the Oklahoma Constitution mandating that public property can’t be used to benefit or support any “sect, church, denomination, or system of religion,” either directly or indirectly. Gov. Mary Fallin has asked voters to amend the state constitution so that the monument can return to the capitol grounds. Oklahomans might want to note the Sixth Commandment, “Thou shalt not kill,” when considering future state executions.

 

Teaching evolution in public schools does not violate the First Amendment, a federal district court has reaffirmed. Kenneth Smith of Harpers Ferry (WV) had filed suit, stating that his religious freedom rights were violated because his daughter learns about evolution in public school. She plans to be a veterinarian, and her father claims that evolution is teaching her “a faith base (evolutionary ideology) that just doesn’t exist.” Judge Gina M.Groh ruled that he couldn’t prove that state agencies had committed any wrongdoing. Last year, the creationist group Citizens for Objective Public Education (COPE) sued to stop the state of Kansas from implementing new science education standards that included the teaching of evolution. COPE argued that by teaching evolution, public schools had effectively endorsed atheism as a religious viewpoint. They lost too.

Forced to find money elsewhere after her older brother’s sexual crimes, Jill (Duggar) Dillard, of 19 Kids and Counting, decided to collect money with her husband,Derick Dillard, for a mission to El Salvador. Disillusioned fans after the experience seemed to be more a vacation than actual work were  right: the Dillards had applied for missionary status to the Southern Baptist Convention that decided the couple lacked enough education. Fortunately for them, they still have the money from the “Dillard Family Ministries,” a tax-exempt religious organization that keeps them from having to declare how much money they have or where it is.

This tax-exempt status of religious groups may someday run into legal trouble. Pope Francis has already taken potshots at churches that “worship the God of money” instead of helping the sick and the poor as Jesus commands. Televangelists and preachers who run their “churches” like businesses or political organizations may want to take notice. As in the U.S., Italian churches act as umbrellas for its property and businesses to avoid taxation. Religious groups operate churches as hotels and still don’t pay taxes. One famous example of tax dodging in the U.S. is John Hagee, who reorganized his TV station in 2001 as a church to shelter tax records for his income of over $1 million. Hagee’s personally-owned 8,000 acre ranch is covered through the Cornerstone Church.

In one segment on his HBO show, John Oliver satirized U.S. churches and preachers such as Pat Robertson who run ponzi-like schemes in begging money in return for God’s favor. After the first episode of “Our Lady of Perpetual Exemption,” the IRS was skewered for conducting only three audits of churches in 2013-14 and non for the four years before that. Any designated “church,” including the Church of Scientology, is tax exempt. Oliver didn’t reveal how much money he received, but the thousands of responses indicated quite of bit of loot. (Oliver gave all the donations to Doctors without Borders.)

john oliver

Luckily for the Duggar family, they are getting financial assistance from GOP presidential candidate Mike Huckabee through partnership in the sales of a political DVD series. The company markets the series with an initial “free” item, available for only shipping and processing. Ordering it automatically enrolls the “purchaser” into future sales. The “Learn Our History” series supposedly teaches “historical facts without bias” and American pride as the videos  “…recognize and celebrate faith, religion and the role of God in America’s founding…,” and “…correct the ‘blame America first’ attitude prevalent in today’s teaching.” We can assume that many tax-funded charter schools will be showing the videos.

Pope Francis seems to suffer from ambivalence when regarding LGBT people. Progressives praised him when he seemed to support LGBT families before they were disturbed with a supposed meeting with Rowan County (KY) clerk, Kim Davis, who had refused to issue marriage licenses to same-gender couples. The Vatican explained that she was just part of a crowd, and the pope met for 20 minutes with a former student and his male partner while in the United States. Now The Vatican has fired Monsignor Krzysztof Charamsa after he said he was proud to be a gay priest and in love with his boyfriend. Vatican spokesman, the Rev. Federico Lombard, said that Charamsa could remain a priest but could not work at the Vatican.

Charamsa made his announcement just before the Vatican hosted bishops from around the world in a synod discussing families. The reports issued indicate confusion. One of the four groups spoke of a need to reach out to families while another claimed there is a need to point out the sins of current attitudes. Another question is whether the documents are to be distributed publicly or given to the pope as advice.

GOP presidential candidates take great pride in claiming their religious beliefs, but their anti-Christian positions may cause difficulties for them. In a townhall meeting, New Jersey Chris Christie was heard to provide too much information about his use of contraception with his wife. Concentrating on Christie’s sex life, the media failed to publicize the question that led to Christie’s humor. In his audience, a man had cited three biblical verses to argue that Christians should oppose foreign wars and support environmental conservation. Basically, the man was echoing the position of Pope Francis, who the GOP also opposes.

Purporting to be Christians, the GOP candidates oppose curbing global warming, raising the minimum wage, and providing a path to citizenship for undocumented people in the U.S. Jeb Bush said, “I don’t get my economic policy from my bishops or my cardinals or my pope,” and Rick Santorum accused the pope of not being a scientist although pontiff has a degree in chemistry. Marco Rubio said that protecting the economy might be more important than protecting the planet.

Both anti-marriage equality GOP candidates Rand Paul and Donald Trump are affiliated with the Presbyterian Church, which supports same-gender marriage, and Mike Huckabee and Ted Cruz use Christianity to oppose marriage equality and help for undocumented immigrants, a pathway that conservative Christian groups endorsed in 2013. Huckabee tried to work his way out of trouble at the National Hispanic Christian Leadership Conference (NHCLC) in April by emphasizing the need for border security. That was the day after the head of the NHCLC had said that “Republicans must cross the Jordan of immigration reform to step into the promised land of the Hispanic faith electorate.”

It’s a difficult time for conservatives in a changing landscape.

October 10, 2015

World Day against the Death Penalty

Today, October 10, is World Day against the Death Penalty. This year’s focus is “The Death Penalty Does Not Stop Drug Crimes.” The top five killers of capital punishment, executing more people than the rest of the world combined, are the United States, Iran, Saudi Arabia, Iraq, and China. Almost two-thirds of countries worldwide, 140 in all, have abolished the death penalty, up from only 16 countries in 1977. Yet death sentences increased by over 500 last year from the year before: at least 2,466 people were sentenced to death in 2014. Actual executions dropped 22 percent to at least 607, not counting China which does not release its numbers of executions. Last year, 22 governments in 22 countries killed people, compared to 41 governments ten years ago.

Why the death penalty is wrong:

  • Innocent people are executed.
  • Capital punishment is extremely expensive.
  • The death penalty prolongs suffering for the victim’s family as offenders may spend 20 or 30 years on death row.
  • No proof exists that executions deter people from committing crimes.
  • Whether defendants receive the death penalty is largely dependent on the quality of legal representation with poor people receiving the worst legal support.
  • The race of both victims and defendants are primary factors in determining death sentences.
  • Politics and geographic location of crimes are also important factors in determining death sentences.
  • Death sentences deny the sanctity of life that religious groups support; capital punishment is immoral.

While the death penalty is decreasing worldwide, the number of executions for drug-related offenses increased in 2015. Of the 33 countries executing people for drug use or trafficking, 13 used this option in the past five years. For example, Indonesia used the firing squad to execute eight people for drug offenses in April 2015. There is no indication that the death penalty prevents drug consumption or drug trafficking.

Singapore had record numbers of drug seizures in 2012 despite the country being a leader in imposing the death penalty for this crime. Countries allowing the death penalty for drug-related offenses show evidence of coercion or torture to obtain confessions in China, Egypt, Indonesia, Thailand, Saudi Arabia, Sudan, etc. Concerns for trial standards for drug-related crimes have been raised in Cuba, Iraq, Myanmar, North Korea and Syria, amongst other countries.

In the U.S., the death penalty is legal in 31 states, and governors in four of these states, including Oregon, have imposed a moratorium. Only 20 states where approximately one-third of the people in the U.S. live had held an execution in the past eight years.

death penalty map

Last year, the U.S. Supreme Court addressed the question of whether the use of inappropriate injections violated the Eighth Amendment’s prohibition on cruel and unusual suffering. The conservative majority ruled in Glossip v.Gross that executions would necessarily have some pain and therefore upheld the use of the injections. Justice Samuel A. Alito Jr. wrote for the majority that the there was no identification of a “known and available alternative method of execution” that would carry a lesser risk of pain.

The case led to a wider discussion about the death penalty itself. Two of the four dissenting justices, Stephen G. Breyer and Ruth Bader Ginsburg, wrote dissents asking the court to examine whether the death penalty is actually constitutional, stating that it likely “violates the Eighth Amendment.” All four of these justices summarized their views from the bench. Justice Sonia Sotomayor rejected the court’s conclusion that prisoners must identify an “available alternative means by which the state may kill them.”

Another issue surrounding Glossip is that the convicted man might even be innocent. Richard Glossip’s life continues after three scheduled dates for execution because of a series of errors in Oklahoma. After the Supreme Court ruled in favor of executing him, the date was set for September 16, 2015. Pleas from around the country because of new evidence regarding his conviction resulted in a last-minute reprieve for two weeks.

Another last-minute reprieve on September 30, 2015 came when Mary Fallin and state Attorney General Scott Pruitt announced that they had gotten the wrong drug—potassium acetate instead of potassium chloride. Although a doctor and pharmacist claimed that the two drugs are interchangeable, the executed prisoner Charles Warner, who suffered great pain last January, received potassium acetate instead of the potassium chloride as the state originally claimed. Glossip’s new execution was set for November 6, 2015 but has been put off indefinitely until the completion of an investigation.

This year the Supreme Court has scheduled four capital punishment cases. On Tuesday, October 13, SCOTUS will hear arguments about the jury’s role in assigning capital punishment in  Florida, the last state that does not require jurors to be unanimous in both explaining why a person is eligible and then recommending that sentence. The other forty-nine states and the federal government consider a unanimous verdict as the norm,  A 2002 SCOTUS ruling in Ring v. Arizona attempted to move death sentencing from a judge to a jury, but Florida’s law gives juries only an advisory role in death penalty sentencing.

The current SCOTUS case, Hurst v. Florida, could reinterpret issues about not allowing judges to make the factual findings about “aggravating factors” and not requiring a unanimous jury vote for death sentences. In the case under consideration, Timothy Lee Hurst received a death sentence after the jury supported it in a vote of seven to five. Florida doesn’t even require a majority advisory vote for the death penalty if a majority of jurors agree that at least one aggravating factor exists. Florida judges are also not required to follow juries’ recommendations in death sentences.

Last week, the Supreme Court addressed two Kansas cases in which the state Supreme Court overturned the death sentences of three men because of confusing jury instructions. The sentence was set aside for another man because he was tried together with his brother instead of separately. A ruling could affect the future for six of the other nine prisoners on death row in Kansas because the same issue can be applied to their sentencing.

Another capital punishment case sent to the Supreme Court was declared “moot” last Friday because of “miscommunication.” Despite a filing to the Supreme Court before the execution, neither Virginia’s governor nor the attorney general notified the state Department of Corrections before Alfredo Prieto was declared dead after an injection of drugs purchased from Texas.

Before this year’s SCOTUS term began, Breyer discussed his views on the death penalty with MSNBC journalist Ari Melber, in an interview following the publication of Breyer’s ninth book, The Court and the World: American Law and the New Global Realities. Rachel Maddow’s discussion of the death penalty including parts of the interview is here, and the Breyer/Melber full interview is here.

death penalty

During the past two decades, the difference in opinion about the death penalty has shrunk in half. Those opposing the practice have increased from 16 percent to 33 percent while those in favor have dropped from 80 percent to 63 percent. Maybe some of these people read the statistics that murder rates in New York and New Jersey decreased after these states repealed capital punishment.

September 16, 2015

Condemned Man Granted Two-week Stay

Richard Glossip was scheduled to be executed in Oklahoma at 3:00 pm (CT) this afternoon. Yesterday, I wrote a blog about why his execution should be stayed because new evidence might prove his innocence. Less than three hours before Glossip’s time of death, a two-week stay of his execution was announced. The Oklahoma Court of Criminal Appeals “reset” his execution to September 30 so that it could reconsider a last-minute petition filed by Glossip’s new attorney. On or before that time, the court can either grant or deny the additional requests with the possibility of further delaying Glossip’s execution.

Oklahoma Gov. Mary Fallin, who had refused to stay his execution, said that she will abide by the court’s decision.

As I wrote yesterday, Glossip was convicted of a murder with no forensic evidence and extremely poor defense at two different trials. The prosecution’s entire case relied on testimony from 19-year-old Justin Sneed, who was given a plea agreement if he implicated Glossip. After “persuasion” from law enforcement, Sneed admitted to beating Van Treese to death with a baseball bat and taking about $4,000 out of his car but said that he did it because Glossip told him to do it.

More information about Glossip’s case came out last night when it was reported that prosecutors destroyed a box of evidence in 1999 before Glossip’s first appeal had been heard and his conviction overturned. The box reportedly held financial records that Glossip claimed would prove that he wasn’t embezzling money. The defense was not notified about the destruction of the evidence and may not have even known that the evidence existed—a serious violation of prosecutorial conduct. That doesn’t prove Glossip’s innocence, but the charge is to prove him guilty. The other question is whether the state will execute a person with this much uncertainty.

The testimony from “jailhouse snitch,” Justin Sneed, leaves many questions. In the first trial, he claimed that Glossip offered him $7,000 to kill Barry Van Treese; by the trial in 2004, Sneed said it was $10,000. At first, Sneed said that he had met Glossip only a few times, but by 2004, Sneed claimed that Glossip had told him to kill Van Treese “five or six times” by the time he actually did it. In a videotape, never presented in court, Sneed said he was coming off a meth binge when he killed Van Treese. It also shows interrogators telling Sneed that they had arrested Glossip although Sneed gave a different testimony in the 2004 trial.

Despite the emergence of new evidence, Fallin and the DA who convicted Glossip, Bob Macy, claimed that it was “nothing but a publicity campaign by death penalty—anti-death-penalty activists to try to bring down the death penalty in Oklahoma and in the United States.” There was no concern about whether they might be responsible for executing an innocent man.

Glossip has always maintained his innocence, even rejecting a plea deal to take him off death row.

September 15, 2015

Will Oklahoma Execute an Innocent Man?

Filed under: Capital punishment — trp2011 @ 8:03 PM
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Imagine committing no crime but ending up on death row—for 18 years. That may be what happened after Richard Glossip, now 52 years old, was accused in 1997 of hiring Justin Sneed to kill Glossip’s employer, Barry Van Treese, after Glossip embezzled money from his boss. Physical evidence put only Sneed at the murder, according to Glossip’s original defense. Van Treese’s brother also testified that the shortages used to prove the embezzlement were insignificant. No DNA or fingerprints linking Glossip to the murder, and prosecutors admitted in Glossip’s 2004 retrial that “the physical evidence doesn’t directly implicate Mr Glossip.” All the evidence pointed only to Sneed. Yet Glossip was judged guilty in both the original 1997 trial and the retrial.

Glossip’s first trial was overturned by the Oklahoma Court of Criminal Appeals in 2001 because of inadequate and since debarred counsel, Wayne Fournerat, and suffered from another inadequate public defender in the 2004 trial. Glossip’s attorneys never introduced the videotape of Sneed’s interrogation as leading questions cajole Sneed into blaming Glossip. At the trial, Sneed even added premeditation on the part of Glossip to his narrative. Even Sneed’s daughter, O’Ryan Justine Sneed, wrote that Glossip didn’t do what her father claimed and that he is still afraid of recanting his story because he might get the death penalty.

The actual murderer, 19-year-old Sneed, first said he didn’t know Van Treese, then he didn’t kill him, next he killed him accidentally during a robbery, and finally he admitted he killed him intentionally. Richard A Leo, a professor at the San Francisco University School of Law, said that the investigators’ behavior is “substantially likely to increase the risk of eliciting false statements, admissions, and confessions.”  Investigators who “presumed the guilt of Richard Glossip from almost the start and sought to pressure and persuade Justin Sneed to implicate Richard Glossip” initiated Glossip’s guilt, according to Leo.  Sneed testified against Glossip and saved himself from a death penalty in a plea deal.

Now a legal team is arguing that prosecution framed its case on the testimony of murderer Sneed, whose changing retelling was not adequately disputed in the trial. Attorney Donald Knight said that Glossip’s defense failed to prepare for trial; they didn’t even question key witnesses such as D-Anna Wood, Glossip’s girlfriend, who could have provided alibis for Glossip. Nor did the earlier defense lawyers challenge gruesome evidence about Van Treese taking eight hours to die when new evidence found that death came within 30 minutes. Jurors had considered the length of time as important in their decision.  Asking for 60 more days before execution to gather more evidence, Glossip’s new attorney, Donald Knight, said:

“Richard is sentenced to death because he’s poor. Not very many people can afford a death penalty defense. That should scare everyone.”

Other new evidence, according to Knight, is a witness report that Sneed was addicted to drugs and fed his habit by breaking into cars and hotel rooms. A man who served time with Sneed in prison also said that he overheard Sneed saying that he set up Glossip.

Glossip received a stay one day before his scheduled execution in January because his name was part of the Supreme Court appeal regarding the lethal injection drug midazolam that resulted in several botched executions. The high court ruled that the drug’s use was constitutional, and Glossip’s new execution day was scheduled in July for tomorrow, September 16, 2015, at 3:00 CT.

Even former Sen. Tom Coburn (R-OK) signed a letter with high-profile legal experts urging a stay of execution. They wrote:

“Unless you act, the State of Oklahoma will put Mr. Glossip to death for the murder of Barry Van Treese. Justin Sneed–who, by his own admission, beat Van Treese to death with a baseball bat–will not meet that fate.

“The writers of this letter have a wide range of professional backgrounds and political perspectives. But we share a deep concern about the integrity of the criminal justice system in Oklahoma and throughout the United States. We are particularly concerned about the danger of executing an innocent man.”

Oklahoma Gov. has thus far refused to stay Glossip’s execution despite the strong possibility that he is innocent. You can call her at (405)521-2342. Both options are #1. Of the 112 executions in Oklahoma since 1976 and 49 inmates currently on death row, the state has had 10 death row exonerations. That failure rate alone should give Richard Glossip another 60 days.

The National Registry of Exonerations lists 115 defendants sentenced to death but later exonerated and released after the discovery of new evidence of innocence was discovered. Of those 115 innocent inmates on death row, one-fourth of them, 29, were convicted after a suspect in the murder gave a confession that also implicated the innocent defendant. Last year a study published in the Proceedings of the National Academy of Sciences estimated that 4.1 percent of defendants who are sentenced to death in the United States are innocent. Most of them, like most of all defendants who are sentenced to death, have not been exonerated or executed. They remain in prison or have died of other causes.

Quality of representation may be the most important factor in the death penalty for a crime. Almost all defendants in capital cases need public defenders who are overworked, underpaid, and/or lack trial experience for these cases. Sometimes appointed attorneys drink alcohol before they come to court or fall asleep during the trial. In 2001, Supreme Court Justice Ruth Bader Ginsburg said:

“People who are well represented at trial do not get the death penalty . . . I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”

Alabama has the highest per capita rate of executions in the United States; the state has no public defender system, and 95 percent of its death row occupants are indigent.

Texas has the largest total number of executions; almost one-fourth of the 461 condemned inmates were represented by court-appointed attorneys who have been disciplined for professional misconduct. According to an investigation, death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.”

Washington state has 84 people who faced execution between 1980 and 2000; one-fifth of them were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (The state’s disbarment rate for attorneys is less than 1%.)

These statistics are not unique across the nation.

Support for the death penalty is at its lowest point in 30 years: 52 percent of people in the United States advocate life in prison instead of execution. The strongest support for killing inmates comes from evangelical white Protestants and Republicans as well as states that still have the death penalty. Recently, Nebraska joined Maryland, Connecticut, Illinois, New Mexico and New Jersey to repeal the death penalty since 2007.  The governors of Colorado, Oregon, Pennsylvania, and Washington have each indefinitely suspended future executions.

Death Penalty Map

The death penalty has become less common. Last year saw the lowest number of executions in 20 years, 35, and the fewest new death sentences in 40 years, 73. Just 62 counties of 3,000 nationwide are responsible for the majority of death sentences. Half of all new death sentences between 2004 and 2009 came from less than 1 percent of the country’s counties; all the new death sentences came from fewer than 2 percent of the counties.

executions by region

Proponents of the death penalty claim that its purpose is deterrence. There is no evidence supporting that premise, and the vast majority of top criminologists disagree with the theory. In addition, the death penalty costs state and local governments millions of dollars more than life in prison without parole.

Gov. Mary Fallin has no reason to let the state kill Richard Glossip.

April 30, 2014

Death Penalty Kills Innocent, ”Cruel & Unusual’

Law in the United States is controlled by nine people, six men and three women. It is the final recourse for injustices, and its decision determines legal edicts. That group of people is called the U.S. Supreme Court. They are not bound by any Code of Conduct or other rules.

The last court of appeals for innocent people in prison—even on death row—is the Supreme Court, now ruled by highly conservative justices. Last year, they heard a case about the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) that prevented prisoners from filing more than one “habeas corpus petition,” that sues the warden for release. After one year following the one direct appeal was lost, prisoners couldn’t even file this petition. The ruling in McQuiggin v. Perkins, however, allowed the petition at any time if new evidence could show innocence. The bar in filing the petition is high: the petitioner must show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

The good news is that a prisoner can appeal conviction based on new, solid evidence. The bad news is that four of the justices disagreed. Justice Antonin Scalia thinks that a man locked up for a murder that he did not commit should not be able to challenge his conviction. Three other justices think that most people in prison after unconstitutional convictions should have no recourse to federal courts. Scalia’s position is that federal courts should not overturn state convictions as long as there were minimal safeguards such as counsel and access to state appellate courts.

In 2009, Scalia wrote, “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Troy Davis was executed two years after Scalia’s statement although seven of the nine witnesses who testified against him at trial had recanted.

Michelle Byrom, who was on Mississippi’s death row for killing her husband, gained a new trial in April after a ruling by the state’s supreme court. Her son had admitted to killing in Byrom’s husband in several documents, including jailhouse letters and an interview with a psychologist, but then recanted on the stand. She was in the hospital with double pneumonia when her husband was killed. The court also required a different judge for the woman’s new trial. Her case, however, is highly unusual.

A study released this week shows that at least 4.1 percent of all 8,000+ defendants sentenced to death in the U.S. during the past four decades are innocent. According to lead author Samuel Gross, a law professor at the University of Michigan law school, this is a conservative estimate. Scalia misrepresented the percentage at .027 percent in 2007 when he was trying to justify killing people. Between 1973 and 2004, 7,482 people received death sentences; 1,320 were executed, and 117 were exonerated. About 2,675 people were taken off death row, but most of them were sentenced to life without parole.

In 1972, the Supreme Court ruling in Furman v. Georgia voided 40 death penalty statutes and suspended the death penalty. Since the Supreme Court reinstated the death penalty in 1976, eight states joined the ten states that had already eliminated the death penalty, six of them in the past six years. Connecticut and Maryland stopped executing people since the map below was published. Click here to see the number of executions since 1976.

death penalty in america

In 35 states, approximately 3,095 inmates are waiting to be executed. Although Connecticut, Maryland, and New Mexico have abolished the death penalty, the law is not retroactive. Prisoners on death row in those states will still be executed. Since 1976, 1,374 have been executed—if you count the botched killing in Oklahoma last night.

Because execution drugs are so hard to obtain, some states are increasingly reluctant to divulge the sources. After the U.S. confiscated the drug sodium thiopental because of questions about where it was obtained, Tennessee hides any information about execution drugs. Only six executions were carried out in Tennessee in over one-half century, but the state has now scheduled 11 of them. The last person executed in the state, Steve Henley, died in 2009 saying that he was innocent.

Oklahoma is now center stage in the death penalty business. Last night, Clayton Lockett struggled violently on the gurney for 13 minutes after the execution began. Doctors stopped the drug injection and tried to resuscitate him, only to have Lockett die of a massive coronary 30 minutes later. An execution scheduled two hours after that of Lockett’s was postponed for two weeks. That’s not the entire story, however.

The state’s supreme court had ordered a stay of execution because the composition and source of the execution drugs were kept secret. Despite this decision, Gov. Mary Fallin said that she would continue with the execution, and the supreme court backed off. The lethal drugs were untested; the United States has been unable to purchase execution drugs from its past source, Europe, for several years.

Oklahoma should have learned its lesson last January when Michael Wilson complained “I feel my whole body burning” as he was being executed in that state. The same month, Dennis McGuire made snorting and gasping sounds for ten minutes and then lived for another 14 minutes before he died in Ohio from an untested two-drug method, resulting in a delay of the next execution until November and a plan to use more drugs.

This failure to execute people without “cruel and unusual punishment” is more common that many people realize. Between 1890 and 2010, three percent of all executions were botched, and lethal injections had the highest error rate—about seven percent. In addition, electric chairs have caught on fire, and hangings have led to decapitations. Gov. Jeb Bush suspended the death penalty in Florida after Angel Diaz had to be given two injections and the killing took more than 30 minutes. The suspension was lifted 18 months later under a new governor.

According to Jimmy Carter’s new book, A Call to Action: Women, Religion, Violence, and Power, “the United States is the only country in NATO or North America that still executes its citizens, and Belarus and Suriname are the only exceptions in the Europe and South America…. One hundred forty-three countries have abolished the death penalty by law or in practice…; 90 percent of all executions are carried out in China, Iran, Saudi Arabia, and the United States.”

Evidence shows that the death penalty is not a deterrent to murder and other violent crimes because of the prevalence of these in the United States. The homicide rate in this country is almost three times greater than in Canada or any Western European country. In the U.S., Southern states have the highest murder rate while they perform over 80 percent of the executions, 35 percent of them in just Texas.

Executions increase homicide rates before, during, and immediately following these tragedies as people become desensitized to killing. The line of thinking is that if the government can kill enemies for vengeance, so should everyone else. Many law enforcement officials have also become desensitized. Susan Green, editor of The Colorado Independent, said the shortage of drugs for execution in Texas led the assistant Oklahoma attorney general to joke with a Texas colleague that he might be able to help Texas get the drugs in exchange for 50-yard-line tickets for a top college football game between the University of Oklahoma and the University of Texas. Emails revealed not only this exchange but also the fact that leftover lethal drugs were injected into the bodies of dead prisoners in what officials called “disposal purposes.”

Both prisoners to be executed last night are black, an example of the extreme bias against minorities, the poor, and those with diminished mental capacity. Scalia has said that it’s okay to execute mentally disabled people because the U.S. Constitution doesn’t rule against executing people with mental illness and diminishment except in severe cases. Homicide victims are six times more likely to be black than white, but 77 percent of death penalty cases involve white victims. Of death row inmates, 56 percent are black or Hispanic; 20 percent of the blacks were convicted by all-white juries.

The percentage of people in the United States who support the death penalty has gone from 80 percent in 1994 to 60 percent in 2013. Most older and white people support it, while young people are less enthusiastic, and ethnic minorities are solidly opposed. These are the people who hold the future in their voting records. The death of Clayton Lockett may also make a difference.

January 15, 2014

Utah, Oklahoma Overturn Marriage Equality Bans

Less than a month after U.S. District Robert Shelby decreed that banning same-sex marriage in the highly conservative state of Utah is unconstitutional, U.S. District Judge Terence Kern did the same thing yesterday in Oklahoma. U.S. District Judge Terence Kern ruling Both of them set up rationales that could be used in the remaining 31 states.

In Utah, Shelby referred back to the U.S. Supreme Court’s reasoning that “the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex.” Kern, however, uses a simple “rational basis” protection, far lower than the required higher level of scrutiny that other courts have used. He concluded that the two lesbian couples bringing suit had suffered no stigma because they could not marry. Instead he wrote:

“Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.”

In Romer v. Evans (1996) the Colorado Supreme Court struck down Amendment 2 of the state constitution that forbid protecting “those who suffer discrimination due to their sexual orientation” because the amendment violated the equal protection clause of the U.S. Constitution. That case did not move up to SCOTUS. In Windsor v. United States, (2013) the U.S. Supreme Court overturned part of DOMA, allowing the terms “marriage” and “spouse” to be also used by same-sex couples under the due process clause of the constitution’s Fifth Amendment. SCOTUS used the same clause ten years earlier when it decriminalized sex between same-sex couples in Lawrence v. Texas (2003).

The Supreme Court’s ruling less than seven months ago that created the impetus for court rulings regarding marriage equality was ambiguous: their decision failed to explain what protections that LGBT people should have. Thus Kern used Justice Anthony Kennedy’s language and tone.

The Windsor decision, the judge said, supports a plea for marriage equality because much of the reasoning of the Court majority about the purpose behind DOMA could also be applied to state bans on same-sex marriage. It supports marriage equality in the state, the judge added, because of the lengthy commentary in the opinion about states’ primary power to define marriage.

Shelby used dissenting Justice Antonin Scalia’s words when he struck down Utah’s same-sex marriage. Scalia predicted that the two successful rulings for marriage equality last summer, including Windsor, would end up legalizing nation-wide same-sex marriage. In his opinion, Shelby wrote, “In his dissenting opinion, the Honorable Antonin Scalia recognized that [legalized gay marriage] was the logical outcome of the court’s ruling in Windsor.” He then quotes from Scalia:

“In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion … is that DOMA is motivated by ‘bare … desire’ to harm couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

Shelby continued:

“The court agrees with Justice Scalia’s interpretation of Windsor. … And Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it. The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex.”

As Shelby did in Utah, Kern granted a stay of same-sex weddings in Oklahoma until an appeal is adjudicated. Yet 17 of the 50 states presently allow LGBT marriage, and Ohio recognizes same-sex marriages if one of the couple is dead. Litigants in over three dozen cases are challenging marriage equality bans in 20 different states. Only one-third of people in the country oppose marriage equality, down 12 percent from the 45 percent in opposition just two years ago.

Who are the judges who made these rulings? Judge Terence Kern, nominated by President Clinton, is a native of Oklahoma and a former Army reservist who easily won Senate approval. Robert Shelby is a registered Republican and former Persian Gulf War engineer. Sen. Orrin Hatch (R-UT) called him a “lawyer with an unwavering commitment to the law.” Tea Party member Sen. Mike Lee (R-UT) called President Obama’s nominee a “pre-eminently qualified” nominee who would be an “outstanding judge.” So much for the conservatives’ accusation of “judicial activism.”

Appeals from both Utah and Oklahoma will be heard by the ideologically split 10th Circuit Court of Appeals. Half of the ten judges were appointed by presidents of each party. One of President Obama’s appointees is Judge Scott Matheson Jr., a former federal prosecutor and the Mormon son of a former Utah governor.  

Supreme Court

The next few months will show whether more states will be required to recognize same-sex marriages or the U.S. Supreme Court—albeit reluctantly—dives into the fray once again.

Kern wrote, “Equal protection is at the very heart of our legal system and central to our consent to be governed.  It is not a scarce commodity to be meted out begrudgingly or in short portions.” Hopefully this argument can be used in the struggle to protect LGBT people from discrimination in marriage, jobs, housing, and the rest of our lives.

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