To anyone outside America it is very difficult to follow the US judicial process. The current cause celebre is as a result of a neighborhood watch volunteer, a white Latino, George Zimmerman, shooting and killing, on February 26, an African American, Travyon Martin, whom he alleged was acting suspiciously. The police did not charge Zimmerman, presumably, accepting his story of self defense and or his right "to stand his ground" under attack. It appears common cause that an altercation took place between the two after Zimmerman had reported to the 911 dispatcher his sighting of the teenager. Zimmerman was reported to have injuries and grass burns on his clothing.
The fact that Zimmerman was not immediately arrested evoked a nationwide outcry including marches lead by African American activists such as the Reverend Al Sharpton and Jesse Jackson, head of the Rainbow Coalition. There were even accusations of a police cover up as Zimmerman had originally been photographed in handcuffs and the investigating officer, who had recommended that Zimmerman be charged with manslaughter, (culpable homicide) was apparently overruled.
UNDERLYING ISSUES.
There is a perception in the Black Community, often backed by fact, that they are profiled by law enforcement for arrest and prejudicial treatment. Studies have been done that show there are higher incarceration rates for similar offences, for example among black offenders.
Furthermore, this belief does not emerge in a historical vacuum. There is the history of slavery, legal segregation till about 60 years ago with the denial of voting rights and lynchings the last of which was in 1951. In recent times there have been celebrated instances of profiling with police being accused of excessive force and shooting suspects purely on the basis of race. The notorious Rodney King incident and the New York shooting of Amadou Diallo are but two recent examples of the tensions these interracial confrontations can evoke.
Invariably these confrontations are between a white authority and a non white "victim". African Americans maintain that this profiling is more the rule than the exception. In a study commissioned by the NYPD in 2006 in NY the raw data showed that 89% of those stopped for suspected criminal activity where African Americans. However, the researchers found little difference in the treatment of those stopped and made some recommendations to the NYPD as to police - pedestrian interactions. There also has been a concerted effort by some state authorities to come to grips with the problem. More than 20 states have passed legislation to outlaw profiling. So it is fair to say the problem has been recognized and to a certain extent addressed.
THE "VICTIM'S" FAMILY
The Martin family have been measured in their comments. (Another custom unique to America is where families appear, accompanied by their lawyers, in the media commenting on their tragedy and the behavior of the legal system). The Martin's have had one consistent refrain. Why,was a non law officer who shot and killed an unarmed teenager, whom he was told by the 911 dispatcher not to confront, not arrested? Had the races been reversed and the shooter been Black and the "victim" been white there is little doubt that the shooter would have been arrested, they maintain.
THE UNIQUE AMERICAN ROLE OF THE MEDIA
A media storm arose, as it so often does, in an incident that crystalizes an issue over which there has been so much tension and animosity. The dramatis personae take on the mantle of representing differing sides of public opinion of the issue rather than the merits of the particular incident per se. The Martin tragedy became the issue du jour with everyone and everybody weighing in. Bill Cosby said it had nothing to do with race but everything to do with guns. Mike Tyson maintained that vigilantes should have killed Zimmerman. Tempers flared from supporters of both sides of the political divide. Legal experts, activists, jurists and talk show hosts have gone on endlessly on about the merits of the case, "the stand your ground" legislation, which broadens the defense options in a case like this, and the action or inaction by the police. This discussion has gained momentum all the more now that Zimmerman has finally been charged.
Now none of this would be allowed in other first world countries where the sub judice rule applies. This rule allows no-one to comment on a legal case in progress lest it prejudice the outcome, and should apply all the more in America as nearly every trial is a jury trial and no-one can escape the bohaai. First Amendment rights of Freedom of Speech, trump however, the risk of influencing potential jurors.
THE FLORIDA JUSTICE SYSTEM
The first response to this public pressure was that on March 22, Florida Governor Scott stepped in and took the unusual step of replacing the State Attorney, Norm Wolfinger, who was the law officer responsible for deciding how the investigation was to proceed. Wolginger had decided to convene a Grand Jury, which is usually a lengthy procedure, to decide if there was any case against Zimmerman. Scott replaced Wolfinger with another prosecutor, Angela Corey, who was designated with the title of a special prosecutor.
On April 11, Angela Storey announced that Zimmerman would be charged with second degree murder that carried a maximum penalty of life imprisonment. This in contrast with the original State's Attorney's initial decision that there was not even enough evidence to charge Zimmerman with manslaughter, (culpable homicide).
DIFFERENCES CONTINUED.
Distinguished lawyer and jurist Alan Dershowitz weighed in on this course of events. He stated that the problem with the American judicial system is that state prosecutors and judges are elected by popular vote. He alleged that Angela Corey had acted irresponsibly and even unethically by charging Zimmerman with murder where intent had to be proved. He said the facts that she presented to do so were pathetically weak. She was just pandering to her electorate. She hoped to get a plea bargain, (in this environment), where Zimmerman would plea guilty to manslaughter. Probably the best know criminal defense attorney in America, Marc Geragos, agreed with Dershowitz, on the lack of merits of Corey's case for murder.
"STAND YOUR GROUND" LEGISLATION FLORIDA.
It is fair to say the "Stand Your Ground" law is controversial. It was pioneered by a Marion Hammer who has strong affiliations with the National Rifle Association. This law states that an individual may stand his ground and not retreat and use deadly force even in a public area. The grounds for using this force are very broad and are under the rubric of, if the perpetrator, "had reasonable belief of a threat, (my emphasis).
Since the Law has been introduced there have been three times as many "justifiable" homicides in Florida. (A total of twenty states have similar legislation on their books). The law was opposed by several police chiefs and prosecutors at the time. John Timoney who was the police chief of Miami stated called it "The License to Murder Law" and would turn Florida into the tropical Wild West.
"Trying to control shooting by members of a well-trained and disciplined police department is a daunting enough task," Timoney said at the time. "Laws like Stand Your Ground give citizens unfettered power and discretion with no accountability. It is a recipe for disaster."
Thus if the perpetrator can prove that there was "reasonable belief of a threat" then he has immunity from litigation. This could be the first item of business in this trial and if the defendant can prove this he has immunity from further prosecution and litigation in a civil court.
AT THE END OF THE DAY.
The one positive result of what has followed in the public domain, surrounding this tragic event, is that the set of circumstances that resulted in this killing will see the light of day. Justice cries out for an explanation as to how a teenager, who was on an errand, was shot dead by a self appointed neighborhood watchman, who had been told by authorities not to approach him regardless of his, as it turns out, misplaced suspicions.
Wednesday, April 18, 2012
Monday, April 9, 2012
THE ROBERTS SUPREME COURT AND OBAMACARE
The most contentious case to come before the Roberts Supreme Court, the Constitutionality of "Obamacare", has broad implications in several arenas. Besides the political fall out and impact on health care consideratons, another acrimonious narrowly divided opinion will exacerbate the public's perception of the Court as being merely "motivated by politics". A recent CNN poll revealed that over 50% of the public already feel that the decision will be based on the Supreme Court Judges' well known political affiliations rather than the merits of the issues.
SUPREME COURT ERAS AND THE HEALTH CARE PROTECTION AND AFFORDABLE ACT
Supreme Court eras are usually named after their Chief Justices - hence for example we have the Burger Court, the Warren Court, the Rehnquest Court and now the Roberts Court. It is an open secret that Justice Roberts aspires to be a consensus Chief Justice who is anxious to break away from the Rehnquest Court's legacy where 5- 4 opinions were the norm. (The most contentious, being regarded as the most political of them all, Bush versus Gore.)
Roberts has maintained that the court must attend to it's institutional stature with great care. He maintains that if the court is careless with its political capital it will loose it's credibility and legitimacy as an institution. - "The Justices must not only be principled and non partisan they must also appear that way to the nation".
So after 7 years of Robert's leadership, where the norm is still 5-4 decisions on perceived partisan lines, here comes the historic Health Care Act the likes of which Presidents since Truman have tried to enact. (The Clintons were the most recent failure). This act is the center piece of the Obama Presidency. It followed months of campaigning and Congress battles. If declared unconstitutional it would represent a major reversal by the judicial branch of government over the legislative branch. This is not a case, for example, where an individual is claiming that his constitutional rights were violated by a strip search. This is a case that involves a service that costs one sixth of the Gross National Product, (1 in every 6 dollars spent), and affects every American.
Not for 80 years has a Supreme Court invalidated a Congressional Law of this nature, let alone one of this significance. Yet the oral arguments indicate that the majority of Associate Justices may be willing to do so to this 2,700 page law on the basis of only one it's provisions.
Should this case, with it's enormous political ramifications, have yet another 5- 4 result the Robert's era, as he fears, is destined to be labelled "political". Thus it represents Chief Justice Roberts with his biggest challenge, to date, to get a "consensus" judgement.
OBAMA UPS THE ANTE
The likelyhood of the Supreme Court striking the law down has not been lost on the President. He forcefully reminded the Court that this law was Constitutional with ample precedents to back it's legality. It was not an abstract argument, he emphasized, maintaining that it was crucial to over 30 million Americans without Health Care and would effect the whole American population giving them protections they have not had to date. Obama concluded that he was confident that the Supreme Court would not take the unprecedented step of delegitimising this law.
He also attacked conservative commentators who were asking for the law to be repealed:
"I just remind conservative commentators that for years, what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law," the president said.
THE CONSTITUTIONAL LEGAL ISSUES.
The crisp Constitutional point in this case is - has the Federal Government the right to mandate citizens to buy insurance or is this power only granted to the individual States. (This explains why Massachusetts's "Romneycare", which mandates it's citizens to do exactly what "Obamacare" does, has not yet been legally challenged). Those mandated under Obamacare would need to buy insurance as they do not qualify for governmental aid and nor do they have employee insurance.
To the average person this distinction between State and Federal Government is ridiculous and they are not even following the arcane legal arguments. They are just looking at the merits of Obamacare per se which includes endless provisions that inter alia do not allow insurance companies to refuse coverage if you have a preexisting condition and generally seek to provide affordable health care.
The constitutional provision that Congress passed this Act on was based on Article 1 Section 8 of the Constitution. This allows the Federal Government to regulate Commerce which crosses State lines. This includes services and the instruments needed to effect that service and any local activity that may impact on that commerce. There are several Supreme Court precedents from the New Deal era that approximate what is being asked for here.
THE CONSTITUTIONAL ARGUMENTS ON OBAMACARE
Very briefly the central argument of the complainants is that the Obama mandate does not represent a commercial transaction. The latter implies a willing buyer and a willing seller. The Act mandates that those who have not insurance from either their employees or do not qualify for government programs must buy their own. The complainants argue that someone who does not buy insurance is not a willing buyer. Thus the Act is not regulating commerce per se.
Most of the unwilling buyers would be young healthy people who feel they don't need any coverage. Also the complainants argue that medical insurance is generally covered by each state and not across state lines so that the Federal Congress did not have the authority to act.
By extension if this law is upheld the complainants extrapolate that the Federal Government could force people to do anything that the Federal Government wanted. The argument frequently came up that they could force people to eat broccoli!
The counter argument is that everybody needs medical care at one or another time and this can occur at any time. They then will go to an ER and everybody else ends up paying for those uninsured. Last year alone there was $43 billion of "free" care that had to be covered by the government or by increased insurance premiums. Also by your act of not purchasing health care insurance you thus harm others. The behavior of the non compliant will effect all across State lines.
THE ROBERT'S TASK.
From a legal world most legal pundits thought that the Supreme Court wouldn't even hear this case. One went as far as to say he would eat his hat if they did. Similarly from the legal world most believed that the government would have a large majority victory. This perception changed dramatically when the "conservative " judges launched into the lawyer representing the Government's case. They did so in a most disparaging fashion. Now the perception is this is going to be another 5-4 decision most likely in favor for repeal of the Health Care Act.
There are 5 votes that are immovable. These are the 4 "liberal" judges and Clarence Thomas. The latter is a strict constructionist and does not believe for one second that the Constitution is a "living organism". It is what it is for better or worse.
Justice Kennedy, the traditional swing vote, is the Associate Justice most likely to side with maintaining the law. Apparently Judges, Scalia, Alito and Roberts are to a lesser or greater extent said to be for "judicial restraint". The latter phrase includes avoiding to be seen to be too political in their judgements.
The oral argument leads one to believe that Kennedy and Roberts, while leaning to repeal the law, had some flexibility. That would create a 6 -3 result in favor of retention. If commentators are correct then Scalia and Alito can also be persuaded. Additional votes would create a consensus that would begin to help to remove the political label that has been given to the Roberts Court.
REACTION TO THE AGGRESSIVE BEHAVIOR OF THE CONSERVATIVE ASSOCIATE JUDGES
The above argument assumes that Justice Roberts indeed wants to change the perception of the Court. If this is so it will need skills and leadership that he has not shown to date. Besides the future of the Affordable Health and Protection Act the Roberts Court legacy is at a turning point. To use his own words the Court is in danger of loosing it's credibility as already indicated by the polls.
The criticism following the conservative Associate Justices' relentless drilling of the Government's attorney has been vitriolic. A piece by David Dow in the influential "The Daily Beast" called for the impeachment of the judges should they overturn the law. Bradley Joondeph, a former Clerk of Reagan appointed Sandra Day O' Conner, opined in a CNN blog that the Supreme Court is "playing with fire". He wrote that this was no ordinary case and the Judges must maintain the nation's faith that their decisions are grounded in legal principle rather than in partisan politics. Both Dow and Joondepth are legal scholars.
On the other hand there has been a sharp reaction by conservatives to Obama's pointed remarks. Obama's opponents have castigated him for bullying of the independent judiciary. Obama a constitutional legal scholar has maintained that he was giving his considered opinion. (Other Presidents have done so before him).
If anything it is the 5th Federal Circuit Court that have been accused of insulting Obama by demanding a writtern assurance that he accepts that the Federal Courts have the authority to interpret the Constitution.
AT THE END OF THE DAY.
At the end of the day those deprived of health care, or going bancrupt because of costs, for example, will not take the point that they could not get it because that the Law was found to be unconstitutional by 5 votes to 4. The cynics are further maintaining that this is, politically, a "win win" for Obama. If the Court upholds the law he moves on with his major legislation success intact. If they repeal it the Republicans will once again have to defend issues such as not ensuring health care insurance with those with pre existing illnesses, for example, with the argument that the market will sort it all out - a task that it has not achieved for over 80 years.
SUPREME COURT ERAS AND THE HEALTH CARE PROTECTION AND AFFORDABLE ACT
Supreme Court eras are usually named after their Chief Justices - hence for example we have the Burger Court, the Warren Court, the Rehnquest Court and now the Roberts Court. It is an open secret that Justice Roberts aspires to be a consensus Chief Justice who is anxious to break away from the Rehnquest Court's legacy where 5- 4 opinions were the norm. (The most contentious, being regarded as the most political of them all, Bush versus Gore.)
Roberts has maintained that the court must attend to it's institutional stature with great care. He maintains that if the court is careless with its political capital it will loose it's credibility and legitimacy as an institution. - "The Justices must not only be principled and non partisan they must also appear that way to the nation".
So after 7 years of Robert's leadership, where the norm is still 5-4 decisions on perceived partisan lines, here comes the historic Health Care Act the likes of which Presidents since Truman have tried to enact. (The Clintons were the most recent failure). This act is the center piece of the Obama Presidency. It followed months of campaigning and Congress battles. If declared unconstitutional it would represent a major reversal by the judicial branch of government over the legislative branch. This is not a case, for example, where an individual is claiming that his constitutional rights were violated by a strip search. This is a case that involves a service that costs one sixth of the Gross National Product, (1 in every 6 dollars spent), and affects every American.
Not for 80 years has a Supreme Court invalidated a Congressional Law of this nature, let alone one of this significance. Yet the oral arguments indicate that the majority of Associate Justices may be willing to do so to this 2,700 page law on the basis of only one it's provisions.
Should this case, with it's enormous political ramifications, have yet another 5- 4 result the Robert's era, as he fears, is destined to be labelled "political". Thus it represents Chief Justice Roberts with his biggest challenge, to date, to get a "consensus" judgement.
OBAMA UPS THE ANTE
The likelyhood of the Supreme Court striking the law down has not been lost on the President. He forcefully reminded the Court that this law was Constitutional with ample precedents to back it's legality. It was not an abstract argument, he emphasized, maintaining that it was crucial to over 30 million Americans without Health Care and would effect the whole American population giving them protections they have not had to date. Obama concluded that he was confident that the Supreme Court would not take the unprecedented step of delegitimising this law.
He also attacked conservative commentators who were asking for the law to be repealed:
"I just remind conservative commentators that for years, what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law," the president said.
THE CONSTITUTIONAL LEGAL ISSUES.
The crisp Constitutional point in this case is - has the Federal Government the right to mandate citizens to buy insurance or is this power only granted to the individual States. (This explains why Massachusetts's "Romneycare", which mandates it's citizens to do exactly what "Obamacare" does, has not yet been legally challenged). Those mandated under Obamacare would need to buy insurance as they do not qualify for governmental aid and nor do they have employee insurance.
To the average person this distinction between State and Federal Government is ridiculous and they are not even following the arcane legal arguments. They are just looking at the merits of Obamacare per se which includes endless provisions that inter alia do not allow insurance companies to refuse coverage if you have a preexisting condition and generally seek to provide affordable health care.
The constitutional provision that Congress passed this Act on was based on Article 1 Section 8 of the Constitution. This allows the Federal Government to regulate Commerce which crosses State lines. This includes services and the instruments needed to effect that service and any local activity that may impact on that commerce. There are several Supreme Court precedents from the New Deal era that approximate what is being asked for here.
THE CONSTITUTIONAL ARGUMENTS ON OBAMACARE
Very briefly the central argument of the complainants is that the Obama mandate does not represent a commercial transaction. The latter implies a willing buyer and a willing seller. The Act mandates that those who have not insurance from either their employees or do not qualify for government programs must buy their own. The complainants argue that someone who does not buy insurance is not a willing buyer. Thus the Act is not regulating commerce per se.
Most of the unwilling buyers would be young healthy people who feel they don't need any coverage. Also the complainants argue that medical insurance is generally covered by each state and not across state lines so that the Federal Congress did not have the authority to act.
By extension if this law is upheld the complainants extrapolate that the Federal Government could force people to do anything that the Federal Government wanted. The argument frequently came up that they could force people to eat broccoli!
The counter argument is that everybody needs medical care at one or another time and this can occur at any time. They then will go to an ER and everybody else ends up paying for those uninsured. Last year alone there was $43 billion of "free" care that had to be covered by the government or by increased insurance premiums. Also by your act of not purchasing health care insurance you thus harm others. The behavior of the non compliant will effect all across State lines.
THE ROBERT'S TASK.
From a legal world most legal pundits thought that the Supreme Court wouldn't even hear this case. One went as far as to say he would eat his hat if they did. Similarly from the legal world most believed that the government would have a large majority victory. This perception changed dramatically when the "conservative " judges launched into the lawyer representing the Government's case. They did so in a most disparaging fashion. Now the perception is this is going to be another 5-4 decision most likely in favor for repeal of the Health Care Act.
There are 5 votes that are immovable. These are the 4 "liberal" judges and Clarence Thomas. The latter is a strict constructionist and does not believe for one second that the Constitution is a "living organism". It is what it is for better or worse.
Justice Kennedy, the traditional swing vote, is the Associate Justice most likely to side with maintaining the law. Apparently Judges, Scalia, Alito and Roberts are to a lesser or greater extent said to be for "judicial restraint". The latter phrase includes avoiding to be seen to be too political in their judgements.
The oral argument leads one to believe that Kennedy and Roberts, while leaning to repeal the law, had some flexibility. That would create a 6 -3 result in favor of retention. If commentators are correct then Scalia and Alito can also be persuaded. Additional votes would create a consensus that would begin to help to remove the political label that has been given to the Roberts Court.
REACTION TO THE AGGRESSIVE BEHAVIOR OF THE CONSERVATIVE ASSOCIATE JUDGES
The above argument assumes that Justice Roberts indeed wants to change the perception of the Court. If this is so it will need skills and leadership that he has not shown to date. Besides the future of the Affordable Health and Protection Act the Roberts Court legacy is at a turning point. To use his own words the Court is in danger of loosing it's credibility as already indicated by the polls.
The criticism following the conservative Associate Justices' relentless drilling of the Government's attorney has been vitriolic. A piece by David Dow in the influential "The Daily Beast" called for the impeachment of the judges should they overturn the law. Bradley Joondeph, a former Clerk of Reagan appointed Sandra Day O' Conner, opined in a CNN blog that the Supreme Court is "playing with fire". He wrote that this was no ordinary case and the Judges must maintain the nation's faith that their decisions are grounded in legal principle rather than in partisan politics. Both Dow and Joondepth are legal scholars.
On the other hand there has been a sharp reaction by conservatives to Obama's pointed remarks. Obama's opponents have castigated him for bullying of the independent judiciary. Obama a constitutional legal scholar has maintained that he was giving his considered opinion. (Other Presidents have done so before him).
If anything it is the 5th Federal Circuit Court that have been accused of insulting Obama by demanding a writtern assurance that he accepts that the Federal Courts have the authority to interpret the Constitution.
AT THE END OF THE DAY.
At the end of the day those deprived of health care, or going bancrupt because of costs, for example, will not take the point that they could not get it because that the Law was found to be unconstitutional by 5 votes to 4. The cynics are further maintaining that this is, politically, a "win win" for Obama. If the Court upholds the law he moves on with his major legislation success intact. If they repeal it the Republicans will once again have to defend issues such as not ensuring health care insurance with those with pre existing illnesses, for example, with the argument that the market will sort it all out - a task that it has not achieved for over 80 years.
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