Once again, let's review "judicial activism."

Ted Cruz is a moron. He released a press statement this week regarding the US Supreme Court's determination that it would not hear any of the cases involving gay marriage and in that press release, he called the Court's determination "judicial activism at its worst."

Please. Please stop. You're making my head hurt. 

Judicial activism actually means something. It has a real, legitimate, actual meaning. And that meaning isn't "I don't agree with them." 

In order for a court to be considered "activist," the court must do something. It must act. Weird, huh? It must make a decision on a case. 

The Supreme Court did exactly the opposite of that. It did nothing. Nothing at all. Not one damn thing. Therefore, it cannot be considered "judicial activism" because the Court won't hear the gay marriage cases. 

Here's how judicial activism looks in real life: 

The Adrian Peterson situation and the problem with prejudging

So, as basically everyone has heard, Vikings football player Adrian Peterson has been indicted by a Texas grand jury on child abuse charges. Initially, he was deactivated from the team & prevented from playing in one game this past Sunday; the team owners then reactivated him to play on Mondaywhile the criminal case worked its way through the court system. The Radisson pulled its sponsorship of the entire Vikings team as a result of the indictment. Nike & Wheaties also severed ties with Peterson. On Tuesday, Minnesota Governor Mark Dayton weighed in on the situation, calling Peterson's alleged actions "a public embarrassment" & while providing lip service to the idea of innocent until proven guilty, said that the Vikings should have continued Peterson's suspension until the court case was finished. Senator Al Franken also called for Peterson's suspension to be reinstated. Finally, on Wednesday, the Vikings reversed course under the media & political pressure & placed Peterson on the exempt list, meaning he must stay away from the team.

This is all the result of an accusation. Not a conviction. Not a verdict of guilty or an admission of committing a crime. An accusation.

So much Supreme Court to discuss this week!

So. It's been a big week or so in Legal Nerd Land. The Supreme Court has recently issued two high-profile cases that have attracted a lot of attention.  

The first one to be released was Riley v. California, which I previously mentioned when it was granted cert. It was a case about whether or not police need a warrant to search your cell phone when you've been arrested.  The Supreme Court unanimously decided that police did need a warrant.

Here's the sitch: 

Minnesota's high court gets it wrong again

I'm a bit late on this, but it's still interesting, so I wanted to touch base on it.  Recently, the Minnesota Supreme Court ruled that the necessity defense does not apply in cases that deal with a person's loss of their driver's license for a DWI. 

It's a case called State v Axelberg and it's a case where the court had a perfectly situated defendant for the necessity defense, but instead of doing justice, the Court did nothing and furthered the injustice of the situation. 

Everyone has the right to bail in Minnesota

Recently, there was an article in the Star Tribune about the ongoing criminal cases involving victims Palagor Jobi and Anarae Schunk.  In the article, it states that "Monty and Mariana Schunk are pushing for changes to the bail and sentencing system for repeated violent offenders.  They have proposed the Anarae Schunk Repeat Violent Offender Bail Law that would deny bail to a person with two prior felony convictions, one of which was a violent crime, when that person is charged with another violent crime involving a gun or other lethal weapon.  They have also proposed an Anarae Schunk Repeat Violent Offender Prosecuting and Sentencing Law that would impose a mandatory life sentence without parole for a person convicted of a third violent crime involving a gun." 

There's much to say about both of these proposed laws, but let's start with the first proposed law for this post.  The one involving bail.  

My boss has always said that if a law is named after a person, it's probably not a good law.  And I've found that to be true.  Usually laws that are named after a person are sledgehammer solutions and are a reaction based on a particular case involving a particular set of circumstances that are terrible, but not common.  Yet, the law catches people in it that it wasn't necessarily intended to initially, because it's not a thought out and rationally debated law.  It's a law based on emotion and terrible circumstances.  

However, this proposed bail law is not only a bad idea, but it's also guaranteed to fail.  Here's why...

This line of reasoning terrifies me a little

So, I've talked before about the McNeely/Brooks decisions on DWI cases in previous posts, here, here, and here.  We've now been in court battling these issues and there are plenty of varied arguments that are being utilized by both the prosecution and the defense to support their positions. 

For the most part, I understand why the prosecutors are going with certain arguments that they are using.  I disagree w/ the application of the legal concepts they are relying on, but I can at least understand the logic that got them to that argument. 

But, I have seen one that has been argued that I find truly mind-boggling.  If I were a prosecutor, I would not be able to argue it because I have such a visceral reaction to it. 

The argument, in sum, is that DWI cases should be considered a "special needs" situation and should be completely exempted from the warrant requirement and the protections of the 4th Amendment. 

If you didn't choke a little right then, you're not understanding the implications that argument has for you and for everyone if it were to prevail. 

"Free speech" doesn't mean you can be an asshole without repercussions

Let's play a game I like to call "civics lesson."  This is where we discuss things that the general public should have learned in school in civics class, but apparently either forgot it or never learned it. 

Today's game centers around the First Amendment and specifically, the right to freedom of speech.  As you may have heard, some guy on that stupid show "Duck Dynasty" made some assy remarks about black people and gay people. Then he got suspended from the show. 

First of all, I don't care at all about that show or that guy. That show looks stupid as hell to me and I have less than zero interest in watching it.  The only reason I would even mention it in my blog is because it's caused so many people to say "But the TV network is violating his right to free speech by suspending him!" (I'm looking your way, Sarah Palin...)  Which is 1,000,000% wrong.  And it's driving me a little crazy, so I think we should discuss. 

The U.S. needs a new Constitution like a fish needs a bicycle

Recently, there was an article in The Atlantic about why the U.S. needs a new Constitution. Primarily, the concerns expressed were that the current Constitution is full of holes, promotes gridlock, and is extremely difficult to change. The problem w/ this premise is that the Constitution was designed to do precisely those things; those are not failures on the part of the Constitution, those are the things it was intended to do. 

Drugs are bad. Drug laws are worse.

A Duluth shop owner and two employees are on trial for 50+ felony charges alleging that they sold "synthetic drugs," in violation of federal laws. He is also facing a number of state charges for the same reason. 

He isn't alleged to have been pushing heroin on innocent schoolchildren at the park or anything so dastardly as that.  He's alleged to have sold products that are used to get high but that aren't what people normally think of when they hear "drugs." 

These so called "synthetic drugs" go by a variety of different names. Plant food, bath salts, K2, spice, etc. They are often packaged and sold as a product w/ a legitimate use, for example, plant food or bath salts. Some are sold as potpourri. Almost always, the packaging will have a label somewhere on it that clearly states: Not For Human Consumption.  

Defending the public defenders

This article is probably the most offensive thing I've read about public defenders in a long time. It's so full of ridiculous assertions I barely even know where to begin. Let's review the idiocy put forth in this moronic article, bc I'm angry about it and feel like eviscerating it. 

Jury verdicts: what do they mean? Zimmerman, etc.

I don't have much to add to the cacophony of opinions on both sides of this George Zimmerman/Trayvon Martin trial. Everything that could be said about it has been said. But this case, along with all the other media-fodder cases, has polarized people.

The problem with this polarization is that there were only so many people who sat inside that courtroom day after day after day, and who heard all the admissible evidence. Yes, Zimmerman's trial was available via live stream, but that doesn't mean that people who weren't on the jury but who watched it via live stream are in a position to give opinions on the justice system as a whole. For one thing, there were discussions on evidence that were heard outside of the presence of the jury. As a practicing attorney, I can safely say that discussions on evidence heard outside of the presence of the jury are discussions about things that, often times, are inappropriate for a jury to hear, as doing so would improperly impact their decision. So, by watching the live stream of the trial or hearing/reading about things that the jury was not privy to, you have already compromised your ability to fairly assess the situation.

DNA swabs and the Fourth Amendment, Round Two: Why Fingerprints and DNA are Different

First of all, OMG you guys, I made it into the MPR News Cut blog! I've made it in there a couple of other times, with a couple other posts, and I always feel really honored that my stream-of-consciousness ramblings are worthy of Bob Collins' notice. But this one was super exciting because he said yesterday's DNA post was "outstanding" and that "this is the kind of writing that legal reporting needs; it needs to wake up the people who think if they didn't commit a crime, what's the big deal about cases involving people who do?" So basically, I kind of felt like I won an Emmy or something. :D  

Now that I'm done gushing w/ excitement, let's get down to business.  Today's post is in response to a few reactions that I got about the DNA analysis from yesterday. Mainly, the primary question I was seeing was, "How is this different than taking someone's fingerprints for identification?"

I did answer that a little bit in yesterday's discussion, but I didn't fully go into it since there were so many things to be upset about and the post was getting pretty long. So, let's go into it a little bit more thoroughly and explore why this is NOT like fingerprints.

Fourth Amendment, Schmourth Amendment.

So, I couldn't not get mouthy about the latest Supreme Court travesty decision, Maryland v. King.  It was just released today and it's pretty much the worst.  If you're not familiar w/ it (and I'm guessing you're not because you probably have a life and don't read this kind of stuff for fun), the quick and dirty version of the case is as follows: 

Guy named King gets arrested for a "serious" offense (assault charges).  While he's being booked for this charge, the police collect a buccal swab from him as part of the booking process. (This is not routine in all states--yet. But I am guessing it will be soon after today's decision...).  Once they had this, they eventually ran it through a database of unknown DNA samples collected from other crimes and--what do you know--it matched DNA collected from an unknown perpetrator of a rape.  Boom, Mr. King now finds himself facing a new charge because his DNA matches that unknown DNA from the rape. 

The question presented was whether police could obtain a DNA sample from a person who was arrested--not convicted, just arrested and thereby still presumed innocent--without needing to get a warrant.  Now, pretty much every state allows the collection of DNA evidence to be collected from convicted persons.  That's a different situation entirely--those people have actually been found guilty and convicted of a crime.  However, when we are at the arrest stage of the proceedings, the person is not convicted and is not guilty of any wrongdoing. 

I am SO proud of Minnesota right now!

The Senate passed the bill legalizing same sex marriage.  It passed the House on Thursday of last week.  Governor Dayton is signing it tomorrow.  

I am so overwhelmed with excitement about this that I could pop. 

Ugh.

Everyone is all abuzz on the interwebs about the Boston bombing suspect and Quarles, a case which I'm sure no one other than nerds and lawyers and nerdy lawyers knew about before this week, and Miranda warnings.  I could add more to the debate, but I think it's easier to just tell you to go read this blog posting about it, because it's very well-written and explains everything very nicely. 

This is my last day to be a 20-something.  I feel like I have to start being a grown-up or something tomorrow and who wants to do that?  Blech. Pass. 

In make-my-Monday-even-worse-news, YKW texted me this morning to apologize for forgetting to tell me happy birthday yesterday.  Problem is that my birthday isn't till tomorrow. Really?? Really?? Six years together and he's already forgotten my birthday?  Thanks, pal.  Glad to see how memorable our effing marriage was to him.  It shouldn't bother me.  I should just ignore it and not let it be a concern at all.  But it does bother me.  I spent 6 years with that guy.  I was freaking married to him.  And then he forgets when my birthday is.  Ugh.  Whatevs.  I guess it's just one more reason to think that perhaps I dodged a bullet by him divorcing me--otherwise I'd be stuck w/ him for the rest of my life. 

All right, that's enough complaining from me for now.  Off to go look at adorable kittens to help cheer me up.

Pictures in the Media: The Good, The Bad, and The Graphic

The bombings at the Boston Marathon are absolutely horrible.  I am once again completely unable to grasp why someone would choose to do something so awful.  It seems like these type of events continue to happen over and over again--be it the bombings today, the Sandy Hook school shooting, the theater shooting, etc. Whatever it is, it's always horrible. 

There are some extremely graphic photos from the bombing available on the internet now.  Most of them are coming by way of Twitter or other social media sites and are being shared over and over again.  And inevitably, some people object to such graphic, disturbing, horrific, and tragic images being plastered all over for everyone in the world to gawk at. 

It's an understandable sentiment.  Often there are victims in these photos, people who didn't ask to be hurt or killed, who didn't agree to be photographed, who are now dealing with something completely unimaginable, who are vulnerable and unable to ask that they not be photographed.  And the images are haunting and deeply disturbing.  One photo shows a man being wheeled in a wheelchair who has clearly just had both of his legs blown off below the knee--the bones are gaping out in the photo and it's incredibly upsetting to see that. 

So the question arises of whether or not such images should be made available for the public to view.  Graphic, disturbing, and victim-filled photographs.  Should they be censored? Should they not be aired? Should we be allowed to see these things?

I think we should. 

It's safe to say most women would not appreciate this...

I find the most disturbing part of this story that, not only did this lawyer have sex with his client, he then BILLED her for it! Insanity...
http://m.twincities.com/twincities/db_39164/contentdetail.htm?contentguid=DOPbyP8h

Sometimes "justice" doesn't feel very just...

http://m.twincities.com/twincities/db_39829/contentdetail.htm?contentguid=jnn2OvWr
I think this is completely unnecessary. If you don't want to click the link, the nutshell version is that a 4 year old got his hands on an improperly stored and loaded gun and accidentally shot and killed his two year old brother. Now the state has charged the father w/manslaughter and endangering a child, both felonies, because the father didn't store his guns properly (he apparently had a small arsenal of guns in the home).
Yes, I get it: he should have stored the guns in a safe way so the children could not have accessed them. If he had, the child would still be alive. But, I'm sure he already knows that, seeing as how he has lost his son. I'm sure that he is struggling w/ unimaginable grief and pain and, yes, even guilt and regret. He is paying for his bad decisions in the most excruciating way possible, by burying his tiny son. How does charging this man do any good?
He is now looking at two felonies, including prison time, despite never having any previous criminal convictions. He is dealing with the loss of his son, he and his family are reeling from this tragedy, and now he and his family have to deal with the stress and strain of criminal charges.
Why do this? It doesn't bring the child back. Assuming he and his wife are still together, it won't help the victim's family feel closure but will only further tear the family apart if he is sent to prison. I doubt it will "correct" any "criminal" behavior in this guy, since it doesn't appear he has criminal predilections (given his lack of criminal history) but rather lacks judgment skills. And I would guess that he won't ever store his guns in this manner again. So what purpose does charging him serve? Prosecutors have  the power and ability to use discretion in charging cases. Maybe as a defense attorney, I'm missing something that a prosecutor would see that puts a different light on this. But I just don't get why some prosecutorial discretion wasn't used to say, "You know what? He is going to be paying for his decisions for the rest of his life. Criminal charges won't correct, cure, vindicate, or help this situation one bit."
Like I said, maybe I'm not seeing something. But putting aside my "lawyer" hat and viewing this simply as a regular person with a heart, I still don't get it.

So, May 21, 2011 is supposed to be Judgment Day, followed by misery for anyone who isn't Raptured. At least I got to go to Hawaii before all that happens.