Portrait of a Beatdown

Lest you think I was exaggerating in my prior post - here's some of the relevant court transcript from HSBC Bank USA, NA as Trustee for Nomura AAC vs Orlando Eslava.

Yves calls it "a doozy."

I call it art. Some artists work in clay, some work in oils, Miami-Dade County Circuit Judge Jennifer Bailey works her magic in righteous indignation. Unlike the rest of us, Judge Bailey is empowered to act on her indignation.

By way of prologue HSBC Bank has previously been ordered by the court to post a bond to indemnify the defendant - whose house they have foreclosed on despite not having the mortgage note that establishes that the house is rightfully theirs. The deadline has passed without the bond being posted. The court is not amused.

HSBC Bank is represented by a Mr. William Huffman, the Florida Default Group by Ms. Suzanne Hill, and the (reserved and presumably gleeful) attorney for the defendant, Orlando Eslava is a Ms. Sheleen Kahn.

The curtain rises

THE COURT: And so then you know what you do? You file - if you have a problem with the court order and you get inconsistent directions from your client, you file a motion for extension of the time to file the bond, you come forth and say to the Court the case is in loss mit[igation] hold, can we postpone the filing of the bond? Can we give up the sale date so that I can give it to somebody else who really needs to sell ap piece of property on the courthouse steps? Instead of just ignoring a court order, because that's what happened here.

MS HILL: I don't disagree that it could have been handled much better. I do agree to that.

THE COURT: I appreciate your diplomatic response, but is there any reason why the Court should not issue sanctions in this case? I mean, the court order was simply, based on what you're telling me, ignored because the client took the file in loss mit[igation] hold.

MS. HILL: Well, it was not complied with, that is correct, your Honor. And it was because it was on hold.
     And Mr. Huffman honestly believed that if the case was still on hold, he had no objection to having the case dismissed.
     As far as opposition at that hearing, Mr. Huffman believed he conveyed instructions to the local counsel that the case was on hold and there was no opposition.
     I can't speak to what was said at that hearing --

THE COURT: Let me just be clear. I'm not going to sanction Mr. Huffman. Mr. Huffman, you know, he's just doing what the e-mails tell him to do. I know that.
     At some level there is responsibility on the part of this court to make sure that notwithstanding whatever kind of sloppy operation the plaintiff is running, that court orders are complied with.
     And Mr. Huffman, at the end of the day, this trust is going to be over and at the end of the day some day this foreclosure crisis is going to be over. And you need to decide what kind of lawyer you're going to be. Because at the end of the day you're responsible for your client's compliance with court orders.
     And saying, oh, well, my client told me this, is not a defensible position because you swore an oath to follow the Rules of Civil Procedure and to follow the rule of law. And at the end of the day when they bury you, the words "HSBC Bank USA, NA as Trustee for Nomura Asset Acceptance Corporation, Mortgage Pass-through Certificates Series 2006--ARI will probably appear nowhere in your obituary.
     So, you know, the bottom line - and I'm not giving you a lecture that I am not routinely delivering to foreclosure lawyers at this point in my career, which is, all lawyers have is your reputations. We don't make widgets, we don't buil[d] clocks, we don't build cars. We have nothing but the pleadings we file and sign our name to to evidence the quality and integrity of who we are.
     And when you get a court order that says post a bond -- and you're being required to post a bond for a very logical reason. It's a trust. It's going to expire by its terms.
It's not the Bank of America. I don't know if it's going to be there in six years. And you've lost the note and you're required to indemnify the defendant and therefore you have to post a bond.
     When that order is simply ignored and further motions for clarifications with the Court are not sought, you know, yes, do I understand completely that this is the client not knowing the left hand from the right had, yes; but at the end of the day, you're the lawyer, you're responsible.

MR. HUFFMAN: Yes, your Honor.

THE COURT: How many people currently work in your office?

MR. HUFFMAN: Attorneys or --

THE COURT: Attorneys.

MR. HUFFMAN: Fifty.

THE COURT: How many files are you currently responsible for?

MR. HUFFMAN: I don't have that number. I'm not sure.

THE COURT: How many cases can you tell me you know anything in detail about the loss mitigation status of the file?

MR. HUFFMAN: Well, the way it's set up, the bank handles the loss mitigation separately.

THE COURT: So the answer is zero. You're filing pleadings in court every day and you don't even know what's going on with the case.
     And see, the really interesting thing to me as a judge is that in no other species or kind of law would that be remotely acceptable or, frankly, anything short of malpractice. But somehow in Foreclosure World everybody things that that's just fine, that you can know absolutely nothing about your files and walk in here and ask judges for things left and right without even knowing what's going on.
     And, you know, ultimately, the law firms are going to start doing that at their [peril].

[........]

THE COURT: ...And I'm not trying to crucify Mr. Huffman just because he happens to be the guy that I hauled in here today, but the upshot of it is the bond was not posted. How much was the amount of the final judgment?

MS KHAN: Judge, if I may look in the file?

MS HILL: [$]207,238.72

THE COURT: Did the plaintiff acquire title [to Mr.Eslava's house] at [the foreclosure ] sale?

MS. HILL: Yes, your Honor.

THE COURT: What's the status of the property? Does anybody know?

MS. KAHN: Your Honor, Sheleen Khan for the defendant.
The defendant is paying on direct debit from his account every month. This will be his fifth payment under the HAMP program, your Honor.

THE COURT: Okay. I think as a sanction what would be appropriate is to direct HSBC, who failed to comply with the Court's order, the only -- there's nobody here from HSBC to offer any --

MS. HILL: Well, Mr. Huffman is here on behalf of HSBC today, as well.

THE COURT: But he doesn't know anything about the loss mitigation status. I just asked him.

MS. HILL: It's our understanding in this case that it is still under loss mitigation, it is being reviewed by HAMP for permanent modification.

THE COURT: Mr. Huffman, please rais your right hand.

(Thereupon, William Ward Huffman, III Esq. was duly sworn by the Court.)

THE COURT: What's your name?

MR. HUFFMAN: Bill Huffman.

THE COURT: What was the loss mitigation status on March 4, 2010?

MR. HUFFMAN: It was on hold for --

THE COURT: Tell me what was going on. How much had the defendant paid in? Had the defendant made any HAMP payments? Was the defendant formally enrolled in a HAMP program? Was the defendant in a HAMP trial period for HAMP?

MR. HUFFMAN: I knew the defendant was in a trial period for HAMP.

THE COURT: When was the defendant put into a trial period for HAMP?

MR. HUFFMAN: My file went on hold November 6 of 2009, so I knew they had been in the trial period since that time. I didn't know the exact date.

THE COURT: December what?

MR. HUFFMAN: It was November 6, I believe, 2009.

THE COURT: What was the date of the final judgment? December 9, 2009.

MR. HUFFMAN: The hearing was, I believe, November 5 and the judgment was signed December 9.

THE COURT: So you have a final judgment hearing on November 5 and the file went on hold November 6?

MR. HUFFMAN: Correct.

THE COURT: When was the file HAMP approved?

MR. HUFFMAN: It hasn't been fully approved at this time.

THE COURT: When was the file HAMP approved for trial modification?

MR. HUFFMAN: From my knowledge, it was November 6.

THE COURT: But I'm not asking you about your knowledge. Because you're here to testify on behalf of your client.

MR. HUFFMAN: Okay.

THE COURT: So on behalf of HSBC Bank USA, NA as Trustees for Nomura Asset Acceptance Corporation, Mortgage Pass-through Certificates Series 2006-ARI, when was Mr. Eslava's HAMP documentation accepted?

MR. HUFFMAN: I don't have -- I didn't see the doc to see when he actually signed the preliminary mods. I don't know the exact date. I just know that I was notified on November 6 to place my file on hold.

THE COURT: Mr. Huffman, respectfully, can't answer the questions I have because --
I'm going to sanction the bank. I'm not going to sanction Mr. Huffman. I could because I think Mr. Hoffman's conduct was contemptuous of a court order. But I'm also keenly aware that a comtempt finding from a judge has ramifications throughout the rest fo a laywer's career, and I'm really trying to avoid that.
     What I'm trying to give is, for lawyers that handle these cases, a wake-up call to say this is your life, this is your career on the hook and you guys better wake up and smell the coffee.
     But he cannot answer the questions for me to tell me the nature of the contempt.
Why wasn't a bond posted in this case pursuant to the court order?

MR. HUFFMAN: When I saw the order from March 4, I kind of read it --

THE COURT: Why wasn't the order -- the bond was ordered posted -- when did I order the bond? March 4. Okay.
Why wasn't a bond posted by April 4?

MR. HUFFMAN: When I saw the language, I thought it had two options, either post the bond by April 4 or have the case dismissed. Because our file was still on hold April 4, I just chose to allow the case to be dismissed.
     Instead of posting the bond, I though that was an option I had. I thought it would be in the best interest of all parties. I didn't want to incur any more fees for the defendant in this case by moving the case forward.

THE COURT: Okay. Then as a sanction, the Court will follow the path chosen by Mr. Huffman. I will dismiss the case. I will dismiss the case with prejudice.
The note, which was canceled by this Court pursuant to a final judgment is null and void.    
     Mr. Eslava is relieved of the debt.

     The title shall be conveyed back to Mr. Eslava by the bank -- by the trust -- as the legal liability for the note no longer exists.
     The basis for this sanction is the contemptuous noncompliance with the Court's order to post the bond.
     Should, however, any claim ever be pursued against Mr. Eslava on the note which was the subject of this case, since the note was lost, HSBC Bank USA, NA, as Trustee for Nomura Asset Acceptance Corporation, Mortage Pass-through Certificates Series 2006-ARI shall jointly and liablely (sic) with Florida Default Law Group, PL, and any successor law firm, be responsible to hold harmless and indemnify Mr. Eslava from any liability should the orginal appear in the context of another case.

MS. HILL: Your Honor, if I may just briefly respond?
     I believe under the case law that in order to award sanctions, there has to be a finding of willfullness and bad faith on the part of Mr. Huffman.

THE COURT: No, this is on behalf of HSBC. I'm finding wilfulness because -- I'm not making Mr. Huffman responsible for the $207,238.72. I'm saying HSBC has been offered an opportunity to come and testify to this Court about why all this confusion erupted. They have given me Mr. Huffman. Mr. Huffman respectfully, can't answer very many of my questions in detail because all he knows is that the file was put on hold. It was put on hold the day after a final judgment was entered at the behest of the bank.
     Now, I would like to know why the bank came in here one day to get a final judgment and the next day to put a file on hold. But that's really a sideshow. Really the big question is why didn't they comply with the order of March 9? Why did they simply ignore it.
     And that answer is ["]we put the file on hold["]. That's a contemptuous answer. A bank does not have the authority or a trust does not have the authority to ignore a court order simploy because they are making business decisions on a file. And that's really where we are at.

MS. HILL: Respectfully, I understand, your Honor.
     In this case, Florida Default Law Group is taking responsibility for its actions. And I would respectfully submit that canceling the underlying indebtedness woudl not seem to fit the failure of Florida Default in this case on behalf of the bank in complying with the order. Florida Default is more than willing to stand before you and apologize.

THE COURT: No. No. No. This is way beyond -- you know, look, I don't want apologies. I want performance. I want responsible attorneys who meet the basic standards of knowing what the Sam Hill is going on in their files.
     I want acknowledgment that says, look, we understand that the court system is facing a massive number of foreclosures and we are not going to contribute to that burden by causing useless work by the Court.
     Which is really what I just got told.
What I got told is, Judge, the guy was already approved for HAMP by November 6, so the hearing on November 5, you really didn't need to do that.
     Because for every hearing that I do on these cases, the reason why I get this packet is I check service on every defendant, I look at the note, I make sure there's an endorsement. The fastest I can do one of these is about seven minutes. The slowest I can do it, if it's out of order, if it's disorganized, if there's things missing, which may well be the case in this case because the hearing was November 5 and the order wasn't entered until December, which means that there may have been missing items, it can take as much as 15 minutes or a half an hour. So the bank wasted my time on that.
     They wasted my time -- and I don't care about my time because I'm paid the enormously high sum of $144,000 to be here every day.
     But the second waste of time was then they come in and opposed the defendant's motion to cancel the sale. And we had a hearing and we talked about that. An I would imagine that took somewhere between 12 to 17 minutes, depending on how it went.
     And then they come in and walk in a motion to cancel the sale.
That's three useless, completely idiotic events. And if Florida Default wants to make HSBC whole in this, then that's between them and their carrier.
     But the bottom line is that's the sanction that the Court has ordered. Mortgage foreclosure is an quitable remedy. The plaintiff in this instance, whether it's through its own conduct -- because, frankly, I can't -- what Florida Default is telling me is we're just doing what they're telling us to do. They told us to put a file on hold.
     If this is how a bank is going to conduct its business, then the bank should be bearing the sanctions. Florida Default can cut whatever deal it wants to cut with them, but at the end of the day, the bank is responsible for this.
     Thank You.

MS. HILL: Thank you, your Honor.

THE COURT: I need the transcript ordered, please, and a simple order attached that adopts the transcript as my order, because I think that's going to be the cleanest way to do that. And I will direct that the transfer of title occur within 30 days.

Then the attorney for the defense realizes this is her moment.

MS. KAHN: Your Honor, if I may add, I have an affidavit in support of fees, attorneys fees, reasonable fees.

THE COURT: How much?

MS. KAHN: [$]1,222, your Honor. 6.11 hours.

To the surprise of no one, Ms. Kahn gets her money.

Fade to black.

Fin.

Reaching Out

The Milwaukee Journal Sentinel published a letter from Dane County District Judge John Albert to the union protesters:

Members of the Rotunda Community:

Today, I have ruled in favor of the Plaintiffs concerning the issues before me on access to the State Capitol of Wisconsin. After three days of testimony, the record establishes that the recent protest was unprecedented in the history of the state of Wisconsin. Thousands of people peacefully protested for two weeks and no injuries or damage to personal or government property occurred.

I credit that to the restraint and discipline of the protesters. I further commend law enforcement supervisors and every individual policeman or policewoman for the discipline and restraint shown during these unusual times.

The order that I will issue granting the Plaintiff's relief will contain what I consider to be a reasonable restraint on the time, place and manner of future demonstrations and protests. The restraint is as follows. Staying after the building is closed, is prohibited. Protests and demonstrations can be held at any time when the Capitol is open during normal business hours and, of course, if either house of the legislature is in session or any public hearing is being held.

I have attached a copy of a Notice requiring that you peacably vacate the State Capitol after business hours today. My intent is to facilitate the reopening of the Capitol consistent with the free assembly and free speech provisions of the Wisconsin Constitution as well as the parallel provisions of the U.S. Constitution.

It is my sincere hope that you honor the Notice and do your part to adhere to the principals of non-violent protest that has characterized these events.

Civil disobedience is always a citizen's option but understandably brings consequences to those exercising that right. If you stay you can expect that you will be removed in a humane manner and without excessive force.

In the interest of avoiding injury to anyone, please obey the Order.

Judge John C. Albert.

On the List of Sentences I Didn't Expect to Read...

This would appear somewhere near the top:

The New Orleans police officers charged with shooting Henry Glover and burning his body might not be allowed to use the defense that they were just following orders if federal prosecutors get their way.

Ye gods.

Commensurate With The Threat

(Via Newshoggers)

Found this interesting - via Thoreau (not that one, this one):

The feds have arrested 10 people charged with spying for Russia. I do not know the validity of the evidence, so I cannot comment on that. I can, however, note that these people were charged with crimes in a court of law.

Now, charging people with crimes in an open court of law is perfectly fine if we’re merely talking about people accused of acting at the behest of a nuclear power with a global intelligence network, a navy and airforce, oil, natural resources with which they play politics with neighbors, and a $1.2 trillion GDP. Sure, they may have some resources behind them, but at least the threat is manageable.

On the other hand, if we’re talking about a small network of guerrilla fighters whose leader lives in caves and whose fighters are armed with at best shoulder-mounted rocket launchers, well, you simply cannot charge them in an open court. The risks are far too great.

He shoots, he scores.

Murder is Murder

...and thankfully, the law doesn't recognize a political exception.

From the Philadelphia Inquirer:

WICHITA, Kan. - The judge in the trial of a man accused of murdering an abortion doctor dealt the defense a severe setback yesterday, ruling that the jury cannot consider a lesser charge of manslaughter.

The ruling came hours after Scott Roeder took the stand in his defense and admitted killing Dr. George Tiller, saying he acted to save the lives of unborn children.

...

Roeder testified that he considered elaborate schemes to stop the doctor, including chopping off his hands, crashing a car into him, or sneaking into his home to kill him.

But in the end, Roeder told jurors, the easiest way was to walk into Tiller's church, put a gun to the man's forehead, and pull the trigger.

Roeder calmly repeated his public admission of months ago - that he killed Tiller to save unborn children.

...

After Roeder's testimony, District Judge Warren Wilbert ruled that the jury would not be permitted to consider the manslaughter charge because abortion, including late-term abortion, is legal in Kansas and because Tiller did not pose an imminent threat.

"There is no immediate danger in the back of a church," the judge said. He also ruled out a second-degree murder conviction, which does not involve premeditation, because it was clear Roeder planned the killing.

Late edit: Guilty on all counts. Damn right.

Federal Court to the Corps: pay up

A small acknowledgment of the colossal failure of the Army Corps of Engineers to protect New Orleans:

"It is the court's opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and short-sightedness," U.S. District Court Judge Stanwood Duval Jr. wrote in his lengthy ruling, referring to the Mississippi River-Gulf Outlet canal.

Oh, and they ordered a payout of just over $700,000.

I'm picturing a metaphorical levee, holding back hundreds of thousands of similar legal claims.

-and I'm thinking that levee won't hold.

Maj. Hassan, Political Correctness, and Utter Insanity

“If Hasan was showing signs, saying to people that he had become an Islamist extremist, the U.S. Army has to have zero tolerance,” [Senator] Lieberman said. “He should have been gone.”

First off, somebody get that man a puppy already. I'm tired of listening to his desperate pleas for attention.

Second - let's just look at the idiocy of his remark. I've yet to see an account of Maj. Hassan saying to people he had become an Islamist extremist. I'm going to go out on a limb here and speculate - but I'd guess when a person consciously decides to become an extremist, I think it's atypical for them to refer to themselves as an extremist. After all, they're not crazy - everybody who disagrees with them is.

Now, Maj. Hassan did give a truly odd presentation in June 2007 entitled The Koranic World View As It Relates to Muslims in the U.S. Military. Stranger yet, he did this when he was expected to speak on a medical topic. His presentation was 50 slides long. It begins with general facts and figures about Islam and ended with the recommendation that Muslims soldiers be allowed to become conscientious objectors to increase troop morale and "decrease adverse result." In between are the controversial slides depicting Koranic verse that suggests that unbelievers will taste punishment of blazing fire, "like boiling oil, it will boil in their bellies" and that "as often as their skins are roasted through, We shall change them for other skins that they may taste the punishment."

That ought to have earned him some unfriendly attention. I've yet to see anything that definitively establishes that his supervisors did anything or not. But the expectation that this speech alone could be turned into grounds for dismissal from the service....?

Think about what that would mean. About what kind of a message that sends to loyal Muslim soldiers - or to Muslim Americans in general. "Sure, we'll let you in the military, but as soon as you say your religion is better than ours we're kicking you out."

I've been in the company of plenty of servicemembers who thought their religion meant that all non-Christians were going to roast in hellfire. A standard that would retain their services yet discharge Muslims for similar views is about as transparently bigoted as you can get.

But the far right is ready for that argument - it responds that "Political Correctness" has made us less safe. That somehow equality and diversity in the ranks has eroded the military's ability to protect itself.

First off, the militant who is dismissed from the service is merely a pissed off militant in the civilian sector. If Maj. Hassan had become citizen Hassan and had walked into a shopping mall with his two pistols - what would have been achieved? And we'd have the cost to decent, law-abiding Muslims who would suddenly be second class citizens at the insistence of a frenzied majority.

Memo to the nut-bags on the right: the idea that Muslims be treated differently under the law than members of other faiths is un-American. More importantly, it is unconstitutional, and an assault on a founding principle of democracy: equality under the law.

If you're against that, you are against the constitution - and I cannot imagine how you can defend America by undermining the very document to which this nation owes its creation and identity.

The inevitable first ruling on torture evidence

Shows up at last:

In the first ruling of its kind, a federal judge on Friday barred the federal government from using any statements made by a Guantanamo Bay detainee since he was captured in Afghanistan more than six years ago, finding that all of them were “a product of torture.”  U.S. District Judge Ellen Segal Huvelle did so two days after the Obama Administration notified her that it would not oppose the efforts by lawyers for Mohammed Jawad to block the use of any of those statements as a basis for keeping him in captivity.

(Via SCOTUS blog)

SCOTUS: Say it to my face

 I agree with Justices Scalia & Thomas.

Justice Kennedy, you're full of crap.

(Yeah, I know...it seems very weird to say that.)

Melendez-Diaz v. Massachusetts, deciding whether or not the confrontation clause applies to scientific evidence presented in court. This would be the fingerprint evidence, the DNA or hair sample that is offered as proof of guilt or innocence.

Previously, there was no constitutional requirement that the people who prepare this evidence be available for cross-examination.

Thanks in part to Scalia and Thomas, now there is.

Meaning if you're on trial and the prosecutor presents a damning crime scene report linking you to the crime - you have a right to haul the guy who wrote it into court to explain how he came to those conclusions and what methods he followed.

By itself, that doesn't seem like too big a deal, but when you consider that in many jurisdictions, such evidence is shielded from deeper scrutiny - you get an idea of what's so messed up.

Guy testifies that he saw me at the crime scene - my lawyer gets to cross examine him on the stand. See if he's credible, if he's a drunk, if he's pathological, if he has vision problems.

If that same guy works in a state crime lab and writes a report saying he found my fingerprints at the crime scene - all I used to be able to do was read the report. I could rebutt the evidence with my own experts - but if the author of the report was an incompetent. I'd never get to know.

And just yesterday, I was wondering if Justice Thomas gave a damn about anyone's rights because of this this:

Unlike the majority, however, I would hold that the search of Savana Redding did not violate the Fourth Amendment. (Safford Unified School Dist. #1 v. Redding)

That was his view of how school officials strip searched a 13-year old girl, against her will, without parental consent, to locate a single tablet of ibuprofen.

Once that kind of conduct is acceptable, you wonder what is left to defend.

Thomas' concurring opinion in Melendez-Diaz is pretty brief - so you wonder if he's grudgingly going along because Scalia told him to, or if he genuinely believes that the constitution exists and that it can be used to protect the rights of citizens.

Amazing.

More amazing, (to my mind anyway) is that Justices Kennedy & Breyer dissent - LOUDLY - against this opinion. They are joined by Roberts and Alito (which surprises me not at all), but Breyer thinks we should not be allowed to confront those who accuse us in the form of an evidence report?

Yikes.

NAMUDNO vs. VRA ends in a draw

You just have to wonder. The case that posed the biggest threat to the Voting Rights Act for decades has been decided - and the Supremes have elected to punt.

(Via SCOTUS blog)

With only one Justice voting to strike down Congress’s 25-year extension of the Voting Rights Act’s controversial Section 5, the Supreme Court on Monday interpreted the law in a way that saves it.  The Court said that all local units of government must be given the option to bail out of the requirement that they get Washington approval for any changes in their election laws or methods.

So, rather than hold Section 5 underwater until it dies - they've merely chosen to dangle its head over the water and ask people to load it up with heavy objects.

Oh, and Justice Thomas thought the court should have nullified Section 5, since-

...the violence, intimidation and subterfuge” that led to its enactment “no longer remains.”

True, there are no stats to show how many attempts to disenfranchise voters were never attempted under the VRA - but I imagine we'll get some stats as soon as more districts escape federal oversight.

Weak.

SCOTUS blog's Tom Goldstein has a similar view, although he's thinking Section 5 is drowning a lot faster than I do (and, in contrast to my opinion, he actually knows stuff).

Supremes: Requiring access to DNA evidence "Not our job"

(Via NPR)

The Supreme Court ruled Thursday that people convicted of a crime do not have the right to obtain DNA testing on evidence to prove their innocence.

The 5-4 decision involved the case of William Osborne, an Alaska man convicted of assault, kidnapping and sexual assault in 1993. Although the victim identified Osborne as one of her two attackers, court documents said her identification was tentative because her eyesight was poor and the assault happened at night.

In 2001, Osborne asked the state court for access to the evidence to obtain advanced DNA testing that was not available during the time of his original trial. Ultimately, he filed suit in federal court, saying the state of Alaska had no provision for post-conviction DNA testing.

Chief Justice John Roberts wrote in his majority opinion that Osborne should have exhausted his avenues for appeal in the Alaska courts. In addition, he said defendants have no freestanding right to DNA testing under the Constitution's Due Process Clause.

In other words, there may be a requirement that you have access to DNA evidence after your conviction, but it won't be coming from us.

Here's a fun game: Without reading the opinion - guess which justices signed on with Chief Justice Roberts?

Maddow's Whitehouse interview

Sen. Whitehouse is acting like the SSCI has the goods on the torture debate.

Good stuff all round.

(H/t to emptywheel, natch)

Pelosi shows some spine

Trust Dr. Maddow to get to the bottom of things. According to early interview transcripts obtained by Glenn Greenwald, Nancy Pelosi told Rachel Maddow that she "absolutely" would support a criminal investigation of NSA wiretapping.

Color me suspicious - but that would be the first good news on the wiretapping issue for quite some time.

Packing the Court

JB over at Balkinization has posted one of the four recommendations for judicial reform being sent to Congress.

The lone one JB supports concerns appointments to the Supreme Court. Get a load of this:

• A new appointment is made to the Supreme Court every two years.
• All justices currently on the court remain
• Court cases are heard by the nine junior justices on the court.
• Justices who are senior to nine or more justices are considered Senior Justices
• Senior justices will fill vacancies on the court when junior justices recuse themselves or are otherwise unavailable
• Senior justices called to fill vacancies will be called in order of reverse seniority.

As in, the Supreme Court would have a bench behind the *ahem* bench.
The more junior justices there are beneath you, the less chance you will have to decide a case.

Senior Justices would still be allowed to rule on petitions for certiorari and court rules, but couldn't write opinions unless they were filling a vacancy.

Interesting.

Some flavor of this would certainly make the Court more responsive to the current political climate - but I have think that more turnover means more frequent political struggles. True - each president could count on an equal number of appointments - so I guess that's a plus. This whole "appoint the young & healthy" trend would become moot.

Dunno. I guess if the appointments became a known quantity the court's composition would stop being as subject to acts of God (death, disease, etc).

Sheldon speaks out

Sen. Sheldon Whitehouse (D-RI) has clearly heard all he can stand about letting the Bush administration's actions go unchallenged, "so we can move forward."

Sen. Whitehouse unloads both barrels into this suggestion, and even reloads a few times.

A little bright, healthy sunshine and fresh air, so that an educated population knows what was done and how, can show where the tunnels were bored, when the truth was subordinated; what institutions were subverted; how our democracy was compromised; so this grim history is not condemned to repeat itself; so a knowing public in the clarity of day can say, "Never, never, never, again;" so we can keep that light - that light that is at once America's greatest gift and greatest strength - brightly shining. To do this, I submit, we must look back.

It's a good speech. Pity he won't get much airplay.

(H/t to Emptywheel)

Neal Katyal as Deputy Solicitor General?

He of Hamdan? in the SG's office? Likin' that.

(H/t to Emptywheel)

Democracy index

I'd read an article by Heather Gerkin awhile back that finally sank in - particularly this part that she added on the Election Law Blog:

I have recently proposed that we create a Democracy Index, ranking states and localities based on how well they run elections. Without good data on how the election system is performing, voters learn that there's a problem only when an election is so close that the outcome is in doubt and reporters devote the time necessary to investigate what actually happened. That's a bit like measuring annual rainfall by counting how often lightning strikes. The Index would help us assess the problems that occur routinely, before they cause what Rick Hasen has called an "electoral meltdown." Moreover, it would allow voters to reward strong performance. Right now, voters lack the information they need to differentiate between a bullet dodged and a well-run system ...

Makes an awful lot of sense to me.

Rather like a public-facing rating system for restaraunt cleanliness. We assume the place we go to is decent - but we have no information to base that on.

Underachievers thrive on that kind of a system. My sister used to tell me horror stories of her ride alongs with restaurant inspectors. After she was done, I asked her what happened to the places that were bad, but not bad enough to be shut down.

She laughed. "They keep doing what they're doing. After all, from their perspective - they passed."

I imagine there are any number of localities that are teetering on the edge of failure - waiting for a close election to burst into the news.

It'd be nice if they were in the spotlight before the next election, no?

Justice delayed - but justice nonetheless

Federal Judge orders the release of five Guantanamo prisoners

In other news, the DOJ can't get it done

Remember the US Attorney scandal?

Emptywheel does

Democracy Now

Glenn Greenwald is posting on the disgraceful behavior of the Police surrounding the Republican National Convention.

I'm all for law and order - but a policeman who arrests a journalist for asking a question (which then causes the Secret Service to pull her access credentials) isn't doing their job.

Watch for yourself. Here's Democracy Now's Amy Goodman getting hauled off for having the temerity to ask police why her producers were arrested:



Greenwald's Update VII is an interview with Goodman after her release.


I understand if there's a true riot underway, police may not have time to route legitimate inquiries to their Sargent - but give me a fricking break. This lady poses a threat?